Fifth Meeting

Thursday, March 23, 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 Ms. TSUJIMOTO Kiyomi and Mr. TAKI Makoto, members put questions to them and made comments.

Keynote speakers:

Members who put questions and made comments:

Main points of keynote statement by Ms. TSUJIMOTO

1. Introduction

>> The Social Democratic Party believes it is unnecessary to revise the Constitution and therefore it opposed the creation of this Committee in the first place. Much less do we believe that there is a demand to enact a national referendum system for immediately revising the Constitution.

>> An NHK opinion poll shows the public has a very limited awareness of the national referendum for constitutional amendment. This Committee should be more sensitive to the gap that exists between the Diet and public opinion. This Committee should conduct its own opinion poll to determine what the true situation is.

>> If you want to create a national referendum system pertaining to the Constitution, which is the supreme law of the land, it certainly will not suffice to focus our discussions exclusively on technical matters. The process of deliberation should be shared with the people. This Committee should refrain from speeding toward enactment in the absence of the people with whom sovereignty resides.

2. Importance of developing common understanding in discussions on the Constitution and a national referendum system

>> Before discussing the technical issues of a national referendum system, we must establish a common understanding on the following matters: [1] what is the Constitution; [2] the characteristics of the Constitution as a rigid constitution; and, [3] the limits of constitutional amendment.

[1] What is the Constitution?

>> Enactment of a national referendum system and discussions of what the Constitution is are not unrelated. The Constitution of Japan is founded on the principles of modern constitutionalism. Therefore, no amendment that contradicts the Constitution as a restrictive norm can be permitted, and national referendums would be endowed with a positive significance of allowing those with whom sovereignty resides to determine the direction of the nation. From this, I derive the following conclusions: the range of eligible voters in national referendums should be broad; no restrictions should be placed on campaigning; and, enactment of such a system requires a broadly based national debate.

[2] Characteristics of the Constitution as a rigid constitution

>> The Constitution of Japan is a rigid constitution. This does not only imply that initiation of an amendment requires a super-majority. Special attention must be paid to the implication that rigidity is intended to prevent the majority from imposing its will upon the minority.

[3] Limits of constitutional amendment

>> Article 96, Paragraph 2 states that ratified amendments comprise "an integral part of this Constitution." This is proof that the present Constitution does not make allowances for a total revision of the Constitution. Any changes in the fundamental principles of the Constitution would overstep the allowable limits of amendment. The concept of limits of constitutional amendment is not unique to Japan and is shared by all countries that have experienced the tyranny of the military in their past history.

3. Why rush to enact a national referendum system?

>> It is said that the Liberal Democratic Party and New Komeito may go ahead on their own to submit a bill for a national referendum law to the present session of the Diet. What is behind this rush to enactment? I see that their true intent is to amend the Constitution along the lines indicated in the draft constitutions released by their parties.

>> Those who are rushing the establishment of a national referendum system are the very same people who intend to revise the Constitution in a manner that clearly violates the acceptable limits of amendment. This is where the great misfortune lies in the state of the Constitution today. We are in no situation now to discuss the technical issues of a national referendum system.

(Comment by Chairman NAKAYAMA)

>> I would like to remind Ms. TSUJIMOTO of the following. The final report of the Research Commission on the Constitution, in which all parties participated, states that there were many expressions of the view that a national referendum system for constitutional amendment should be enacted as soon as possible.

Main points of keynote statement by Mr. TAKI

1. Need for a national referendum system

>> Discussions on a national referendum system will deepen the people's awareness of the Constitution.

>> The view has been expressed that we should not allow the Liberal Democratic Party's draft constitution to drag us into discussions on a national referendum system. But if the proposed draft is not good, its faults should be publicized. Discussions on a national referendum system provide the best opportunity for revealing such faults.

>> The view has been expressed that the people do not wish to revise the constitution and a national referendum system is not necessary. On the contrary, a national referendum system should be established to give the people a chance to pass judgment.

2. Scope of national referendum

>> The following two-staged approach may be viable: (a) In stage one, the people vote on whether they approve or disapprove of revising the Constitution in the first place, and if they approve, then what parts of the Constitution should be considered for amendment. (b) In stage two, specific amendments are acted on in the Diet based on the results of stage one.

>> Article 9 is not the only issue in constitutional amendment. For instance, adoption of the do-shu system currently being discussed should be deliberated upon as an issue for constitutional amendment. From such a perspective also, it is necessary to have a national referendum system ready and in place.

>> It is worth considering extending the scope of national referendums beyond constitutional issues to also include other important questions, as stated in the Democratic Party of Japan proposal.

3. Comments on issues posed by Chairman NAKAYAMA (October 6, 2005)

>> The scope of eligible voters should be as follows: (a) basically, eligibility should accord with the age of majority, and therefore the minimum voting age should be 20; and, (b) as per the provisions of the Public Offices Election Law, persons whose civil rights have been suspended should not have the right to vote in national referendums.

>> Regarding the design of the ballot, basically voting should be done separately on each individual question. Any specific problems that arise should be considered on a case-by-case basis.

>> Regarding the publicity period after an amendment has been initiated, I agree with the proposal of the New Komeito for a publicity period of 60 to 180 days. A committee on national referendum should be established in the Diet with responsibility over all publicity and public education on proposed constitutional amendments.

>> In principle, campaigning activities in national referendums should be free, and any restrictions should be limited to minimum necessary levels. Violations should not be immediately penalized. Instead, a subcommittee for national referendum supervision should be created under the committee on national referendum to issue effective warnings and admonishments in case of violation.

>> The committee on national referendum should be empowered to decide on how the ballot should be worded.

>> "Majority" in national referendums should mean the majority of valid ballots cast. Since the enactment of the Constitution, "majority" has always been defined as the majority of valid votes.

>> National referendums and national elections should not be held simultaneously. However, a national referendum may unavoidably have to be held simultaneously with some local elections. This point should be considered.

4. Restrictions on mass media

>> In principle, media reporting should be unrestricted. However, it will be difficult for newspapers, television and other media to maintain neutrality. The following rules should be implemented. (a) In their reporting, newspapers and other print media should clearly state whether they are in favor or opposed to an amendment. (b) Regarding television and other broadcasting media, the European model should be followed for creating a monitoring committee empowered to issue warnings for rectification of excessively biased reporting.

5. Issues to be considered pertaining to voting on individual questions

>> New Komeito has proposed that voting should be on individual questions and that different ballots and ballot boxes should be prepared for each question. This proposal is well worth considering. However, some further thought is necessary to avoid the voting becoming too complicated.

Main points of questions and comments

TAKAICHI Sanae (Liberal Democratic Party)

(To Ms. TSUJIMOTO)
>> I understand that the Social Democratic Party takes the position of preserving the Constitution and believes it is important to close the gap with reality by protecting the Constitution. However, Article 96 acknowledges the possibility of amendment. Would it not be more effective to protect the Constitution by enacting a national referendum law?

>> The Social Democratic Party has enthusiastically campaigned for children's rights and enfranchisement of foreign nationals. Should we not amend the Constitution at an early date to include specific provisions for the effective protection of various human rights? What is your view on this matter?

>> An informant appearing here proposed that eligibility in voting in national referendums could be extended to persons who have completed compulsory education. At that time, Ms. TSUJIMOTO commented that this proposal was worth considering. The Constitution is the supreme law of the land, and a much higher level of judgment is demanded of voters than in national elections that are held at intervals of several years. I find no reason to adopt a minimum age for making decisions on the supreme law of the land that is lower than the age of competence under private law or the minimum voting age stipulated under the Public Offices Election Law. What is your view on this matter?

> TSUJIMOTO Kiyomi (Social Democratic Party)

>> The Constitution has not been amended in 60 years. The historical background to this is that Japan maintained an extremely cautious stance on the subject of amendment in order to preserve its position in the world and in Asia. Moreover, this choice is very meaningful. Considering the domestic and international impact of the enactment of a national referendum law, there is no need to speedily enact such a law. Rather, we should further our discussions on why such a law has not been enacted in 60 years.

>> Environmental rights, the right to know and other new human rights do not have to be written into the Constitution. They can be protected by laws. It is necessary to engage in related discussions in the process of developing specific policies for each of these new rights.

>> I appreciate the position of Ms. TAKAICHI. On the other hand, it is important to allow the younger generations, on whom the future of the country depends, to participate in national referendums. This requires deliberation including consideration of the implication of "sovereignty." To reduce the administrative burden, some have argued the minimum voting age should be 20. This is an argument based on technical considerations, and I cannot support it.


FURUKAWA Motohisa (Democratic Party of Japan and Club of Independents)

(Comment)

>> Constitutional amendment and the national referendum law should be discussed separately. Haste should be avoided, and the Committee should conduct its discussions in an open forum so as to deepen public awareness. The aim should be to enact a law predicated on a broadly based consensus.

>> A national referendum for constitutional amendment ensures the people the opportunity to exercise their sovereign rights by accepting or rejecting a proposed constitutional amendment.

(To Ms. TSUJIMOTO)

>> The Democratic Party of Japan takes the position that we should simultaneously discuss both a national referendum system for constitutional amendment and a general referendum system. What is your view on adopting general and advisory national referendum systems to supplement our system of indirect democracy, as has been done in some European countries?

> TSUJIMOTO Kiyomi (Social Democratic Party)

>> Adoption of general and advisory national referendum systems presents a major issue that should be discussed simultaneously with discussions on a national referendum system for constitutional amendment. Before moving directly to a national referendum on constitutional amendment, perhaps a general national referendum can be conducted on some important issue, such as revision of the Imperial Household Law.

(To Ms. TSUJIMOTO and Mr. TAKI)

>> The Democratic Party of Japan takes the position that the minimum voting age should be 18, and that the age of majority and the voting age under the Public Offices Election Law should be lowered to 18 through the process of the discussion. What are your views on this matter?

> TAKI Makoto (People's New Party)

>> I am in favor of a minimum voting age of 18, on the condition that the age of majority under the Civil Code and the minimum voting age under the Public Offices Election Law are also both lowered to 18.

> TSUJIMOTO Kiyomi (Social Democratic Party)

>> In the past, I have stated that we should consider lowering the minimum voting age to even below 18. If the choice is between 18 and 20, I would favor 18.


SAITO Tetsuo (New Komeito)

(In connection with the comments by Ms. TSUJIMOTO)

>> The position of the New Komeito is that a national referendum law should be enacted with a broad consensus in the Diet. We are not thinking of submitting a bill supported only by the ruling parties.

(To Ms. TSUJIMOTO)

>> In the 60 years since enactment of the Constitution, various new values have come into being, such as environmental rights. Do you not think that it is necessary to explicitly incorporate these new values into the Constitution?

>TSUJIMOTO Kiyomi (Social Democratic Party)

>> The same people who opposed legislation on environmental rights and the right to know are now advocating that the Constitution be amended to provide for these rights. We should avoid perpetrating the illusion that constitutional amendment will automatically result in the realization of related policies. We should start by enacting specific laws for the realization of these policies.

(To Ms. TSUJIMOTO and Mr. TAKI)

>> What are your views on how approval or disapproval should be indicated on the ballot, and especially on how blank ballots should be treated?

> TAKI Makoto (People's New Party)

>> Approval should be indicated with a circle, and disapproval with an X for each question. Blank ballots should be included in the total number of valid votes.

> TSUJIMOTO Kiyomi (Social Democratic Party)

>> Taking into consideration the fact that a voter has taken the trouble to go to a voting station, "majority" should be computed on the basis of the total number of votes cast. Blank votes should be counted as nay votes.


KASAI Akira (Japanese Communist Party)

(In connection with the comment by Chairman NAKAYAMA during Ms. TSUJIMOTO's keynote statements)

>> The Research Commission on the Constitution was established for the purpose of conducting broad and comprehensive research on the Constitution of Japan, and it is not a decision-making organ. I wish to point out that the report of the Research Commission is devoid of any binding powers.

(To Mr. TAKI)

>> In your opinion, what is the people's frank and candid view of the ongoing debate in the Diet concerning constitutional amendment and enactment of a national referendum law?

> TAKI Makoto (People's New Party)

>> I believe there is no one who would deny the role that the Constitution of Japan has played in the past.

>> However, I doubt that the Constitution as it now stands can serve us well in the present and in the future. We should not leave the gap between the Constitution and contemporary reality untouched and try to apply this through constitutional interpretation. Such an approach is unbecoming of a nation that stands under the rule of law.

(To Ms. TSUJIMOTO)

>> I understand the phrase "an integral part of this Constitution" contained in Article 96, Paragraph 2 to mean that the fundamental principles of the Constitution must not be altered. What is your view on this matter?

> TSUJIMOTO Kiyomi (Social Democratic Party)

>> I subscribe to the same view. Furthermore, we should deepen our discussions on the meaning of the following statement appearing in the Preamble: "We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith."

>> There are always some limits to constitutional amendment. For instance, the Constitution of the Fifth Republic of France stipulates that the republican form of government be excluded from constitutional amendment, and the Basic Law of Germany prohibits the amendment of certain fundamental principles contained in it.

(To Ms. TSUJIMOTO)

>> Please comment on the contemporary significance of Article 9, an important fundamental principle of the Constitution.

> TSUJIMOTO Kiyomi (Social Democratic Party)

>> Our party says that Article 9 must be preserved in its present form.

>> Article 9 does not stop with pacifism. It is a declaration of Japan as a humanitarian state. We should use Article 9 as a weapon for active engagement in dispute prevention and resolution. We have come to a point where the significance of Article 9 must be redefined.


TSUJIMOTO Kiyomi (Social Democratic Party)

(In connection with the comment by Chairman NAKAYAMA during Ms. TSUJIMOTO's keynote statements)

>> According to various opinion polls, a large part of the public is unfamiliar with the national referendum system for constitutional amendment. Is it permissible to leave this situation as it is?

(To Mr. TAKI)

>> Instead of engaging in discussions under these conditions, this Committee must act to involve the public in the debate, such as by conducting opinion polls. What is your view on this matter?

> TAKI Makoto (People's New Party)

>> Constitutional amendment is not a matter that can be forced through by a Diet majority. Similarly, it is undesirable to enact a national referendum law when the public does not sufficiently appreciate the system. Methods must be devised to increase opportunities for the public to come into contact with information from this Committee.

(Comment)

>> Constitutional amendment should be carried with the overwhelming support of the people. For this, efforts to inform the public are the most important requirement.

(To Mr. TAKI)

>> National referendums and national elections are different in character. Therefore, persons whose civil rights have been suspended should be allowed to vote in national referendums. What is your view on this matter?

> TAKI Makoto (People's New Party)

>> That is one way of looking at it. However, I believe that persons convicted of serious crimes in the political arena should not be given the right to vote.


TAKI Makoto (People's New Party)

(In connection with the comments by Ms. TSUJIMOTO)

>> What constitutes the limits of constitutional amendment is not a matter that can be determined in absolute terms. Therefore, this is a matter that should be presented to the people for their judgment in a national referendum on constitutional amendment.

>> If the Constitution is to be comprehensively revised, I would propose the following "two-staged approach." In stage one, a national referendum would be held regarding approval or disapproval of undertaking a comprehensive revision in the first place. In this stage, the people would also be asked to vote on the scope and specific areas of revision. In stage two, a national referendum would be held on the specific amendments that have been initiated. This is a matter that should be extensively discussed.