Eleventh Meeting

Thursday, May 18, 2006

Meeting Agenda

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

After statements were heard from Prof. KOBAYASHI Setsu and Mr. ITO Makoto concerning the above matters, questions were put to them.

Informants:

  • KOBAYASHI Setsu, Professor, Faculty of Law, Keio University, and attorney-at-law
  • ITO Makoto, President, Ito Juku (bar examination prep school), and Director, Japan Institute of Constitutional Law

Members who put questions to Prof. KOBAYASHI and Mr. ITO:

Main points of Prof. KOBAYASHI's statement

1. Necessity of a national referendum system for constitutional amendment

>> Given the existence of Article 96, it is only natural to have a national referendum law. But the law should have been enacted to create a fair system well before constitutional amendment became a concrete issue involving specific interests. However, because the national referendum law would be a procedural law, it should not be allowed to be influenced too much by discussions concerning the specific contents of constitutional amendment.

2. Issues concerning national referendum legislation

>> In the beginning, I had some misgivings concerning national referendum legislation and feared that the rules would be designed to fit the needs of those in power. However, the outlines of a fair and desirable national referendum law have emerged from the discussions that have taken place over the past couple of years under Chairman NAKAYAMA Taro. The issues that remain unresolved certainly are not serious ones.

3. Relation between national referendum legislation and constitutional amendment

>> If it is not possible to start with procedural matters (national referendum law), it should be possible to start with essential matters (constitutional amendment). If you dwell upon the national referendum law and allow the process to become bogged down at this stage, this will only provide the opposition parties with more material for resistance.

>> The outlines of a desirable national referendum law have already emerged. If enactment of a national referendum law is not possible at this time, the right thing to do is to move ahead to deepen the discussion on the most vital issue on hand: the specific contents of constitutional amendment.

4. What is important now

>> The most important matter is to proceed with discussions concerning the contents of constitutional amendment. However, progress has not been made on this front. For example, the following critical questions should be discussed in connection with Article 9. Should wars of self-defense be allowed or not? What constitutes the scope and limits of self-defense?

>> As a constitutional scholar, I am worried about arguments that have been made in the Diet for bringing about a transformation in the "view of the Constitution." I believe it is necessary for the Diet to deepen its discussions concerning the "view of the Constitution" and to widely present the issues and problems on hand to the people with whom sovereignty resides.

5. General and advisory national referendum system

>> The Constitution of Japan assumes a system of indirect democracy. There are very few exceptions to this. Elements of direct democracy can only be seen in the popular review of Supreme Court justices and in the national referendum system for constitutional amendment. A general and advisory national referendum system is unrelated to Article 96 and is in conflict with the basic principle of the Constitution. This issue should be avoided if it threatens to delay enactment of a national referendum law for constitutional amendment.

Main points of Mr. ITO's statement

1. Position of national referendum law

>> As in the case of criminal procedures, procedural matters often become the determining factor. Therefore, I do not look to the national referendum law as a mere procedural law. Even if a constitutional amendment is ratified within the "bounds and limits of amendment," it would still be very difficult to determine whether the outcome of a majority vote is truly the correct course to take. This lends added importance to procedural legitimacy.

>> Is it correct to conclude that popular sovereignty is expressed through the views of the majority? This matter merits further consideration. When laws infringe upon human rights, the wronged parties may seek relief through the courts. But in the case of constitutional amendment, there is no available means of recourse. Therefore, due attention must be paid to minority views in the enactment of a national referendum law, and enactment must be preceded by thorough debate.

2. Necessity and tolerance

>> The need for a national referendum law derives from the need for constitutional amendment. A national referendum law was not enacted in the past because there was no need for such a law. It is as simple as that.

>> The Constitution of Japan is based on representative democracy, and direct democracy is adopted as an exceptional case in Article 96 and one or two others. In other words, the exercise of popular sovereignty is reserved as the final means and should be exercised only when the people feel that there is an exceptional need for this course of action.

>> The national referendum law should have been enacted in a neutral setting at the time of the promulgation of the Constitution of Japan. But today, there is only a concrete proposal for constitutional amendment from a specific political party and there is no compelling vision for enacting a neutral national referendum law. Under these present conditions, it is better, instead, to discuss constitutional amendment squarely when considering national referendum legislation.

>> If a difference in opinion arises between the people and the Diet, there are various ways in which the people can offer resistance to the Diet, although they have invested the Diet with their trust. One such option would be to undertake a campaign to prevent the initiation of an amendment. Another would be to campaign against enactment of a national referendum law.

>> Public opinion polls point to the low level of public understanding of the Constitution and the low level of awareness of national referendum law. The people's understanding of the Constitution must be heightened. This is an issue that relates to what the country wants to do with the Constitution.

>> A consensus should first be developed within the Diet on the question of "what is the Constitution?" This question relates to the essence of the Constitution in the framework of constitutionalism. Any attempt to enact a national referendum law before such a consensus has been formed would constitute a reversal of the proper order of things.

Main points of questions and comments to Prof. KOBAYASHI and Mr. ITO

TAKAICHI Sanae (Liberal Democratic Party)

(To Mr. ITO)

>> Various public opinion polls show that a growing percentage of the people favor constitutional amendment. I believe that it is necessary to enact a national referendum law before a proposed constitutional amendment is presented by the Diet to the people. What are your views on this matter?

>> What are your views on the necessity of constitutional amendment?

(To Prof. KOBAYASHI)

>> As a university professor, if you were to grade the Liberal Democratic Party's draft constitution, what grade would you give it?

(To both informants)

>> What should be the scope of the national referendum law? Should it be limited to national referendums for constitutional amendment, or should it be extended to cover national referendums on important matters of state?

>> Should the minimum voting age in national referendums be 20 or 18?

(To Prof. KOBAYASHI)

>> Do you think that the age of majority and age of eligible voters should be the same as for participants in national referendums? Or do you think it would be better to set it as the same as the age of eligible voters, that is, twenty years of age for the time being, and lower it to eighteen in the future?

(To both informants)

>> What are your views on the voting rights of people serving penal sentences and people whose voting rights have been suspended for violation of election laws?

>> Regarding prohibition of national referendum campaign activities by specified public service personnel, what are your views on the scope of "specified public service personnel "?

>> What are your views on the ban on participation in national referendum campaigns by public servants, educators and others taking advantage of their official capacities?

(To Prof. KOBAYASHI)

>> What are your views on the significance of "majority" in national referendums?

>> What are your views on the adoption of a minimum voter turnout requirement?


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

(To both informants)

>> The Research Commission on the Constitution engaged in discussions for five years, and this is now being carried forward by the Special Committee for Research on the Constitution. Looking back on these discussions, how would you evaluate them and what is your feeling about them?

>> What are your views concerning the future course of this Special Committee? What should the Diet do to deepen public discussion and raise the level of public awareness?

(To Prof. KOBAYASHI)

>> You stated that you did not sympathize with "restorational constitutional amendment." What does this refer to? What is your position on an "unreasonable view of the Constitution," which would include prescriptions concerning patriotism and the obligations of the people?

(To Mr. ITO)

>> It has been said that one of the reasons that Japan lacked any real or deep constitutional discussion was the existence of the "those favoring the preservation of the Constitution in its current form" who avoided debate, thereby effectively undermining meaningful exchanges. What are your views on this matter?

(To both informants)

>> Modification of the Constitution through the process of re-interpretation has been allowed to go on without limit. Under these circumstances, it would be possible to characterize constitutional amendment as a means toward restricting the exercise of power and re-establishing the rule of law. What are your views on the function of the Constitution in "applying limits to the exercise of power?"

(To Prof. KOBAYASHI)

>> I would like to ask you concerning the ban on participation in national referendum campaigns by public servants and educators in their official capacities. Suppose the scope of punishable offenses were to be further narrowed by defining "abuse of office and intimidation" as a criminal offense. That is, it would constitute a criminal offence when abuse of office is accompanied by intimidation.


ISHII Keiichi (New Komeito)

(To both informants)

>> I believe we should not make direct links between discussions of the actual contents of constitutional amendments and discussions of the national referendum law, which is a procedural law. What are your views on this matter?

>> I believe that national referendum legislation should be enacted as soon as possible. What are your views on this matter?

(To Mr. ITO)

>> What are your views on the significance of "majority" in national referendums?

>> You have stated that "majority" in national referendums should be defined as the majority of eligible voters. It seems to me that this would result in the bundling of a wide diversity of views under the single heading of opposition. How would you respond to this?

(To both informants)

>> New Komeito's position on constitutional amendment is described as "adding to the Constitution." How do you evaluate this position?


KASAI Akira (Japanese Communist Party)

(To both informants)

>> What are your views on the dispatch of the Self-Defense Forces to Iraq, which is said to be in a state of war, and other matters related to the current application of the provisions of the Constitution?

>> Constitutions function to restrict the scope of state power. I believe this to be the basic form of governance that mankind has arrived at through a historical process. What opinions do you have on this historical background and the preservation of this view of the Constitution?

>> The Asahi Shimbun's May 3 public opinion poll reveals that the majority of the people are not necessarily in favor of enacting national referendum legislation at this time. Do you feel that the preconditions for moving forward on enactment of national referendum legislation have been met?


TSUJIMOTO Kiyomi (Social Democratic Party)

(To Mr. ITO)

>> The Constitution establishes certain matters that remain unchanged even when there is a change in government. If this is the significance of a rigid constitution, I believe we should approach the matter of the national referendum law with full awareness of the importance of constitutional rigidity. In the context of a rigid constitution, what features should characterize a national referendum system for constitutional amendment?

(To Prof. KOBAYASHI)

>> I believe that the term "legislative nonfeasance" has been brandished about too readily in reference to the absence of a national referendum law. What are your views on this matter?

(To both informants)

>> Article 96 contains the wording "an integral part of this Constitution." This can be interpreted to mean that there are certain limits to constitutional amendment. What are your views on the limits to amendment?

>> The draft constitution of the Liberal Democratic Party contains matters that would transform the "view of the Constitution." How do you evaluate these matters from the perspective of the significance of constitutionalism and the limits to amendment?


TAKI Makoto (People's New Party and New Party Nippon and Group of Independents)

(To both informants)

>> There is the question of how abuse of the Constitution by state power can be prevented. For instance, do you think that abuse of Article 9 can be prevented by changing the wording to make it easier to understand?

(To Mr. ITO)

>> You stated that opposition to enactment of a national referendum law is also an integral component of the people's right to resistance from the standpoint of opposing constitutional amendment. I believe that continuation of this form of resistance and campaigning for the preservation of the Constitution only makes it more difficult to prevent the abuse of the Constitution. What is your response to this?

(To both informants)

>> Given our current political situation, it is quite difficult to prevent the abuse of the Constitution. What concrete methods are available for making improvements in the application of the provisions of the Constitution?

>> I believe a general and advisory national referendum system should be created for application to important legislative bills. I think such a system would also be important from the perspective of suppressing the abuse of power. What are your views on this matter?