Third Meeting

Thursday, March 9, 2006

Meeting Agenda

Matters relating to a national referendum system for constitutional amendment and the Constitution of Japan

After keynote statements were heard from Special Committee members Mr. YASUOKA Okiharu and Mr. EDANO Yukio, other members put questions to them and made comments.

Keynote speakers:

Members who put questions or made comments:

Main points of keynote statement by Mr. YASUOKA

1. Introduction

>> The "ruling parties' proposal" is the result of earnest consultation by the Liberal Democratic Party and New Komeito and provides an invaluable reference. However, we are not going to insist on it, and we welcome constructive debate.

2. Scope of national referendums

>> Given that "national referendums represent a 'powerful medicine' in a parliamentary democracy," and given that Japan has never experienced a national referendum, I believe the question of general or advisory referendums should be postponed until the future. For now, we should focus our attention exclusively on a national referendum for constitutional amendment.

3. Eligible voters in national referendums

>> For now, eligibility should mirror voter eligibility under the Public Offices Election Law. However, we should immediately start examining the option of lowering the minimum voting age.

4. Voting date in national referendums

>> The Diet and individual political parties should play a positive role in publicizing and informing the public of the contents of constitutional amendment. Therefore, it is appropriate for the Diet to determine the voting date. This idea is reflected in the "ruling parties proposal" that says that the Speaker of the House of Representatives and the President of the House of Councillors should each announce the contents of the proposed constitutional amendment.

5. Structure of ballot (voting separately on individual questions or on a unified package)

>> If a proposed constitutional amendment comprises two or more issues, as a rule, each issue should be voted on separately.

>> Issues that pertain to related policies will have to be brought together under a single question. Whether or not issues are related will have to be determined by the Diet, which is empowered to initiate amendments. If a matter can be divided into a number of separate issues, the Diet should design the proposal to reflect this. The Diet will have to try to structure the ballot in national referendums to match the dimensions of the proposal.

>> These basic rules should be written into a national referendum law.

6. Publicizing the proposed constitutional amendment

>> It is important to publish a "National Referendum Official Gazette," a pamphlet that would include the proposed constitutional amendment and also provide an easy-to-understand summarization and intent of the amendment.

>> The proposal of the Democratic Party of Japan calls for the establishment of a "National Referendum Committee" in the Diet, which would be in charge of preparing a summarization of the amendment and other explanatory materials. This proposal is worth considering.

7. Restrictions on campaigning

>> To ensure fairness in national referendums, any restrictions on campaign activities should be kept to a minimum. Basically, freedom in campaigning should be preserved.

>> Officers in charge of administering a national referendum and others who have the responsibility to ensure fairness, civil servants and educators should not be allowed to take advantage of their positions and participate in campaigning activities.

>> We should consider restrictions on campaigning by foreign nationals only for organized campaigning that is deemed harmful.

>> Restrictions related to the media should be limited to the following: (a) ban on false reporting; and, (b) ban on unlawful use of the media.

>> Since last year's overseas research mission, I have come to believe in the importance of the following. "False and misleading reporting" should be countered by "truthful reporting," and the people should be provided with a certain period of publicity and information to arrive at their own judgment.

>> Unlike campaigning in elections, each individual member of the public can become a "campaigner" in a national referendum. With this supposition in mind, we should consider the following. Measures should be taken to guarantee maximum expression of political views by the people. The scope of what we define to constitute "vote buying" should be clearly established.

8. Conclusion

>> It is extremely meaningful that this Special Committee has risen above the barriers that separate the ruling and opposition parties to embark upon earnest consultation of national referendum rules. It is my hope that we will be able to submit to the present session of the Diet and enact a bill for a national referendum for constitutional amendment that is firmly rooted in a broadly based consensus spanning various political parties.


Main points of keynote statement by Mr. EDANO

1. Need to develop national referendum system for constitutional amendment

>>We should not be over-hasty, but it is desirable that the system be established speedily.

>> It is important to aim for a broadly based consensus with the following points in mind: (a) the system is not being developed as a preparatory step for constitutional amendment; and, (b) one of the reasons that the system is being developed is to provide the people with an opportunity to reject a proposed constitutional amendment.

>> Discussions of a national referendum system for constitutional amendment are inseparable from discussions concerning revision of the Diet Law, which must include provisions concerning Diet procedures for the initiation of constitutional amendments.

2. Details of national referendum system for constitutional amendment

[1] Scope of national referendum system

>> I feel there is a growing need to submit policy matters other than constitutional amendment to national referendums to allow the people to express their will directly. A system for general and advisory national referendums should be developed together with a national referendum system for constitutional amendment.

[2] Scope of eligibility

>> Minimum voting age should be 18. One idea would be to establish a cutoff based on "school age."

>> The age of majority should be lowered to 18 throughout the entire legal system. While a transitional period may be necessary, a date should be set for implementing the lowering of the age.

[3] Registry of voters

>> Regarding the registry of voters, a three-month residency requirement is problematic. Moreover, because there is no reason to exclude persons whose civil rights have been suspended, a registry of voters separate from the registry used in public elections should be produced.

[4] Restrictions on campaigning

>> Regarding restrictions on campaigning, because it is impossible to clearly differentiate between the expression of political views and campaigning, we should come to the common understanding that it is in principle impossible to restrict campaign activities. Having done that, we must then put our heads together to figure out how to stipulate certain restrictions that are essential and unavoidable.

>> It is possible that bribery charges may be even applied to discussions of the Constitution that take place in a bar. The matter of bribery and vote buying will have to be further discussed because it carries the risk of undermining the freedom of expression.

>> Regarding restrictions on the media, the following matters must be taken into consideration. Regarding newspapers, restrictions would also apply to the organs of political parties. Regarding the broadcast media, the Broadcast Law already contains provisions for the issuance of instructions and warnings concerning false reporting.

[5] Publicizing proposed constitutional amendments

>> The Diet should be made responsible for publicizing and informing the people concerning proposed constitutional amendments. An agency should be established for this purpose in the Diet. To ensure fairness, one-third or more of the members of this agency should be appointed from groups that opposed the initiation of the amendment. Also to ensure fairness, pamphlets and other materials should be produced that give the same amount of space to both pro and con views.

>> Decisions on the use of public funds and subsidies in activities for informing the public should be based on an analysis of the effectiveness of the Diet's publicity activities.


Main points of questions and comments

FUNADA Hajime (Liberal Democratic Party)

(Comment)

>> For 60 years, the Diet has failed to enact a national referendum law for constitutional amendment. This constitutes legislative nonfeasance. It is the responsibility of the Diet to provide the people with opportunities to express their will. The national referendum bill is closely linked to the issue of constitutional revision. Therefore, it is desirable that this bill be approved by more than a two-thirds majority in both Houses of the Diet.

>> For the following reasons, a general national referendum system requires further discussion: (a) this issue goes beyond the terms of reference and authority of this Special Committee; and, (b) a general national referendum, even though designed as advisory, may violate the Constitution in that it restricts the Diet's legislative right.

>> The minimum voting age should be 18. However, this matter is linked to the lowering of the age of majority and the amendment of the Civil Code and 25 laws including the Civil Code. Hence, it will be difficult to act on this immediately. The minimum voting age should be set at 20 in the body of the law, with supplementary provisions explicitly stipulating that the voting age will be lowered to 18 when the minimum voting age is lowered to 18 in the Public Offices Election Law.

>> Among the designated classes of civil servants stipulated under the Public Offices Election Law, there is no reason to restrict the participation of tax officers and others in campaign activities.

>> Regarding restrictions on campaign activities involving abuse of position by civil servants in general, this matter is covered by existing laws concerning civil servants, and there is no need to consider the introduction of new restrictions.

>> In principle, foreign nationals will be free to campaign. However, restrictions should apply to organized campaigns aimed at influencing the outcome of voting for a particular purpose. These restrictions should not extend to general activities undertaken by foreign embassies and consulates in Japan. Due consideration must be given to this matter.

>> Regarding restrictions on the media, the proposal of the ruling parties calls for the application of the same provisions as the Public Offices Election Law. However, the existing provisions should be eased for national referendums. While the media should basically be allowed to exercise its own discretion, an agency should be established to at least ensure fairness in reporting.

>> In light of the immense influence of broadcasting, we should consider prohibiting spot television commercials for a period of one or two weeks prior to voting.

>> We should avoid instituting penalties as far as possible. But the following will be necessary: (a) penalties concerning voting procedures; and, (b) penalties for acts of obstruction of freedom of voting. When penalties are being instituted, due consideration must be given to protect campaign activities by adopting an interpretive provision to the effect that "no restrictions shall be placed on the freedom of expression, academic freedom, and the freedom of political activity."

>> Regarding lawsuits for nullification of referendum results, it is desirable to adopt rules concerning issuance of temporary injunctions for suspension of coming into force under certain conditions by the Tokyo High Court. However, acceptable reasons for nullification should be limited to the following: (a) obstruction of freedom of voting; (b) errors in counting of ballots; and, (c) errors made by the election management boards.

>> Provisions of the Diet Law that relate to the contents of the national referendum should, as far as possible, be absorbed into the national referendum law. Matters pertaining to the houses of the Diet should certainly be dealt with directly through revision of the Diet Law.

>> The Democratic Party of Japan has proposed a "people's petition" system. From the perspective of parliamentary democracy, it will be extremely difficult to design such a system. Therefore, discussion of this issue should be postponed for the future.

>> Should voting be on individual questions or on a unified package of issues? The Diet Law should include an instructive provision to the effect that "voting shall, as a rule, be on individual questions." However, issues that are mutually related could be bundled into a single package for voting. In this regard, intentional or discretionary bundling cannot be allowed. For instance, revision of Article 9 and the establishment of new environmental rights cannot be put into a single package.


SONODA Yasuhiro (Democratic Party of Japan and Club of Independents)

(Comment)

>> It is important to develop a sense of popular participation in national referendums for constitutional amendment. This will require extensive publicity. I suggest a series of open hearings to be held throughout Japan.

(To Mr. YASUOKA)

>> From the perspective of the people's participation in politics, I believe it is extremely important to adopt a general system for national referendums. In light of the research conducted last year by the House of Representatives Delegation for Research on National Referendum Systems in European Countries, what are your views on the introduction of a general system for national referendums?

>YASUOKA Okiharu (Liberal Democratic Party) (replying to Mr. SONODA)

>> In Austria, we were told that a national referendum could at times be used as a vote of confidence or non-confidence against the government. In Spain, we were told that the national referendum system was a secondary system for supplementing parliamentary democracy. Before proceeding, I believe we need to very carefully consider general systems for national referendums.

(Mr. SONODA continues)

>> A general national referendum system provides the ultimate opportunity for receiving the views of the people. Therefore, it is desirable to institute such a system at the same time as the enactment of a national referendum system for constitutional amendment.

(To Mr. YASUOKA)

>> As many people as possible should participate in national referendums. The age of majority should be lowered to 18 to allow participation of this age group. Furthermore, persons whose civil rights have been suspended under the Public Offices Election Law and persons in prison should also be given the right to vote. On this point, the proposal of the Democratic Party of Japan states that the minimum voting age should be 18, and that persons under this age should also be given the right to vote when a proposed constitutional amendment directly affects them. What are your views on this matter?

> YASUOKA Okiharu (Liberal Democratic Party)

>> The voting age for constitutional amendments should be the same as the age of majority: this is the prevailing international standard. This matter should be comprehensively considered in the process of reviewing the lowering of the voting age and the age of majority to 18. It is desirable to come to a conclusion on this matter at an early date.


ISHII Keiichi (New Komeito)

(Comment)

>> We would like to see progress in the discussions along the lines of the proposal of the ruling parties. However, we are not going to insist on the adoption of our proposals, and look forward to taking in various views to develop a broadly based consensus.

(To Mr. YASUOKA and Mr. EDANO)

>> Regarding the minimum voting age and the registry of voters, I believe the minimum voting age should be lowered to 18 in the following process. First, the registry of voters that is produced under the Public Offices Election Law should be used as the registry of voters in national referendums. Second, the Public Offices Election Law should be revised to lower the voting age to 18. What are your views on this matter?

> YASUOKA Okiharu (Liberal Democratic Party)

>> As the Constitution states that, "universal adult suffrage is guaranteed with regard to the election of public officials," I believe the same principle of "adult suffrage" should apply to national referendums. On the other hand, there is a view that the voting age is being lowered to 18 as an international standard. We should arrive at a conclusion on this question in the course of comprehensive examination that looks at this matter from various perspectives.

> EDANO Yukio (Democratic Party of Japan and Club of Independents)

>> As I mentioned earlier, the issue of residency requirement comes up in the registry of voters. For this reason, I believe the registry for national referendums should be produced separately from the registry of voters used in public elections. We agree with New Komeito on lowering the voting age to 18 for both national referendums and public elections. However, we should not wait for the administration to revise the Public Offices Election Law. If the Diet takes the lead in lowering the voting age to 18 in the national referendum law, the voting age under the Public Offices Election Law will probably follow suit.

(To Mr. YASUOKA and Mr. EDANO)

>>Regarding restrictions on campaigning in national referendums, I think campaigning should in principle not be subject to restrictions, but minimum necessary regulations should be made to ensure fairness. Regarding false reporting and unlawful use of the media, do you think it would be sufficient to leave these to self-regulation and impose only the minimum necessary restrictions?

>YASUOKA Okiharu (Liberal Democratic Party)

>>In a national referendum on constitutional amendment, I think false reporting would be weeded out through the exercise of freedom of speech, so there would in principle be no need for restrictions.

> EDANO Yukio (Democratic Party of Japan and Club of Independents)

>>I agree, though we should consider whether it might be necessary to impose certain restrictions on spot commercials by the broadcast media.

(Further question of Mr. ISHII to Mr. YASUOKA and Mr. EDANO)

>> Regarding the method of balloting, the people should be asked to vote separately on a bundle of related issues, and the ballot should be appropriately designed for this purpose. What are your views on this matter?

> YASUOKA Okiharu (Liberal Democratic Party)

>> As the initiator of amendments, it will be up to the Diet to determine from a policy perspective what constitutes a bundle of related issues and what does not. In any case, a national referendum law should contain provisions concerning basic rules, such as "unrelated issues must be voted on separately."

> EDANO Yukio (Democratic Party of Japan and Club of Independents)

>> "Voting, as far as possible, on individual issues" should not be the goal to which we aspire. The compulsory goal to which we aspire should be "voting must be, as far as possible, on individual issues."

>> We should not try to fit all the questions on a single ballot form. Instead, each question should have its own separate ballot form so that voters will cast as many votes as there are questions.


KASAI Akira (Japanese Communist Party)

(Comment)

>> Our subject today is "Matters relating to a national referendum system for constitutional amendment and the Constitution of Japan," and I wish to clearly state for the record that we did not commence deliberating today on the establishment of rules concerning national referendums.

>> The Japanese Communist Party opposes the enactment of a national referendum law for the purpose of preparing the grounds for the revision of Article 9.

(To Mr. YASUOKA)

>> Last November, the Liberal Democratic Party published its "Draft Proposal for a New Constitution." Judging from the title, it seems the Liberal Democratic Party is pursuing the enactment of a new constitution, and not constitutional amendment.

> YASUOKA Okiharu (Liberal Democratic Party)

>> Our "Draft Proposal for a New Constitution" retains what is good in the present Constitution and adds to it what is suited to the age that we are living in. In the terminology of the Constitution, our objective is "amendments to the Constitution."

(To Mr. YASUOKA)

>> Revision of Article 9 implies the alteration of a basic principle of the Constitution of Japan. This clearly exceeds the limits of "amendments to this Constitution" as envisioned under Article 96, and is tantamount to "enactment of a new constitution." Normally, "enactment of a new constitution" occurs after a coup d'état or some related event in which the political system of a nation undergoes fundamental change. Is there anything to Japan today that indicates that such a fundamental change has occurred?

> YASUOKA Okiharu (Liberal Democratic Party)

>> Perhaps this kind of argument can be made in the realm of politics. But in the realm of jurisprudence, what we have proposed is nothing other than "amendments to the Constitution" as provided for under Article 96.

(To Mr. EDANO)

>> Judging from its contents, the "Constitutional Proposal" published by the Democratic Party of Japan appears to accept total revision of the Constitution as a given. However, Mr. EDANO has repeatedly stated that he is not pursuing total revision. This statement seems to contradict the contents of his party's "Constitutional Proposal."

> EDANO Yukio (Democratic Party of Japan and Club of Independents)

>> Our "Constitutional Proposal" states the following. It is necessary to make various changes not only in the formal Constitution (constitutional code) but also in the real Constitution (the Constitution as a law establishing the basis for national government). What I have repeatedly said is that there is no need to totally revise the formal Constitution. Thus, there is no contradiction here.


TSUJIMOTO Kiyomi (Social Democratic Party)

(Comment)

>> The report of the delegation for research on national referendum systems in European countries states that the following matters are important when implementing a national referendum: (a) attainment of a parliamentary consensus; and, (b) strong public backing and support. How does Japan measure up to these requirements? First, there is no consensus among all political parties. Second, there is a major gap between Diet discussions and what the public is thinking. In other words, in Japan today, neither of the two conditions has been satisfied.

>> The Social Democratic Party is present in this Special Committee for the purpose of expressing its views on what discussions need to be undertaken with regard to a national referendum system for constitutional amendment. The Social Democratic Party is not seated here for the purpose of commencing discussions between ruling and opposition parties.

(To Mr. YASUOKA)

>> A survey conducted by a citizens' group indicates that the public has a very limited understanding of the national referendum system. In other words, there is a marked discrepancy between the Diet and the awareness of the people. What are your views on this matter?

> YASUOKA Okiharu (Liberal Democratic Party)

>> I empathize with the view that constitutional amendment and enactment of a constitutional amendment procedure law need the backing of the people. However, it is exactly because the people are not properly informed of the national referendum system that the political parties must engage in earnest discussions aimed at creating an environment in which the people can debate the pros and cons of constitutional amendment in the Diet.

(Further questions by Ms. TSUJIMOTO to Mr. YASUOKA)

>> If direct democracy involves certain dangers, why start with a national referendum on constitutional amendment? As a preliminary step, should not general referendums be conducted on a number of political issues? Similarly, should not due experience first be gained from elections in which 18 and 19 year olds are allowed to vote?

>> As seen in the case of Iwakuni, the government and the Liberal Democratic Party have adopted some very negative attitudes toward local referendums and plebiscites. On the other hand, they are extremely enthusiastic about a national referendum for constitutional amendment. There seems to be a contradiction here. What are your views on this matter?

> YASUOKA Okiharu (Liberal Democratic Party)

>> The national referendum system for constitutional amendment provided for in Article 96 creates a constitutional obligation to enact related laws. This is a responsibility that the Diet must fulfill. On the other hand, because the Japanese system is based on the principle of indirect democracy, enactment of laws for general national referendums requires due coordination with the provisions of the Constitution. Certainly, a system for general national referendums is a very important matter that must be examined, but I do not believe that such a system should be enacted in advance of a national referendum system for constitutional amendment.

>> There is considerable debate on whether matters of national security and other national policies should be submitted to local referendums. This matter was previously discussed in the Research Commission on the Constitution and should be further discussed in the future.


TAKI Makoto (People's New Party)

(Comment)

>> Detailed research, including overseas research, has already been conducted on a national referendum system for constitutional amendment. It is about time that we start working out the detailed design of the system. In this designing process, the deliberations of the Diet should be presented to the public and opportunities should be created for public participation in the discussions.

(To Mr. YASUOKA)

>> Regarding campaign activities in national referendums, I believe it will be difficult to adopt the same prohibitions contained in the Public Offices Election Law concerning campaigning by civil servants using their official positions.

>> Regarding restrictions on the media, I believe we should establish a system for ensuring fairness as is done in France through recommendations issued by the Superior Council on the Audio-Visual Industry.

>> Regarding a system for general national referendums, there are some differences between the views expressed by Messrs. YASUOKA and FUNADA and Mr. EDANO. Instead of unilaterally accepting the proposal of the ruling parties as the basis for our discussions, we need to give some more thought to and discuss the question of why it is difficult to introduce a system for general national referendums.

> YASUOKA Okiharu (Liberal Democratic Party)

>> Even if civil servants are to be prohibited from using their official positions in campaigning, the freedom to express one's views must be preserved.

>> Regarding restrictions on campaigning in national referendums, in the case of France, restrictions apply to certain recognized organizations engaged in campaigning activities. On the other hand, the average individual is free of any restriction. Regarding the broadcast media, which have more influence, certain restrictions apply during a designated period of time. These arrangements are highly instructive.

>> Regarding general national referendums, the Dutch experience from last year should be noted. The Treaty Establishing a Constitution for Europe was supported by both the Dutch government and the parliament, but was rejected by an overwhelming margin when submitted to a national referendum. Here is an example of how a major gap may emerge between the parliament and the people. The Dutch example leads us to conclude that any system for general national referendums must be very carefully and extensively examined from the perspective of harmonization with the rules of indirect democracy.