Meeting Agenda
Matters relating to the Constitution of Japan
1. Free discussion was held on the topics "Finance" and "Local
Self-Government."
2. Free discussion was held on the topics "Judiciary," "Amendments," "Supreme Law," and related matters.
Finance and Local Self-Government
Main points of initial round of comments by representatives of each party
HAYAKAWA Chuko (Liberal Democratic Party)
>> Most of the provisions on public finances are still valid today; with the exception of Article 89, they do not require revision.
>> Although it is questionable whether the Board of Audit system has been functioning properly, such a system is necessary because it gives substance to popular sovereignty and serves to stabilize public finances. We should aim for an open Board of Audit by appointing specialists from the private sector.
>> The first part of Article 89 was a groundbreaking measure to bring about a separation of Shinto and the state. However, the second part should be revised in line with the actual circumstances under which it is currently applied, since, as it stands, it allows the interpretation that subsidies for private schools are unconstitutional, and since there is also a need for disbursements to enterprises such as NPOs and NGOs. Further, expenditures for items such as donations to purchase tamagushi on the occasion of a shrine visit should be recognized.
>> Due to the strained state finances, we should consider expressly stipulating the principle of fiscal balance in the Constitution, and we should consider fiscal management from the viewpoint of ensuring that it is public, fair, and transparent.
>> There is no need to revise the phrase "the principle of local autonomy" in Article 92 since, while it may be difficult to understand, it is an important element of the Constitution.
>> Adopting a do-shu system will require revision of the Constitution. It is possible that the role of the prefectures will come to an end as municipal mergers proceed, but while the municipalities remain as weak as they are at present, the prefectures have a role to play.
>> Local governments should naturally have the right to enact ordinances, but the right to levy and collect taxes and judicial power should remain with the national government.
>> The House of Councillors could become the body that reviews the constitutionality of laws and ordinances, like France's Conseil Constitutionnel.
>> The right of foreign nationals to vote in local elections should be addressed not by stipulating it in the Constitution but by revising the Nationality Law.
FURUKAWA Motohisa (Democratic Party of Japan and Club of Independents)
>> We should stipulate the principles of fiscal discipline and public accounting in the Constitution and create a system that will allow us to discuss the present and future fiscal burden, including oversight by an impartial third party under highly transparent rules and appropriate disclosure of information.
>> We should create a system to enable multi-year budgets. We should also both strengthen the functions of the Board of Audit and make provision in the Constitution for the creation of a Board of Administrative Oversight in the Diet.
>> We should create a system to enable the results of review of the final accounts to be reflected in the budget for the next fiscal year.
>> Since the four articles of Chapter VIII are not functioning adequately, we should declare in the Constitution that Japan will become a decentralized state, and we should make express provision to allocate administrative powers based on the principle of complementarity and to strengthen the right to enact ordinances.
>> We should provide different options for organizing local government in different localities, for example, by introducing a city manager system, and we should also establish systems of residents' referendums and residents' initiatives.
>> Together with recognizing the right of local governments to levy independent taxes, we should establish a new, horizontal system of fiscal adjustment to reconcile disparities between regions, in place of the local allocation tax.
YAMANA Yasuhide (New Komeito)
>> We should recognize the right of local governments to levy independent taxes, and change the word "taxes" in Article 84 to "national taxes."
>> The principle of single-year budgets leads to a rush to consume allocations at the end of the fiscal year, and also causes the system for compiling budgets to become ossified. We should also recognize multi-year budgets.
>> We should introduce corporate accounting methods and publish fiscal information that is clear and readily understandable to the public.
>> We should make the Board of Audit an auxiliary of the Diet and empower it to recommend improvements to the Cabinet and the Prime Minister based on the results of audits.
>> Municipal mergers have the desirable effect of improving the basis of local administration and finances. On the other hand, there are concerns that they are reducing the spirit of working together in local communities, as well as residents' awareness of their local culture and traditions.
>> The existing Constitution has only four articles on local self-government, and the meaning of "the principle of local autonomy" is unclear. We should therefore rephrase the provisions more clearly and include elements relating to decentralization and democracy.
>> In allocating roles between the central and local governments, it is important to have the perspective of mutual cooperation, with both sides oriented toward the common goal of increasing residents' welfare.
>> The Constitution should require the central government to support local autonomy and sound management and prohibit the shifting of fiscal burdens to the regions.
>> We should make explicit provision in the Constitution for the power of local governments to levy independent taxes, so that local residents and administrations can determine their own tax items and rates. Also, there is a need for a new, horizontal system of fiscal adjustment in addition to the local allocation tax.
YOSHII Hidekatsu (Japanese Communist Party)
>> The Constitution contains detailed provisions on public finances because, based on the lessons learned from the prewar years, it adopted the principle of fiscal constitutionalism, which dates back to the Magna Carta.
>> It is irresponsible of the ruling parties to advocate making express provision for fiscal balance in the Constitution when successive governments, in their management of public finances, have ignored the same principle laid down in the Finance Law.
>> Successive governments have taken away the income redistribution function of taxes by relaxing progressive tax rates, among other measures, thereby widening the gap between rich and poor.
>> The Board of Audit can hardly be said to be functioning adequately, given its failure to point out irregularities in police accounts, for example. There is a need to improve the system.
>> The government's own interpretation is that private school subsidies are constitutional with regard to Article 89. The same interpretation is also a natural consequence of Article 26.
>> "The principle of local autonomy" referred to in Article 92 consists of resident self-government and self-government by local entities, and it is particularly important to recognize that self-government by local entities is founded on resident self-government.
>> It is problematic that local self-government is being weakened and municipalities are being forced to merge.
>> I am opposed to the introduction of a do-shu system because it will weaken resident self-government.
DOI Takako (Social Democratic Party)
>> The Meiji Constitution provided for a system of continuing expenditures, but the present Constitution does not. This is due to reflection on the past abuse of the system for military spending, and it is the intent of the present Constitution not to recognize such a system. It is also contrary to the principle of single-year budgets stated in Article 86, and it lacks transparency.
>> In budget deliberations, the general account and numerous special accounts and other items are presently voted on together. We should allow each account to be considered separately and to be revised by the Diet.
>> This Commission should review the budget for its final report.
Comments after the first round
OMURA Hideaki (Liberal Democratic Party)
>> The adoption of multi-year budgets and the provision of budget-related information are matters that can be handled by legislation.
>> We should establish programmatic provisions in the Constitution calling for the recovery and maintenance of fiscal balance in state finances.
>> We should map out a course in which local governments are responsible for self-government in close contact with residents, and we should make express provision in the Constitution for matters including the organization, powers, and revenue sources of local governments.
>> We should introduce a do-shu system. We should allow local governments a greater degree of freedom in deciding their own organization, and we should recognize simplified forms of municipal government.
>> It is questionable whether the uniform rules governing the establishment of local Boards of Education are appropriate.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
>> Isn't it unreasonable to interpret Article 9 strictly and Article 89 loosely?
>> Article 89 has become divorced from its original intent, which was to establish a certain distance between education and politics or government, and discrimination has arisen between private schools, which are eligible for subsidies, and preparatory schools, which are not.
>> To fulfill the intent of Article 26, it would be sufficient to provide subsidies to pupils attending private schools or their parents, rather than to the schools themselves.
HANASHI Yasuhiro (Liberal Democratic Party)
>> Article 89 should be revised, since the English word "control" in the GHQ draft has been translated shihai (rule) instead of kantoku (supervision), giving rise to a situation that departs from the original intent.
>> I have a high regard for the provisions on local self-government, but in considering the introduction of a do-shu system, I fear a possible crisis in which the do-shu's increased powers would lead to fragmentation of the nation. To avoid this, we need to place importance on achieving a balance between the governance systems at the national and do-shu levels, as seen in various other countries.
MASUYA Keigo (New Komeito)
>> To consolidate the series of decentralization reforms, including the "trinity reforms," we should revise Article 92 to clarify the phrase "the principle of local autonomy" and set forth, as part of that principle, the relationship between the national and local governments and other matters stipulated in the Comprehensive Decentralization Law.
>> We should set forth the basic principles of taxation and public finances explicitly in the Constitution.
>> A do-shu system can be introduced only after provision has been made in the Constitution for a two-tiered structure consisting of basic units and larger geographical units of local government. Even so, the do-shu cannot be granted the power to enact legislation or judicial power.
FUNADA Hajime (Liberal Democratic Party)
>> We should establish programmatic provisions in the Constitution calling for fiscal balance, but we should nevertheless remain flexible with regard to increased government spending to stimulate the economy and related measures.
>> The principle of single-year budgets should be maintained as a general rule in order to achieve fiscal balance, but this principle could be relaxed within certain limits, for example, in special cases approved by the Diet.
>> "The principle of local autonomy" is said to consist of self-government by local entities and resident self-government; of these two, greater importance should be placed on the former. Residents' referendums can result in a disconnect between the wishes of residents and their elected assemblies, and they are not a panacea. It is important to strike a balance between the two.
NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)
>> The relationship between Article 89 and the reforms of public service corporations should be set in order.
>> There has been no progress in transferring powers to the regions in the area of enacting normative legislation.
KANO Michihiko (Democratic Party of Japan and Club of Independents)
>> In view of the bloated fiscal deficit, we should stipulate the basic principle of fiscal balance in the Constitution.
>> We should explicitly stipulate in the Constitution that the information on the state of national finances required by Article 91 should be reported in a form that the public can readily understand, thus making it possible for them to feel the pain and judge for themselves.
>> We should link the activities of the Board of Audit and the Diet by, for example, requiring the Board to submit its audit reports to the Diet directly, instead of through the Cabinet.
>> To achieve true decentralization, we should set forth the roles of the central and local governments explicitly, since the expression "the principle of local autonomy" in Article 92 is unclear and has been subject to arbitrary interpretations.
SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents)
>> The postwar system of centralization under bureaucratic control needs to be reformed, as it has led local governments to become dependent on the central government and made it difficult for them to develop an attitude of self-responsibility, and it has also left unclear the extent of their powers in administration, public finances, and personnel matters.
>> Introducing a do-shu system is an inevitable step as part of administrative reforms; we should also consider the powers and the method of election of the chief executive officers of the do-shu. In this connection, we should study whether the present form of the prefectures is satisfactory.
>> Chapter VIII has only four articles, and it leaves many matters to be determined by law. It should therefore be revised to promote decentralization while keeping the possibility of introducing a do-shu system in view.
SHIBAYAMA Masahiko (Liberal Democratic Party)
>> We should state the principle of fiscal balance in the Constitution as a programmatic provision.
>> If budget deliberations are to have real substance, it is important to improve the review of final accounts. Necessary steps which will contribute to this include strengthening the functions of the Board of Audit and the Lower House Committee on Audit and Oversight of Administration, and outsourcing audits and oversight of administration.
>> The principle of single-year budgets has ill effects such as ossification due to rigid adherence to precedent, and the tendency for work to be carried out in a last-minute rush before the end of the fiscal year. We should therefore draw up budgets containing only truly essential items according to a cumulative formula, such as five-year plans.
>> Article 89 is intended to prevent misuse of public funds. It should be revised, however, because in reality there are associations and educational enterprises for which a certain level of public subsidization is necessary.
>> It would be difficult to change to a federal system under present conditions in Japan. A do-shu system could be introduced under the existing Constitution, but it would be better to make explicit constitutional provision.
>> The principle of complementarity should also be stated as part of "the principle of local autonomy" in Article 92.
>> The local allocation tax should be transformed into a system for horizontal fiscal adjustment among local governments.
OIDE Akira (Democratic Party of Japan and Club of Independents)
>> Some people argue that Article 89 is unclear, but it is workable as it stands. The government should support, but not control, private schools, NPOs, and similar bodies.
>> We should establish provisions on the payment of taxes, not as duty provisions but in the more active and democratic form of taxpayers' rights.
>> To give real substance to the control of public finances by the people and the Diet, fiscal information should be provided in a readily understandable form. We should also study streamlining the special accounts and related areas.
>> We should introduce an American-style Congressional Budget Office (CBO) in Japan, and we should strengthen the functions of the Board of Audit along the lines of the General Accounting Office (GAO) in the United States, in order to obtain feedback from the final accounts to the budget.
>> In interpreting "the principle of local autonomy" in Article 92, we should place emphasis on the right of local governments to levy independent taxes.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> In order to improve Japan's centralized system, it is worth incorporating the principle of complementarity.
>> Some speakers have pointed out the risk that introducing a do-shu system will weaken the powers of the national government. At present, however, the national government concerns itself with many things that need not be the concern of the state. Whatever can be done at the local level should be done there, and the national government should concentrate on foreign policy and security.
>> With regard to whether ordinances should contain punitive provisions, we should take steps to guarantee the effectiveness of ordinances while respecting the intent of the principle of nullum crimen sine lege (without law, there is no crime).
AKAMATSU Masao (New Komeito)
>> If we think in terms of prioritizing constitutional revisions based on whether they are essential or whether the same goal can be accomplished by legislation, it is clear that private school subsidies can be dealt with by legislation, and thus revising Article 89 has a low priority.
YASUOKA Okiharu (Liberal Democratic Party)
>> We should discuss the introduction of a do-shu system together with our vision for the governance of the nation. In addition to foreign policy and security, in other areas where there is a need for the national government to take the lead and pursue a strategic approach, such as the economy and education, it should play that role.
>> Under a do-shu system, in addition to coordinating the basic units of local government within a larger area, an important role of the do-shu will be as economic units which compete with one another and thereby maximize national strength.
>> It is important to give a constitutional status to the community as a unit of society under the principle of complementarity, in order to nurture traditions and make our daily lives a source of happiness.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> In achieving decentralization, rather than debating the formal or institutional aspects, it is more important to realize the substantive aspects, that is to say, placing a high value on local history, traditions, and culture, and achieving happiness and "living together." The community will be important in realizing these goals.
>> In order for us to "live together," the right of foreign residents to vote in local elections should be made a reality.
>> We should utilize systems of a direct democracy type, such as freedom of information and residents' referendums, to ensure that issues are discussed fully in the community.
>> We should place importance on resident self-government. Self-government by local entities should have the status of a system to realize resident self-government.
INAMI Tetsuo (Democratic Party of Japan and Club of Independents)
>> The work of local governments has two aspects: executing national laws, and conducting business that affects residents closely. Because they will be called on to perform a great deal more of the latter work in future, we should make clearer provision for "the principle of local autonomy" referred to in Article 92. In clarifying its contents, we should stipulate how powers are to be divided between the national and local governments, and make provision for participation by residents.
>> Each local government should set forth its own stance in ordinances such as a "basic ordinance for self-government," and the Constitution should set the course for their enactment.
>> When the power of local governments to levy independent taxes is recognized, the national government's function of guaranteeing public finances will be reduced, but there will be a need for a fiscal adjustment function. Adjustments should be carried out among local governments themselves, not by the Ministry of Internal Affairs and Communications; something like a "common tax" could be considered. We should also stipulate the right to levy independent taxes in the Constitution.
NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)
>> To achieve decentralization, the do-shu will need to have the power to enact legislation, rather than merely a coordinating role. Specifically, it would be possible to rewrite existing Cabinet orders and ministerial ordinances as ordinances of local governments. The national government should retain judicial power, however, as a federal type of court system would be unsuited to the Japanese national character.
>> The power of local governments to levy independent taxes should be recognized in order to place importance on the basic units of local government and on the community, as required by the principle of complementarity. In granting this power, we should pay attention to both aspects of local autonomy, that is, self-government by local entities and resident self-government.
KATO Katsunobu (Liberal Democratic Party)
>> We should make explicit provision for fiscal balance in the Constitution.
>> While retaining the Cabinet's power to draw up the budget as a basic premise, we should explicitly empower the Diet to make budget revisions.
>> Decentralization should be actively pursued, and we should clarify local governments' powers of taxation. We should also take measures to correct disparities between regions as a responsibility of the national government. In the process, we need to increase transparency and ensure that the national government does not exercise control over local governments.
>> The advocates of a do-shu system envision it in different ways. The role of the basic units of local government needs to be understood in terms of their relationship to the national government. To understand their role, we should think along the lines of maintaining and utilizing the functions of the community and ensuring that basic units of local government operate with a certain amount of freedom.
>> We should revise Article 89 to clear up any doubts about the constitutionality of subsidies for private schools.
SHIBAYAMA Masahiko (Liberal Democratic Party)
>> We should respect Japanese traditions and culture and emphasize the community. This will help to avoid inconsistencies among court judgments on the expenditure of public funds.
>> In introducing a do-shu system, we should set term limits for their chief executive officers, who are likely to have strong powers.
YASUOKA Okiharu (Liberal Democratic Party)
>> We should stipulate in the Constitution that fiscal information shall be disclosed appropriately through public accounting reforms and other measures, thus giving real substance to the control of public finances by the people.
>> Although a balanced budget should not be made into an absolute principle, we should establish programmatic provisions in the Constitution calling for sound public finances at the national and local levels.
NAGAOKA Yoji (Liberal Democratic Party)
>> We should establish provisions in the Constitution calling for sound national and local public finances.
>> We should relax the principle of single-year budgets and, after making public finances more transparent and the government more accountable, we should allow the compilation of budgets with a medium- to long-term time frame, such as five-year plans, and stipulate that they are to be implemented in units of one fiscal year. Continuing expenditures should be provided for in the Constitution.
>> We should clarify what "the principle of local autonomy" in Article 92 consists of. To do this, it will be necessary to make express provision in the Constitution for the principle of complementarity, the right to levy independent taxes, and the principle of sound local public finances.
YOSHII Hidekatsu (Japanese Communist Party)
>> The system of private school subsidies has been found constitutional by the government's interpretation, by scholars, and by the courts, and the claim that it is unconstitutional is incorrect.
(In connection with the comment by Mr. EDANO)
>> It is only proper that Article 89 is interpreted flexibly, since it concerns the expansion of human rights, and that Article 9 is interpreted strictly, since it sets limits on public authority.
(Comment)
>> With regard to reforming local self-government, the origins of current problems do not lie in the Constitution. We should carry out reforms designed to put the Constitution into practice.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
(In connection with the comment by Mr. YOSHII)
>> Article 89 is also a norm that sets limits on public authority, as it limits the expenditure of public funds.
>> The right to receive an education is important, but it would be sufficient to grant subsidies to the pupils who attend private schools and their parents, rather than to the schools themselves. If it is essential to subsidize private schools, it would be better to revise Article 89.
(Comments)
>> We cannot hope to achieve true decentralization unless we reform the present structure in which local governments act as subcontractors for the work of the central government—a situation that dates back to the prewar period—and change the false sense of hierarchy that accompanies it.
>> It is important to decide the proper division of roles between the larger units and the basic units of local government. This should come before any discussion of introducing a do-shu system.
>> If we introduce a do-shu system, we should set forth the do-shu's powers and their role in the Constitution, but in order to allow flexibility it would be preferable not to specify such matters as their size.
>> We should introduce a do-shu system, but without expecting too much of it. No one envisions granting powers to the do-shu in such areas as currency and monetary policy, and thus they will not be able to carry out macroeconomic policies.
DOI Takako (Social Democratic Party)
>> Ordinances are very important. Because they are enacted within the limits of the law, we first must have a correct understanding of the Constitution, which is the superordinate standard of the law.
>> In cases where there is no relevant law or where it is inadequate, the role of the local governments in enacting ordinances is important.
HAYAKAWA Chuko (Liberal Democratic Party)
>> Residents today have less sense of belonging to a particular locality, as the geographical area in which they live their daily lives has expanded with advances in information technology, the transport network, and so on, and thus we can no longer take the existing regional system as a given in the debate. In light of this trend, it seems to me that the common interests of residents will become a determinant of the scale and organization of local governments.
>> It will be necessary to create new regional units, and we should extensively discuss the design of a do-shu system based on a vision for the Japan of the future. However, there is no need to revise the existing provisions on local autonomy for that purpose.
YOSHII Hidekatsu (Japanese Communist Party)
>> The real problem is that the law encroaches on the power to enact ordinances; for example, the Large-Scale Retail Store Law restricts the ability of local governments to enact ordinances to protect local shopping districts. Properly speaking, this problem could be solved if the laws that we enact conformed with the Constitution.
MIHARA Asahiko (Liberal Democratic Party)
>> Achieving fiscal balance is a very urgent issue, and we should make provision for it in the Constitution.
>> We should first carry out decentralization, and the national government should then be required to assist only those local governments that, despite their best efforts, cannot ensure the national minimum standard of living.
YAMANA Yasuhide (New Komeito)
>> We should establish a constitutional provision on fiscal balance at the local level in order to curb the increase of local bond issues and ensure improvement of local taxation and public finances.
DOI Takako (Social Democratic Party)
>> Although a do-shu system or amalgamation would increase local independence from the national government, the resulting larger units are likely to be too remote from residents' lives. The prefectural system has gained acceptance, and it could meet the demand for larger administrative areas through cooperation among a number of prefectures. Hence, we should pursue decentralization while maintaining the present two-tiered structure.
Judiciary, Amendments, Supreme Law, and Related Matters
Main points of initial round of comments by representatives of each party
KONO Taro (Liberal Democratic Party)
>> In the past, Article 9 has been revised by interpretation; we should reconsider this fact and revise the text itself.
>> A law on the procedure for constitutional amendments should be put in place without delay, regardless of whether there is an immediate need to revise the Constitution.
>> I cannot agree to relaxing the requirements for constitutional amendments.
>> National referendums on constitutional amendments should be conducted separately from national elections of a government.
>> If this Commission recommends that constitutional revision is necessary, there will be a need to create an organization to realize this. However, there is no need to establish a standing committee on the Constitution.
>> At present, the Cabinet Legislation Bureau is regarded as if it has the power to interpret the Constitution authoritatively. We must change this situation and create a judicial system that can properly carry out judicial review.
>> We should fully discuss integration of the legal and judicial professions, which was originally anticipated by the Constitution, and, if necessary, we should begin working toward reform.
>> A system of popular review of Supreme Court justices is necessary because the Supreme Court has the ultimate responsibility for judicial review. However, the existing system has become a mere formality, and it must be redesigned to yield a clear vote of confidence or no-confidence.
>> Insofar as the domestic laws required to guarantee treaties cannot violate the Constitution, which is the supreme law of the nation, Japan cannot conclude treaties that violate the Constitution.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> The Supreme Court's stance in reviewing questions of constitutionality is often described as judicial passivism, but this is inevitable at the stage where the Court decides whether to accept a constitutionality case, because we have an incidental system of review. At the next stage, however, when it has accepted a case and must make an active ruling on constitutionality, the problem lies in how the system is operated. To ensure that the rule of law is complete, we should establish a Constitutional Court with a basis in the Constitution.
>> It would also be worth considering, for example, creating a Committee on the Constitution within the Diet to decide constitutional questions, after first making clear where the final power of decision on constitutional matters lies.
>> The Diet should determine the constitutionality of proposed legislation. To that end, it is essential to strengthen the Legislative Bureaus of both Houses.
>> In constitutionality cases involving civil liberties, it is sufficient for the Court to declare the law or measure at issue unconstitutional and void. However, this is not a fundamental solution in cases involving the right of peaceful petition, the right to trial, the right to sue the state for redress, and related beneficiary rights; in such cases, something like a law for constitutional redress is needed.
>> Under the present Constitution, when the Supreme Court finds a law unconstitutional, its decision cannot be said to have the effect of mandating revision or repeal of the law. A constitutional amendment is needed in order to recognize this effect.
>> In considering a law for national referendums on constitutional amendments, we should also think about giving the right to initiate amendments to the people.
OGUCHI Yoshinori (New Komeito)
>> New Komeito believes that the existing Constitution is excellent and that the system of constitutional guarantees should also be maintained essentially as it stands.
>> The important thing is to improve the present state of the Supreme Court, which tends toward judicial passivism. There is no need to establish a Constitutional Court.
>> In regard to appointments of Supreme Court justices, we should establish an advisory council on appointments of Supreme Court justices in order to ensure that the selection process is transparent.
>> The introduction of a quasi-jury system of "lay judges" will increase public interest in the administration of justice and contribute to more active exercise of the power of judicial review and to revitalizing the popular review of Supreme Court justices.
>> In light of the gravity of constitutional revision, the requirement of "a concurring vote of two-thirds or more of all the members of each House" in Article 96 is appropriate.
>> The electoral register should be used as the list of eligible voters in national referendums. Also, the idea of conducting referendums on the same day as national elections should be viewed with caution.
>> The phrase "as an integral part of this Constitution" in Article 96, Paragraph 2 is founded on the amendment method adopted in the U.S. Constitution. Thus, the policy of "adding to the Constitution" advocated by New Komeito is very realistic.
>> The Constitution prevails over treaties, but the spirit of international cooperation declared by the present Constitution should be thoroughly implemented. Further, for the future, it is worth studying the possibility of partially transferring sovereignty to an international body, as the EU member nations have done.
>> From the viewpoint of the rule of law, New Komeito is not in favor of imposing the obligation to respect and uphold the Constitution on the people as well as on public officials.
SHIOKAWA Tetsuya (Japanese Communist Party)
>> As a result of the lessons learned from the wars of aggression and violations of human rights under the Meiji Constitution, the Constitution of Japan introduced judicial review for the purpose of guaranteeing human rights and the Constitution itself. The incidental system of review makes it possible to deliver detailed judgments linked to actual cases.
>> The fact that statutes have been ruled unconstitutional in only a small number of cases should be attributed to the system of judicial bureaucracy, in which the Supreme Court exerts strong control over the lower courts, and to the Cabinet's use of Supreme Court appointments for political ends. Even if a Constitutional Court is established, unless these practices are improved it will merely grant judgments of constitutionality to unconstitutional actions of the government, and its creation will not lead to the elimination of judicial passivism.
>> Article 96 is an expression of both the stability and the capacity for revision of the Constitution. The proposal to delete national referendums from the requirements for constitutional amendments goes beyond the limits of constitutional revision, as it would deprive the people of their right to enact a constitution.
>> It has been claimed that the lack of a law on the procedure for constitutional amendments amounts to "legislative nonfeasance," but this is a term used in state tort liability cases, and the present situation does not fit the criteria.
>> There have been calls for a constitutional amendment to introduce a system of direct democracy, but it should be noted that Article 95 has been disregarded by successive governments. Residents' referendums are an important system that reflects the wishes of residents in local politics, and we should put the necessary legislation in place without delay.
>> In light of the obligation to respect and uphold the Constitution stated in Article 99, it is important that this Commission investigate whether actual practices violate the Constitution.
>> Some people advocate an amendment to impose the obligation to respect and uphold the Constitution on the people as well as on public officials, but since the Constitution is a set of norms designed to limit public authority, their argument stands logic on its head.
DOI Takako (Social Democratic Party)
>> Because it contains Article 96, the Constitution could be said to anticipate revision. But Article 96 is a provision that anticipates progressive and not retrogressive change.
>> Relaxing the amendment requirements set forth in Article 96 is not permissible under the legal principle of constitutional rigidity, and it also violates Articles 98 and 99. Furthermore, deleting national referendums from the procedural requirements for constitutional amendments goes beyond the limits of constitutional revision, since it negates the principle of popular sovereignty, and it cannot be permitted.
Comments after the first round
HAYAKAWA Chuko (Liberal Democratic Party)
>> Basically, I think there is no urgent need to revise the existing provisions of the "Judiciary" chapter.
>> In regard to the prohibition of "extraordinary tribunal" in Article 76, Paragraph 2, we need to consider measures such as establishing specialized courts to meet changing social conditions and other factors.
>> The present system of popular review of Supreme Court justices has become a mere formality and should be improved.
>> In Article 79, Paragraph 6, there is a ban on reduction of the compensation of judges, but their compensation has in fact decreased, and we should review the existing provision.
>> We should consider giving constitutional status to a system for making active use of judges with specialized knowledge who are called in as needed.
>> The relationship between the "lay judge" system and the right to trial stipulated in Article 32 was thoroughly discussed during the debate on judicial reforms, and it does not present a problem.
>> Article 81 stipulates only that the Supreme Court is the court of last resort. Consideration should also be given to proposals such as creating an institution like France's Conseil Constitutionnel in the Diet to review the constitutionality of statutes at the deliberation stage.
FUNADA Hajime (Liberal Democratic Party)
>> The Cabinet Legislation Bureau's opinions on questions of constitutionality should be employed only for purposes of constitutional interpretation within the government, but their influence extends beyond those limits. It is problematic that the Diet, among others, is bound by them.
>> Properly speaking, the Supreme Court should interpret the Constitution, but in view of its enormous caseload and its tendency to avoid constitutionality decisions by applying the theory of acts of state, we should establish either a Constitutional Division of the Supreme Court or a Constitutional Court. The former is preferable, as it is not desirable for constitutionality trials to become detached from specific cases.
>> We should establish a Committee on the Constitution in the Diet primarily to make decisions on the constitutionality of legislation and other aspects of the political process, as is done in many EU nations.
>> National referendums on constitutional amendments should be held separately from national elections to keep a clear focus on the constitutional issues and to ensure that they are not exploited for political advantage. Pre-election campaigning should be freely allowed, and the same register of voters as in national elections should be used.
NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)
>> Instead of continuing to take stopgap measures along the lines of past policies, we should create a Constitutional Court and form the will of the nation based on its judgments of constitutionality.
>> The requirement of a two-thirds majority for a constitutional amendment is appropriate as, in practice, this requires a consensus among factions and thus means that politicization of the debate on constitutional revision is avoided.
>> In national referendums on constitutional amendments, proposed amendments should be put to the vote one by one. Also, we should take steps to ensure that the public can make an accurate judgment.
HANASHI Yasuhiro (Liberal Democratic Party)
>> I believe a Constitutional Court is necessary, especially in light of the present passivity of the judiciary on constitutional questions. If it is to work, however, we will need to: (a) ensure that it operates openly and efficiently; (b) devise a better system for the appointment of judges; (c) establish a body in the Diet to carry out prior review.
>> It has been suggested that once the Self-Defense Forces are given an explicit status in the Constitution, there will be a need to establish military courts, but this is not necessarily so, as the German example shows.
>> If the political parties that are serious contenders for power make it their practice to try to find points of agreement in their detailed visions for the nation, the requirement of a two-thirds majority for constitutional amendments will not be an obstacle to the nation's future survival.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
>> It was not the requirement of a two-thirds majority for amendments that prevented revision of the Constitution to date. Further, since the Constitution lays down rules for the exercise of public authority, it should not be subject to revision whenever there is a change of government. In that sense, it should be a set of rules based on a broad consensus, and the requirement of a two-thirds majority for amendments is appropriate.
>> I think it desirable that those parties that can join us in recognizing the above points should hold serious consultations with us and enact a law on the procedure for constitutional amendments without delay, based on a broad consensus in the Diet. If other parties are willing, we are prepared to hold talks.
>> One problem in the present state of the judiciary is the personnel exchanges among judges and public prosecutors, which mean that judges, who have a completely different tenure system, are reassigned as prosecutors or administrative officials in the Ministry of Justice. I suggest that this is contrary to the intent of judicial independence.
SHIBAYAMA Masahiko (Liberal Democratic Party)
>> The key point in the procedure for constitutional amendments is the national referendum. The strict requirement for initiation of a constitutional amendment in the Diet could improperly restrict the Diet's access to public opinion.
>> It must be admitted that the judiciary is currently passive in deciding constitutional questions, but I am reluctant to establish a Constitutional Court because the present incidental system of review allows the Court to make detailed decisions relating to the guarantee of human rights based on specific cases. Instead, we should create a standing committee on constitutional questions in the Diet.
>> Constitutionality rulings should not be stated in the "obiter dictum" portion appended to court decisions. We should consider allowing appeals for the purpose of contesting an "obiter dictum" portion that contains a decision on constitutionality. Also, we should establish a Constitutional Department of the Supreme Court to enable the Court to decide constitutionality cases in a timely way.
>> Further, the Constitution's ban on the establishment of extraordinary tribunals refers to tribunals in a separate system from the judicial system that culminates in the Supreme Court. It does not prohibit the creation of specialized courts within the same system.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> It is sometimes suggested that if we introduced a system of judicial review by a Constitutional Court, constitutionality decisions might become detached from concrete cases. If the system is well designed, however, it could make it possible to guarantee human rights more effectively, as the example of South Korea shows.
>> I am not against enacting a law for national referendums on constitutional amendments, but these referendums are completely different from national elections. Also, it is the younger generation who will live under the resulting revised Constitution. In light of this point, there is a need for special measures such as, for example, granting the right to vote in national referendums to all who have completed compulsory education.
HAYAKAWA Chuko (Liberal Democratic Party)
>> We need to study the proper form of the quasi-judicial bodies that were not envisaged when the Constitution was enacted.
>> In conducting the debate on constitutional revision, we should establish that the purpose of revision is to determine basic rules for the nation which contribute to the good of the people. For example, the article on the procedure for constitutional amendments could be reconsidered, since there is a risk that opportunities to seek the will of the people will be denied because of the strictness of the present procedure.
>> The obligation to respect and uphold the Constitution should also be addressed to the people.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> The power to enact a constitution rests with the people, but that does not mean that it is completely open to change; there are limits to constitutional revision. The Constitution's rigidity serves to preserve these limits, and that is why rigid constitutions have been maintained in many countries.
>> In the absence of an urgent need to revise the Constitution, I cannot support the calls for haste in enacting a national referendum law.
>> With regard to the question of overcoming judicial passivism, one reason for the judiciary's failure to function properly lies in the system of training for the legal profession, which needs to be reformed.
DOI Takako (Social Democratic Party)
>> Article 81 gives the "power to determine" constitutionality to the Supreme Court alone; thus, in addition to being the court of last resort, the Supreme Court has a role similar to that of a Constitutional Court. In practice, however, it does not work that way; the more important the issue, the more the Court tends to avoid determining constitutionality. This is due to various causes, and I do not think that the problem will be solved simply by establishing a Constitutional Court. If the problem is to be resolved, all public officials must take the meaning of Article 99 seriously.
NODA Takeshi (Liberal Democratic Party)
(In connection with the comments by Mr. EDANO)
>> Mr. EDANO commented that "It was not the requirement of a two-thirds majority for initiating amendments that prevented revision of the Constitution; the Constitution has not been revised because, among other reasons, it was accepted by the people." In response, I would like to say that we must recognize that our predecessors in the Diet certainly were not remiss in working for revision, but their efforts were unavailing under the political conditions at the time.
>> The requirement of a two-thirds majority of all the members of each House to initiate a constitutional amendment could be relaxed, because ultimately the amendment is put to a national referendum.
SHIBAYAMA Masahiko (Liberal Democratic Party)
>> If we are to carry out reforms to make the administration of justice function within the existing judicial system, the bureaucratic nature of the judiciary must be corrected, and to that end it is necessary to reform the system of legal training.
>> Since popular review of Supreme Court justices is said to have become a mere formality, a body could be established in the House of Councillors to review candidates' suitability for appointment to the Court.
>> The prohibition on reducing the compensation of judges is often cited as a prime example of the gap between the Constitution and reality. The Constitution should be revised without delay in order to eliminate such gaps.
YASUOKA Okiharu (Liberal Democratic Party)
>> There are limits to the courts' ability to carry out active judicial review under the existing system of career judges. We should consider creating a Constitutional Court whose composition would be decided on the basis of recommendations from the Cabinet, the Diet, and the courts.
>> To create relationships of healthy tension among the executive, legislative, and judicial branches, we need a Constitutional Court that is able to carry out judicial review even when political issues are involved.
>> The requirements for initiation of constitutional amendments by the Diet should be relaxed, because (a) the Diet will need to make appropriate decisions in response to rulings of unconstitutionality, which will likely increase when a Constitutional Court is introduced; (b) the emphasis ought to be on the will of the people, as the power to enact a constitution belongs to them.
KANO Michihiko (Democratic Party of Japan and Club of Independents)
>> We should introduce a Constitutional Court so that Japan can follow the path of a judicial nation and build a relationship of trust with the people. In introducing the Court, careful study should be given to: (a) the method of selection of judges; (b) who will have standing to bring cases before it.
>> We might consider introducing a general system of national referendums (a) as a way to reflect the many facets of public opinion, given that the values of the people are diversifying, and (b) as a way for the public to develop the ability to make decisions on their own responsibility. If such a system is introduced, however, it will be necessary to set limits on the measures that can be submitted to national referendums, so that they do not conflict with representative democracy.
HANASHI Yasuhiro (Liberal Democratic Party)
>> I commented earlier that the existing requirement for initiation of a constitutional amendment by the Diet will not be an obstacle to constitutional revision because I expect that parties that are serious contenders for power will take part in talks on concrete constitutional amendments, and if an actual amendment results, the process will give rise to rules for such discussions.
>> As we have a bicameral system, however, we might consider setting different requirements for initiating an amendment in each House.
>> It would also be possible for each party to present a draft constitution before a general election, so that the election results would give a clear idea of the will of the people, and the parties could then draw on this in holding talks on constitutional revision after the election.
NAGAOKA Yoji (Liberal Democratic Party)
>> We should introduce a Constitutional Court for the following reasons: (a) under the incidental system of review, the constitutionality of statutes is clarified only when they are challenged in the courts; (b) there is insufficient normative control by the Constitution when judicial review is implemented by the Supreme Court in the present way, which is considered judicial passivism.
>> We should abolish the present system of popular review of Supreme Court justices as it has become a mere formality. However, when Constitutional Court judges are appointed for a second term, the Diet's approval should be required again.
>> If we recognize broad standing to sue before the Constitutional Court, there is a risk that the Court will be unable to give sufficient attention to those cases in which a constitutionality decision is truly necessary. Accordingly, instead of recognizing citizen standing to sue, we should, for example, require cases to be brought by at least one-third of the Members of the Diet.
>> If it is too difficult to introduce a Constitutional Court, we should also consider, as the next best option, establishing a Constitutional Division of the Supreme Court.
YASUOKA Okiharu (Liberal Democratic Party)
>> In revising the Constitution, we need to adopt the stance of evolving and developing the universal principles of the present Constitution.
>> We should enshrine popular participation in the administration of justice in the Constitution in order to promote "judicial democratization," in which judges inform members of the public on how justice is administered, and, in turn, the common sense or good sense of the people is conveyed to the judiciary.
KANO Michihiko (Democratic Party of Japan and Club of Independents)
>> It used to be that ministers of state were forced to resign for making comments that touched on constitutional revision, but we should distinguish between being under an obligation to respect and uphold the Constitution, as stated in Article 99, and discussing constitutional revision.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
(In connection with the comments by Mr. NODA)
>> I think it is true that, in the past, politicians could not take decisive steps toward revising the Constitution because they had to take into account the social and political conditions, which were such that the public did not want revision.
(In connection with the comments by Mr. HANASHI)
>> To achieve a two-thirds majority in both Houses, it will, in practice, be necessary for the ruling and opposition parties to reach consensus. However, if they incorporate proposals for constitutional amendments into their election platforms, they will be bound by those declarations until the next election, making it difficult to reach a consensus. It seems to me that it is not desirable to make constitutional questions an issue on which general elections are fought as part of party platforms.
>> However, it would be beneficial to make constitutional questions an election issue, provided that Members who oppose a particular amendment but agree to putting it to a national referendum can be counted among the concurring votes for its initiation.
>> There is room to reconsider the requirement of a two-thirds majority in the Upper as well as the Lower House, which is unduly strict.
HANASHI Yasuhiro (Liberal Democratic Party)
(In connection with the comments by Mr. EDANO)
>> My point was not that constitutional questions should be made an issue in general elections, but that there is a need for the parties contending for power to present their proposals for constitutional amendments before an election, while at the same time trying to reach consensus.
EDANO Yukio (Democratic Party of Japan and Club of Independents)
(In connection with the comments by Mr. HANASHI)
>> If the idea is that different political parties should indicate, at election time, that there is a possibility of their achieving consensus on constitutional amendments, I would say that is constructive.
DOI Takako (Social Democratic Party)
>> We are witnessing a discussion of how to make a constitutional amendment between Commission members from the two major parties, but the purpose of this Commission is strictly to conduct broad and comprehensive research on the Constitution of Japan. Surely the present discussion is a departure from those aims?
NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)
>> In a general election, parties could make statements about any consensus they have reached on constitutional revision, but I suggest that if they go farther and discuss specific articles, the end result would be to tie them down on both sides.