Third Open Hearing

Thursday, November 25, 2004

An Open Hearing was held on matters concerning the Constitution of Japan. After statements were heard from persons who volunteered to speak at the hearing (hereafter, "speakers"), questions were put to them.

Morning:

Speakers

Members who put questions


Afternoon:

Speakers

Members who put questions

Main points of statements by speakers (morning)

SHIRAISHI Masateru

>> The Emperor's status under the Emperor-as-symbol system is consistent with Japanese tradition. In practice, however, outside Japan the Ministry of Foreign Affairs accords him the status of head of state and other countries treat him accordingly. The Constitution should stipulate clearly that the Emperor represents the nation as its head of state.

>> Textually, it is unclear whether Article 9 recognizes the right of self-defense or not; furthermore, using a broad interpretation of the text to recognize this right leads to public distrust. To protect the nation, we should add the following sentence to Paragraph 2 of Article 9: "However, war potential can be maintained for the purpose of self-defense against unlawful attack by another nation."

>> In adopting pacifism, Japan is not seeking peace for itself alone; moreover, as Japan lacks resources of its own, trade is vital to its survival. Hence, we could say that Japan can only be at peace when the world is at peace. We should add a third paragraph to Article 9 stating, "Notwithstanding the provisions of the preceding paragraph, at the request of the United Nations, force may be used as a means of resolving international disputes."

>> Because of the absolute nature of private property, especially the right to own land, it sometimes happens that local bodies are unable to construct necessary roads. The words "The right to own or to hold property" in Article 29, Paragraph 1, should be changed to "The right to own or to hold property which is essential to the livelihood of the people." Also, Paragraph 2 of Article 29 should be revised to allow restriction of property rights not only by laws but also by "basic ordinances" (to be enacted by a two-thirds majority in local assemblies).

>> To establish local autonomy, the powers of local governments should be clarified and they should be made into regional entities with powers approaching those of the central government. We should introduce a system of units larger than the prefectures and establish a fiscal base for these units, or do-shu, so that they can be responsible for wide-area administration.

>> We should clearly state the right of local governments to enact their own legislation and permit them to establish "basic ordinances" which would take precedence over laws and over ordinances enacted by the do-shu, to the extent that they did not infringe powers proper to the national government and the do-shu.

>> There is no need to limit the imperial succession to males, since the public today regards gender equality as a matter of course.

>> Constitutional revision is a duty of the Diet, and, according to a newspaper survey, a majority of Diet Members favors revision. Further, the requirement of a concurring vote of two-thirds or more of all the Members of each House to initiate a constitutional amendment should be reduced to one-half.


SHINOHARA Hiroaki

>> Because Cabinet-sponsored bills undergo coordination within the government for some time before they are submitted to the Diet, there is very little latitude left at that point to make changes, and the deliberation process in the Diet has thus been reduced to a mere formality. Bills should be presented in a simpler form with the expectation that they will be amended in the Diet. It is also important to write the laws in such a way that it is clear how they are to be applied, because at present one has to refer to cabinet orders, ministerial ordinances, and notifications in order to understand how to apply the laws.

>> The idea that all legislation should be introduced as Members' bills is not appropriate under a parliamentary cabinet system. Members' bills should be utilized in areas where it is difficult for the government to make proposals. In practice, it would be inefficient to rely on Members' bills as an alternative to Cabinet-sponsored bills because, for one thing, they receive very little deliberation. Members' bills are suited to programmatic contents which lay out a broad framework.

>> The Diet should carry out investigations in conjunction with the Board of Audit; for example, the system that allows the Diet to request an audit by the Board should be employed more actively. In revising the Constitution, we should also consider the possibility of making the Board of Audit an auxiliary of the Diet, as is done in various other countries.

>> Despite the emphasis on an abstract body of law in this country, the Supreme Court can decide questions of constitutionality only when a concrete case comes before it. As a result, it has been left to the Cabinet Legislation Bureau to interpret the Constitution. In light of this situation, we should revise the Constitution to create a Constitutional Court.

>> The heads of the Cabinet Legislation Bureau and the Legislative Bureaus of both Houses should be appointed from among Members of the Diet, thereby clearly assigning political responsibility to open up discussion on the interpretation of the Constitution among themselves.

>> If bills are to be discussed with the expectation that they will be revised in the Diet, a longer deliberation period will be needed. Accordingly, the system of Diet sessions should be reconsidered and the Diet should remain in session year-round.

>> The opposition often requests that Cabinet ministers appear before committees. A minister's main job, however, is planning and drafting ministry policies. We should therefore review the situation, drawing on examples such as that of Britain, where questions are often answered by Vice Ministers or Parliamentary Secretaries. Also, instead of insisting that answers be consistent with those of previous ministers, Members should place more importance on an open-minded and lively debate.

>> On the condition that the two Houses continue to deliberate independently, their Secretariats and Legislative Bureaus should be merged as far as possible.

>> We should revise those parts of the Constitution that have become divorced from reality as the premises of governance have changed. Topics that need to be discussed over time, such as Article 9, should be deferred, and priority should be given to the more practical revisions. In the process, as we think about the ideal form of the new Constitution, we should keep in mind the question of the proper relationship between the Diet and the Cabinet.


HIRATSUKA Akifumi

>> The Constitution has an undeniable value. Nevertheless, the fact that it contains an amendment clause means that the possibility of discussing constitutional revision in the Diet should not be ruled out.

>> With regard to holding a national referendum on constitutional amendments, the Diet needs to consider such matters as who should be eligible to vote, the voting method, and so on, and to give them concrete form. The Diet should also discuss whether a majority of affirmative votes would meet the requirements for amendment in the event of a low voter turnout.

>> Before we can revise the Constitution, we need to know its contents and what they mean. However, the citizens who will be voting in referendums generally come in contact with the Constitution only during the years of compulsory education, and, even then, the subject is covered only briefly and by teachers whose own knowledge of the Constitution leaves much to be desired.

>> It will be difficult for the nation to vote on the basis of partial information or knowledge obtained through the media in the time between initiation of an amendment and the referendum itself, although this will depend to some extent on the length of that period. The government should endeavor on a daily basis to ensure a deeper understanding of the Constitution among the public; the public also have a duty to inform themselves.

>> The Constitution and the law are highly specialized, and only a small proportion of the people can understand them. When laws are revised, efforts are sometimes made by companies to explain the changes to their employees, but the Constitution is seldom encountered directly in everyday life and there is little opportunity to learn about its contents. The Constitution will be perceived as remote if it is always seen as the subject of abstruse debate in the Diet.

>> We should create a framework within which citizens can relate to the Constitution. In particular, the younger generation should be encouraged to take an interest in and understand the Constitution. Programs will soon be launched to assist "NEETs" (persons "not in education, employment or training") to become self-supporting, but we should first make sure that they are aware of their obligations to work, to pay taxes, and so on.

>> Learning about the Constitution as part of compulsory education leads to a fundamental understanding of issues that we should all think about, such as the duties of the people and the public welfare. It is important to ensure that the teaching is unbiased.

>> The "lay judge" system is due to be introduced, and citizens will have more contact with the Constitution in the future. Even those who are not familiar with the Constitution at present will need to be able to cast their vote in national referendums on proposed amendments. In light of these trends, it is important that the average citizen have a personal understanding of the Constitution.


Main points of questions to speakers (morning)

SHIBAYAMA Masahiko (Liberal Democratic Party)

(To Mr. SHIRAISHI)

>> Is it your position that female succession to the throne should be treated, under the Constitution, as a matter of gender equality which extends to the Emperor?

>> If, in the future, a female heir to the throne were unable to perform her duties, would her consort become regent, or would the Crown Prince? Also, would a Crown Princess be allowed to become regent?

>> The points that you made about revising Article 9 deserve study, but do you think that the case for revising Article 9 can gain acceptance while the bar for constitutional amendments is set so high?

>> In your proposed revision of Article 9, Paragraph 2, does the term "self-defense" include the right of collective self-defense?

>> Some people think that we should make explicit provision in the Constitution for matters including national emergencies and the three non-nuclear principles. Do you agree?

>> What concrete procedure do you envisage for restricting property rights?

>> What do you think about term limits for the heads of local public bodies?

>> In regard to your proposal of "basic ordinances" that would take precedence over laws, the Supreme Court's decision in the case of a demonstrator charged under Tokushima City's public order ordinance suggests that supplementary ordinances (which are stricter than the relevant laws) and additional ordinances (which expand the areas covered by the relevant laws) in an appropriate form could be recognized. Would you like to comment on this point?

(To Mr. SHINOHARA)

>> What do you think of the argument that Diet Members should have the exclusive right to submit bills?

>> In actual practice, I doubt that there would be enough time for the Diet to discuss bills submitted at the outline stage, before they were completed. Would you like to comment?

>> I think that the review of bills could probably be improved by changing the deliberation process, e.g., revisions could be made on each point of contention at the committee stage. Do you agree?

>> What are your views about an ombudsman system?

>> Do you have any concrete measures in mind to reform the Committee on Audit and Oversight of Administration?

>> A case has been made for establishing a Constitutional Court, and also for creating a permanent forum for constitutional debate by establishing a Committee on the Constitution in the Diet. What are your views regarding these proposals?

>> Do you think that the administrative model based on prior coordination, in which various actions are regulated by government ordinances, notifications, and prior approval, has become impractical?

>> If the Diet remained in session year-round, I think one problem would be a lack of opportunity for Members to give sufficient study to policy matters; do you agree? Also, one could argue that it would be difficult to merge the Secretariats of the Upper and Lower Houses because the two chambers are self-regulating in nature; would you like to comment?

(To Mr. HIRATSUKA)

>> If lessons about the Constitution were included in the compulsory education curriculum, wouldn't there be a risk of some teachers bringing an ideological or similar bias to the subject and influencing children, who have little critical capacity?

>> The concept of respect for the rights of the individual seems to have become distorted, and the belief that one can do as one likes as long as it doesn't bother other people is becoming increasingly widespread. What do you think about this?

>> Do you think it would be better to put all the proposed constitutional amendments to the vote in a single national referendum, or to hold separate referendums, one article at a time?

>> Against the background of a changing view of individual rights, as a personnel manager, do you have a sense that the mentality of the students who come to you for job interviews is changing? Some people argue that, to address such problems as young people's lack of communication skills, it is important that they experience overseas travel, part-time work, and so on. Do you agree?


MABUCHI Sumio (Democratic Party of Japan and Club of Independents)

(To all speakers)

>> How did you learn about the invitation to members of the public to speak at this Open Hearing? Also, if you have any ideas about how to increase the public's interest in the Constitution, I would like to hear them.

(To Mr. SHIRAISHI)

>> With regard to the Emperor's being head of state, I think the problem is how to define that term, and we should not be too fixated on making express provision in the Constitution; what are your views on this point? Also, does the fact that the Emperor is not explicitly stated to be the head of state cause any actual difficulties?

>> Restrictions on property rights for the sake of the public welfare are permitted, and the courts have recognized such restrictions on the basis of ordinances as well as laws. The real question is how to guarantee property rights against infringement by public authority, or, in practice, how to determine what constitutes the public welfare. In the lawsuit opposing the building of a condominium in Kunitachi City on the grounds of protecting scenic value, the trial court and the court of appeal arrived at different decisions; what are your views on the case?

(To Mr. SHINOHARA)

>> I think that a valuable aspect of the bipartisan system that Japan is aiming to develop is that the opposition not only criticizes the government's proposals but also puts forward alternatives of its own, thus showing the public where the issues lie, and these alternatives are then incorporated in the final legislation to some extent through revisions. What are your views in this regard?

>> I think that, because of practical operational problems, it would be difficult to introduce year-round Diet sessions, as you advocate. Would you like to respond?

(To Mr. HIRATSUKA)

>> When you consider that there are already complaints about declining standards in the schools, it could prove difficult to introduce lessons on the Constitution within the limited time available. Would you like to comment?


FURUYA Noriko (New Komeito)

(To Mr. SHIRAISHI)

>> I would like to hear your views on Article 9 and the ideal form of international contributions.

(To all speakers)

>> Do you think that the dispatch of the Self-Defense Forces to Iraq should be extended beyond December?

(To Mr. HIRATSUKA)

>> How do you think the younger generation can be encouraged to take an interest in politics and the Constitution?

(To Mr. SHINOHARA)

>> In regard to the form that administrative oversight should take in the future, I think we need to strengthen the functions of the Board of Audit. Do you agree?


YAMAGUCHI Tomio (Japanese Communist Party)

(To Mr. SHIRAISHI)

>> The head of state possesses sovereign power as head of the executive branch and represents the state externally. I think that, under the Constitution of Japan, the Prime Minister is usually understood to be the head of state. When you use the term "head of state," what exactly do you mean?

>> You advocate adding a third paragraph to Article 9 to enable Japan to take part in settling international disputes under the direction of the United Nations, but what do you mean by "at the request of the United Nations" in this context? Also, do you see your proposal as compatible with the UN Charter, which rejects the use of force as a means of resolving international disputes?

>> In the area of local autonomy, what is the relationship between your proposal to "clarify the powers of local governments and strengthen their right to enact their own legislation," and your proposal to "permit the do-shu to establish 'basic ordinances' which would take precedence over laws, to the extent that they did not infringe powers proper to the national government"?

(To Mr. SHINOHARA)

>> I think that the main reasons why the Japanese courts do not exercise the power of judicial review adequately are the fact that appointments to the Supreme Court are politically influenced, and the lack of guarantees of the freedom and independence of the justices. Would you like to comment?

>> In connection with administrative oversight, ombudsmen have already been introduced in the field of local administration; what do you think about this system?

(To Mr. HIRATSUKA)

>> Are you in favor of the strict requirements for constitutional amendments laid down by Article 96?


TERUYA Kantoku (Social Democratic Party)

(To Mr. SHIRAISHI)

>> Do you think that the Emperor should be explicitly stated to be head of state, possessing sovereign power as head of the executive branch and the right to represent the nation abroad?

(To Mr. HIRATSUKA and Mr. SHIRAISHI)

>> In the draft outline of constitutional revisions recently issued by the Liberal Democratic Party, the requirements for constitutional amendments are relaxed. What is your view of this proposal?

(To Mr. SHINOHARA)

>> Some people hold that certain tenets of the Constitution, such as the three fundamental principles and the amendment requirements, cannot be altered; others contend that there are no limits to constitutional revision. What are your views regarding the limits to revision?

>> What do you think about the idea of allowing Diet Members to revise the Constitution without submitting amendments to the referendum process?

>> Do you think that proposed amendments should be put to separate referendums one article at a time, or is it sufficient to ask whether the Constitution as a whole should be revised?

(To Mr. HIRATSUKA and Mr. SHINOHARA)

>> What do you think about the view that Article 9 should be revised to allow Japan to exercise the right of collective self-defense?


Main points of statements by speakers (afternoon)

YAMADA Junpei

>> The need has arisen to recognize rights that were not foreseen when the Constitution was enacted, such as the right to privacy. It is not enough to recognize them on the basis of interpretation of Article 13 alone. Rights that deserve to be protected should be given explicit constitutional protection.

>> Some people are in favor of changing from a bicameral to a unicameral system, but it would be better to strengthen the powers of the House of Councillors and to give full play to its special nature as "the seat of common sense."

>> Regarding popular election of the Prime Minister, there has not been enough detailed discussion of the election method. Moreover, as things stand at present, the elections would risk becoming a popularity contest among a public that is not yet fully conscious of the meaning of popular sovereignty. For these reasons, it is too early to introduce popular election.

>> It is not necessary to create a Constitutional Court in order to have the judicial branch actively decide constitutional questions; instead, improvements could be made by strengthening the powers of the judiciary while retaining the judicial system's existing framework.

>> Although a do-shu system might make for more efficient administration, when long-established local governments are merged, as we have seen in the current round of municipal mergers, there is a risk that people will lose their love of their local heritage. Such a move would be a step backwards in terms of both resident self-government and self-government by local entities.

>> The Constitution is the most important basic law from the public's point of view, and it is only proper that it takes a national referendum to revise it. However, in addition to the opportunity to vote, the public must have access to information and a forum for debate, and they are looking to the Research Commission on the Constitution to perform this role.


SEIRYU Miwako

>> My favorite part of the Constitution is Article 9. It answers in a very direct way to my wish to rid the world of war.

>> The sight of innocent civilians losing their lives through terrorism and war has made me acutely aware that war is indiscriminate murder. War should not be condoned for any reason.

>> If every nation observed the principle that "war potential will never be maintained" in Article 9, Paragraph 2, a world without war could become a reality. Article 9 can therefore be said to offer a fundamental solution to war.

>> Article 9 is imbued with the wisdom and the prayers of many victims of war, in other Asian countries and in Japan, who have vowed "Never again," both for themselves and for others. Article 9 shows us the right path.

>> The operations of the Self-Defense Forces in Iraq violate Article 9 and come close to engaging in war. The role that Japan is being called on to play in the world today, as the nation that has Article 9, is to seek peaceful negotiated solutions, not to resort to force.

>> As reflected by discussions at the UN Disarmament Conferences, in the context of the international community's desire for peace, Article 9, Paragraph 2 is a beacon of hope. As the only nation to have experienced atomic attack, Japan should lead the world in the direction indicated by Article 9.

>> We should not change Article 9; we should rid the world of war. I know that this is an idealistic thing to say, but we should strive to make our ideals a reality. We should not change Article 9 without first trying to do that.


MORI Nobuyuki

>> I serve as head of the Central Executive Committee of the Japan Pensioners' Union. Constitutional provisions such as Article 9 and Article 25 often come up in conversation among us older people because they affect the social security system. The Constitution is of immediate personal concern to us.

>> Those of us who lived through World War II, which took the lives of so many of our friends and of people in other parts of Asia, welcomed the Constitution of Japan with joy as a peace constitution. Founded on wartime sacrifices, the Constitution is underpinned by the desire for peace and democracy and by efforts to achieve these things. Today, it shines even more brightly than it did when it was created.

>> Recently, there have been moves to change the Constitution. But its ideals, especially those of Article 9, are deeply rooted among the Japanese people and are shining more brightly than ever on the international scene. We must maintain Article 9 so as never again to involve the people of Japan and the world in the tragedy of war.

>> Before advocating revision, we should first check to see how far the ideals and goals of the Constitution have been realized. That is our duty as stated in Article 99 (the obligation to respect and uphold the Constitution).

>> Distrust and anxiety over the pension issue have been steadily growing among the public after the ruling parties forced through a pension reform bill and after various problems came to light earlier this year, including the fact that certain members of the Cabinet and the Diet have not paid their pension premiums.

>> The declining birthrate and the aging population, which are blamed for the pension crisis, are not natural phenomena; they can be overcome by the efforts of society. For a model, we should look to the approaches adopted by local governments and by Sweden. In both cases, women's participation in society and overcoming a low birthrate are treated as two sides of the same coin.

>> Let this be the century that sees the ideals and goals of the Constitution made real. Let us move forward, learning from history so that we do not repeat the same mistakes.


Main points of questions to speakers (afternoon)

HANASHI Yasuhiro (Liberal Democratic Party)

(To all speakers)

>> By what route did you learn that members of the public were invited to speak at today's Open Hearing?

>> I think the mass media could do a better job of informing the public about the Constitution; for example, they should give more coverage to the activities of this Commission. What do you think?

>> I believe that political parties should specify the course of action they intend to take on constitutional issues. They should not ask the public to choose a government without taking a clear position on the Constitution. Do you agree?

(To Mr. YAMADA)

>> You cited the right of privacy as an example of new human rights. What other new rights might be considered?

>> Some of the rights that are categorized as new human rights may be violated through the actions of parties other than the state. What is the significance of stipulating these rights in the Constitution?

>> It seems to me that there is a lack of consideration for other people these days. Accordingly, I think we should clearly stipulate in the Constitution that the rights of others shall be respected. Would you like to comment?

>> You said that it would be premature to create a Constitutional Court. But there are problems in the way the courts presently handle questions of constitutionality; namely, (a) they avoid a decision by citing the "act of state" theory; or (b) they sometimes state a finding of unconstitutionality in the "obiter dictum" portion of the reasons for their decision. Taking these problems into account, do you still hold the same view on the creation of a Constitutional Court?

(To Ms. SEIRYU)

>> Do you consider the Self-Defense Forces unconstitutional? Also, are you aware that almost every political party considers them to be constitutional?

>> If the Self-Defense Forces are unconstitutional, doesn't their existence give other countries reason not to trust Japan? I believe that we should recognize their existence as a preliminary to imposing clear limits on their operations, which would also help clarify our pacifist stance. Would you like to comment?

(To Mr. MORI)

>> It seems to me that Article 25, which declares the right to maintain a certain standard of living, does not contain the concept of "mutual assistance." Do you agree?


WADA Takashi (Democratic Party of Japan and Club of Independents)

(To all speakers)

>> How do you evaluate the ideals that the Constitution aims to realize in fields other than those that you discussed in your initial statement?

>> If the Diet initiates a number of constitutional amendments and submits them to a national referendum, how do you think the referendum should be framed in order to best reflect the will of the people? For example, should all the amendment clauses be voted on in a single referendum, or should each one be put to the vote separately?

(To Mr. YAMADA)

>> How do you view the presidential system of the United States, which is a different system of government from ours? Further, do you think that it is functioning well?

>> Are you satisfied with Japan's parliamentary cabinet system?

(To Ms. SEIRYU)

>> Do you agree with the view that, knowing full well that there are people and nations in this world that possess weapons, Japan should still choose not to do so?

(To Mr. MORI)

>> Do you think that the existing text of Article 9 is the best possible wording?


FUKUSHIMA Yutaka (New Komeito)

(To all speakers)

>> How do you think Japan should respond in the event that North Korea fires a missile at it, or a Chinese nuclear submarine intrudes on its territorial waters?

(To Mr. YAMADA and Ms. SEIRYU)

>> What importance does the younger generation attach to the Constitution?

(To Mr. YAMADA)

>> You spoke of having had to memorize Article 9 at school. I believe that education about the Constitution must not consist of rote learning or a one-way process. Would you like to comment?

(To Ms. SEIRYU)

>> In the field of international political studies, there seems to be a general consensus that the main reason that Japan has been able to remain at peace for nearly sixty years was, for most of that period, its alliance with the United States under the Cold War structure. How do you assess this point of view?

(To Mr. MORI)

>> Why do you think Japan took the road it did in spite of having other options in the prewar years, during the war with China, and when it launched hostilities against the United States?


YAMAGUCHI Tomio (Japanese Communist Party)

(To Mr. YAMADA)

>> You did not mention pacifism among the topics that should be discussed in connection with the Constitution. What are your views on the pacifist principles of the Preamble and Article 9?

>> What did you mean when you said that the Constitution is close to us personally?

(To Ms. SEIRYU)

>> You said that the war in Iraq made you think about the Constitution. Would I be right in thinking that the younger generation is experiencing a growing interest in the Constitution because of worldwide developments relating to the war in Iraq?

>> In studying the Constitution at university, what things particularly impressed you, or what discoveries did you make?

>> It is written in the Constitution that the ideals it embraces, such as pacifism and popular sovereignty, should be handed on to future generations. Does your statement signify that the younger generation today wants to carry on these ideals?

>> From a standpoint that values Article 9, what sort of work (such as tackling environmental or refugee problems, for example) do you think this country's politicians should undertake?

(To Mr. MORI)

>> You said that when the Constitution was enacted, you welcomed it with joy. I would like to hear about that in more detail.

>> Listening to the discussion today, did you have any impressions as to differences between the constitutional debate among older and younger people?

(To Mr. YAMADA and Ms. SEIRYU)

>> What were your impressions as you listened to Mr. MORI's statement?


DOI Takako (Social Democratic Party)

(To all speakers)

>> How did your impression of the House of Representatives' Research Commission on the Constitution viewed from outside differ from the actual impression you had today?

(To Mr. YAMADA)

>> New human rights are not going to be realized simply because they are provided for in the text of the Constitution; it takes concrete efforts to make rights a reality. I believe that, even under the existing Constitution, new human rights can be realized by legislation. What do you think about this point?

(To Ms. SEIRYU and Mr. MORI)

>> I think that, properly speaking, the Constitution should only be revised when there is more of a popular movement calling for revision. At present, among the public, as opposed to the Diet, there is actually a stronger groundswell of opinion in favor of protecting the Constitution. I believe the important thing at this time is not to change the Constitution but to respect it. Would you like to comment?