Twelfth Meeting

Thursday, June 1, 2006

Meeting Agenda

Matters relating to a national referendum system for constitutional amendment and the Constitution of Japan (relation between advertising and a law concerning national referendum for constitutional amendment)

After statements were heard from Mr. AMANO Yukichi and Mr. YAMADA Yoshiaki concerning the above matters, questions were put to them.


Bill for Law Concerning Procedures for Amendment of the Constitution of Japan (presented by Mr. YASUOKA Okiharu and four others: House of Representatives Bill No. 30)
Bill for Law Concerning Initiation Procedures and National Referendums for Amendment of the Constitution of Japan and Other Important Matters of State (presented by Mr. EDANO Yukio and three others: House of Representatives Bill No. 31)

Statements were heard from Mr. FUNADA Hajime (Liberal Democratic Party) and from Mr. SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents), who had each presented one of the abovementioned bills, explaining the reasons for its submission.

Informants:

  • AMANO Yukichi, Columnist
  • YAMADA Yoshiaki Member, Broadcast Standard Review Board, Chairman, Broadcasting Ethics Sub-Committee, National Association of Commercial Broadcasters in Japan

Members who put questions to Mr. AMANO and Mr. YAMADA:

Main points of Mr. AMANO's statement

1. Restrictions on the media

>> It is laudable that the draft proposals of both the ruling parties and the Democratic Party of Japan contain no restrictions on the media.

2. Opinion advertising on television

>> Likewise, in principle, there are no restrictions placed on advertising. However, opinion advertising in newspapers and television should be treated differently because of their different histories. The relation between opinion advertising and the broadcast media has yet to mature.

>> For example, consider opinion advertising on television. By swaying undecided voters, such advertising may determine the outcome of voting on a proposed constitutional amendment. Television can serve as both a tool and a weapon in interacting with the public.

3. Rules of fairness for opinion advertising on television

>> Given the lack of maturity in the relation between opinion advertising and the broadcast media, one option would be to place a total ban on opinion advertising on television concerning constitutional amendment. However, placing a total ban to avoid confusion may not be the best way to proceed, and some other forms of restriction would have to be adopted.

>> The Diet should support the establishment of rules of fairness to prevent broadcasters from using their financial resources to sway public opinion.

Main points of Mr. YAMADA's statement

1. Constitutional amendment and the mission of the broadcast media

>> No restrictions should be placed on media reporting and commentary in connection with national referendums. Opinion advertising on constitutional amendment should be accorded the same treatment because it serves the right to know.

2. Review of advertising in private broadcasting enterprises

>> In accordance with the Basic Principles of Broadcasting Ethics and other standards, broadcasters routinely review advertising content to ensure that it does not violate laws and self-regulatory standards. We would do the same thing for opinion advertising on constitutional amendment. We would devise a review process that would determine whether or not the advertising contained information is beneficial to viewers.

3. Broadcast advertising in national referendum campaigns

>> I am uncomfortable with the fact that restrictions on advertising prior to voting are limited to the broadcast media. Broadcasters already voluntarily restrict the airing of the opinion advertising of political parties on voting day. With this proven track record, I believe this matter should be left to the independent judgment of broadcasters, and not to legislative bans.

4. Broadcasts by political parties and others

>> I am uncomfortable with allocating broadcasting time for opinion advertising on constitutional amendment to political parties according to the number of seats held in the Diet from the perspective of the principle of political impartiality as stipulated in the Broadcast Law. Even after an amendment has been initiated by the Diet, positions for and against the amendment must be treated with maximum fairness and impartiality. This must continue until after voting has been completed.

Main points of questions and comments to Mr. AMANO and Mr. YAMADA

HANASHI Yasuhiro (Liberal Democratic Party)

(To Mr. AMANO)

>> What are your views on the pros and cons of enacting a national referendum law?

(To Mr. YAMADA)

>> Should media restrictions in national referendum campaigns be treated as being equivalent to existing restrictions on commercial advertising?

>> What are the inadequacies in the current broadcast standards of the National Association of Commercial Broadcasters or in the advertising review processes of individual broadcasting enterprises?

>> Mr. AMANO stated that opinion advertising is treated differently from one broadcaster to another and pointed out that in broadcast advertising, the text of the advertising and physical gestures have a very major influence. In this context, can you describe the process of review of advertisements?

(To Mr. AMANO)

>> How should opinion advertising be restricted? Should this be done by law, or should it be left to voluntary and self-regulatory measures?

(To Mr. YAMADA)

>> How would you respond to the concern that those with financial resources will be able to exercise major influence by advertising their views on television?

(To both Mr. AMANO and Mr. YAMADA)

>> Should the national referendum law contain provisions on the crime of bribery that prohibit using money to win voters over? What are your views on the pros and cons of such provisions?

(To Mr. YAMADA)

>> I would like the National Association of Commercial Broadcasters to take into account the current and future discussions of the Diet when formulating its broadcast standards and code of ethics. How would you respond to this?

(To both Mr. AMANO and Mr. YAMADA)

>> I believe the discussions concerning the national referendum law should serve as an opportunity to consider the form television opinion advertising in general should take. How would you respond to this?

SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents)

(To both Mr. AMANO and Mr. YAMADA)

>> The draft proposals of both the ruling parties and the Democratic Party of Japan contain no restrictions on the media. What is your assessment of the process through which this conclusion was reached? What are your views on the form a national referendum legislation should take?

>> Do you think it would be possible to gain the support of the public to use taxes to pay for broadcasting the views of political parties on constitutional amendment?

(To Mr. YAMADA)

>> Can you tell us how much broadcasting political advertisements costs? I would also like to know the actual record in last year's general election.

(To both Mr. AMANO and Mr. YAMADA)

>> Do you think that the political advertising in last year's general election was effective?

(To Mr. YAMADA)

>> Is it conceivable that a broadcaster may charge different rates for political advertisements according to the content of the message, or treat favorably one of the positions to be broadcast repeatedly and intensively?

(To Mr. AMANO)

>> You have stated in a newspaper article that television advertising may be used as a tool for mind-control. Can you comment on the details of this allegation?

(To both Mr. AMANO and Mr. YAMADA)

>> It was stated that it would be meaningless to restrict broadcast advertising during the seven days prior to voting. If so, then what kinds of restrictions are viable?

MASUYA Keigo (New Komeito)

(To Mr. YAMADA)

>> You have stated your opposition to restrictions on advertising prior to voting and have emphasized voluntary measures. Is the National Association of Commercial Broadcasters capable of instituting effective voluntary restraints concerning this matter?

(To Mr. AMANO)

>> Other than restrictions on advertising prior to voting, can you think of any other necessary restrictions pertaining to national referendums?

>> Regarding restrictions on advertising during the "seven days" prior to voting, what are your views on the length of this period?

(To both Mr. AMANO and Mr. YAMADA)

>> I feel that Internet advertising has the same influence as broadcast advertising. What are your views on this matter?

KASAI Akira (Japanese Communist Party)

(To both Mr. AMANO and Mr. YAMADA)

>> What constitutes advertising? And, what does the public seek to find in advertisements?

(To Mr. YAMADA)

>> In the broadcast standards of the National Association of Commercial Broadcasters, what is the intent of the very rigorous provisions concerning advertising?

(To Mr. AMANO)

>> How much does it cost to broadcast opinion ads on television?

(To both Mr. AMANO and Mr. YAMADA)

>> Allocating broadcasting time according to the number of seats held in the Diet favors those supporting constitutional revision. Furthermore, from the perspective of the financial resources needed for opinion advertising, there is the danger that very large-scale campaigns for constitutional revision will be mounted. What are your views on these matters?

TSUJIMOTO Kiyomi (Social Democratic Party)

(To Mr. YAMADA)

>> The experiences that we have had with opinion advertising in the Social Democratic Party lead me to think that review standards are not necessarily clear. Can you explain the key points of the review standards?

>> Have there been any cases of opinion advertising by political parties at times other than during elections? Or, are there any rules for refusing to carry such political ads?

>> Regarding opinion advertisements on national referendums or the Constitution, from the perspective of fair treatment, would broadcasters refuse to carry such ads unless requests for broadcast time were received from both those in favor and those opposed?

>> Is there a rule that says that the name of the advertiser must appear in opinion ads?

(To Mr. AMANO)

>> In your opinion, what impact did television have in last year's general election?

(To Mr. YAMADA)

>> You stated that you were uncomfortable with the idea of allocating broadcasting time for opinion advertising on constitutional amendments according to the number of seats held in the Diet. I would like to ask whether the National Association of Commercial Broadcasters is engaged in discussions on how to ensure fairness.

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

(To Mr. YAMADA)

>> Is the National Association of Commercial Broadcasters truly capable of instituting a full range of voluntary and self-regulatory measures pertaining to national referendums for constitutional amendment, such as fair treatment of both sides in political advertising and the introduction of reduced advertising rates?

>> Regarding constitutional amendment, there may be significant differences in the financial resources of those for and those against the amendment. Does this not mean that it will be impossible to ensure equal opportunity in the expression of the views of the two camps?

(To both Mr. AMANO and Mr. YAMADA)

>> One of the objectives of restricting advertising prior to voting is to provide a period for reflection. But I believe that another objective is to ensure opportunities for rebuttal. What are your views on this matter?

(To Mr. YAMADA)

>> What are your views on restricting the participation of public service personnel in national referendum campaign activities?

Explanation of reasons for submission of "Bill for Law Concerning Procedures for Amendment of the Constitution of Japan" (presented by Mr. YASUOKA Okiharu and four others: House of Representatives Bill No. 30) by Mr. FUNADA Hajime (Liberal Democratic Party), one of the presenters of the bill

On behalf of the presenters of the "Bill for a Law Concerning Procedures for Amendment of the Constitution of Japan" presented jointly by the Liberal Democratic Party and New Komeito, I would like to explain the reasons for submission of the bill and to outline its content.

Article 96 of the Constitution of Japan stipulates the procedures for constitutional amendment. Although nearly 60 years have elapsed since the enforcement of the Constitution of Japan, the national referendum legislation called for in these procedures has yet to be enacted. It may be no exaggeration to say that one of our most basic responsibilities as representatives of the people and members of the Diet is to enact those fundamental laws ancillary to the Constitution. Enacting a national referendum law for constitutional amendment involves creating a system that will enable the people, in whose hands rests the powers of establishing the Constitution, to exercise this power. By enacting such legislation, the people's right of constitutional amendment will be restored and concrete systems will be created for the achievement of true popular sovereignty.

Since its inception during last year's special session of the Diet, this Special Committee for Research on the Constitution of Japan has been actively engaged in discussions of various aspects of a national referendum law for constitutional amendment. These discussions have included the presentation of the respective positions taken by the political parties and groups, hearings conducted with invited experts and learned informants, and free discussions among members of the Special Committee. Parallel to these discussions, beginning in March 2006, a "summarization of issues" pertaining to the design of a concrete legal system was undertaken in the directors' meeting of the Special Committee. The outcome of this undertaking has been reported to all members in writing. That is, the Liberal Democratic Party, New Komeito and the Democratic Party of Japan and Club of Independents were able to arrive at a consensus on almost all points pertaining to the design of the legislation. Nevertheless, it was confirmed that the three political parties remained at odds on several important points.

In light of these circumstances, it was felt that it would be desirable to abide by the following procedures in enacting the procedural law for the amendment of the Constitution, which sets forth the fundamental rules of the nation. The political parties would separately submit draft bills reflecting what they believed to be the best system at the present juncture. These bills would then be debated openly and in full view of the public in the committees and plenary session of the Diet. The opinions and criticisms received in the course of this debate would be utilized in improving upon the proposed bills and creating a broader consensus. This constitutes the background to the submission of the present bill.

The salient features of this bill are as follows:

First, the present bill is specifically designed to function as a law for the implementation of the provisions of Article 96 of the Constitution of Japan, and is exclusively applicable to the "national referendum system for constitutional amendment."

Second, "voting date" shall be set by resolution of the Diet, but must fall within a period of between 60 and 180 days inclusive, counting from the date on which the constitutional amendment has been initiated by the Diet.

Third, "eligible voter" is defined to be citizens of Japan who are 20 years or older.

Fourth, when a constitutional amendment has been initiated, a Public Relations Council for Constitutional Amendment shall be established in the Diet for the purpose of undertaking public relations activities concerning the contents of the proposed constitutional amendment. Membership shall consist of twenty persons with ten persons chosen from each House of the Diet.

Fifth, regarding "method of balloting," approval shall be indicated by drawing a circle on the ballot, and disapproval shall be indicated by drawing an X. Blank ballots shall be treated as void. An amendment shall be deemed to have been approved by the people if the number of votes for approval exceeds one-half the total number of valid ballots cast.

Sixth, regarding "national referendum campaign," national referendum campaign activities shall, in principle, be free and unrestricted. However, minimum necessary restrictions shall be adopted to ensure fairness in voting.

Pursuant to the above, the bill contains the following restrictions and provisions concerning campaign activities. [1] Persons involved in administering the national referendum and specified public service personnel shall be prohibited from participating in national referendum campaign activities while in office. [2] Public service personnel and educators shall be prohibited from using their official positions in participating in national referendum campaign activities. [3] During the one-week period leading up to the voting date, restrictions shall be placed on television and radio broadcasting of political advertisements. (4) Certain portions of the national referendum campaign shall be supported by public funds, including the provision of free advertising time and space in television, radio and newspapers to political parties.

Seventh, the following provisions shall apply to "penalties." [1] Only minimum necessary penalties shall be adopted to ensure fairness in voting. [2] Bribery charges will solely apply to egregious acts that go beyond the scope of conventional social behavior. For this purpose, the crime of bribery shall be defined and its scope limited to the following. "Bribery refers to the organized solicitation of a significant number of voters to vote in favor, to vote in opposition, or to abstain from voting, and to compensate compliance with the provision of money or the provision of goods in amounts sufficient to influence voting behavior."

Eighth, to set up the procedures for the initiation of constitutional amendments, the Diet Law shall be revised in the following areas. The number of sponsors needed to submit a proposed constitutional amendment shall be stipulated. Provisions shall be made for empanelling a Constitution Examination Board for examining a proposed constitutional amendment that has been submitted. Special measures shall be adopted pertaining to the examination procedures of the Constitution Examination Board, which will be charged with the critical task of examining a proposed constitutional amendment.

Finally, the provisions of this legislation shall come into force as follows. Provisions pertaining to the implementation of national referendums shall come into force upon the lapse of two years from the date on which the law is promulgated. Revisions of the Diet Law shall come into force on the day on which the Diet is called into session for the first time after the law is promulgated.

This completes my explanation of the reasons for the submission and the outline of the bill.

I respectfully request the members of this Special Committee to carefully discuss this bill and to speedily approve it.

Explanation of reasons for submission of "Bill for Law Concerning Initiation Procedures and National Referendums for Amendment of the Constitution of Japan and Other Important Matters of State" (presented by Mr. EDANO Yukio and three others: House of Representatives Bill No. 31) by Mr. SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents), a presenter of the bill

On behalf of the presenters of this bill who are members of the Democratic Party of Japan and Club of Independents, I would like to explain the "Bill for Law Concerning Initiation Procedures and National Referendums for Amendment of the Constitution of Japan and Other Important Matters of State."

This bill is designed to jointly establish the procedures for initiation of two systems: the national referendum system for constitutional amendment as prescribed in Article 96 of the Constitution of Japan, and an advisory national referendum system concerning important matters of state.

Specific procedures for constitutional amendment should have been enacted in the form of a law ancillary to the Constitution in 1946 simultaneously with the enactment of the Constitution. Moreover, these procedures essentially should be established separately from any specific discussions of constitutional amendment in an impartial and fair manner. This is because, regardless of whether amending the Constitution is easy or difficult, any biased system will fail to accurately reflect the will of the people and may ultimately lead to the self-destruction of constitutionalism.

For these reasons, we believe necessary legislation should be enacted before any further progress is made in specific discussions concerning the Constitution itself. The system to be established must be one that is acceptable to both those promoting and those opposing constitutional amendment. The present bill was submitted with these matters in mind.

The national referendum system for constitutional amendment provides for a direct opportunity to register the popular will. As such, it stands as an exception to the principle of indirect democracy that is basic to the affairs of state in Japan. However, from the perspective of constitutionalism, amendment of the provisions of the Constitution is not necessarily the only case in which it is desirable to directly register the popular will.

Needless to say, it would be unacceptable to establish legal procedures that would curtail the legislative powers of the Diet without referring to the will of the Diet. On the other hand, there would be nothing wrong if the Diet, acting on its own accord and volition, decided to refer a matter (in particular, matters related to constitutionalism), to the people for advisory purposes. Exercising the powers of the Diet while paying due attention to the will of the sovereign people in this manner would not in any way violate the Constitution. Rather, such a course of action would be in accord with the intent and spirit of the Constitution.

For this reason, we are proposing a single piece of legislation that will establish an advisory national referendum system as a general law, and a national referendum system for constitutional amendment as a special measures law under the general law.

This covers the background and reasons for submission of the present bill. Next, I shall review the contents of the main points of the bill.

The first point concerns the scope of eligible voters in national referendums. Our party has long advocated lowering the age of majority to 18. We believe this matter should be acted on as soon as possible. But in the very least, action should be taken to maximize opportunities for the participation of the younger generation in voting in national referendums for constitutional amendment. This is because they are the ones who will be involved in the future of this country for longest period of time.

For this reason, as a rule, this bill adopts 18 as the minimum voting age in national referendums. Furthermore, it makes provisions for exceptionally lowering the minimum age to 16. This exception would be invoked depending on the issue of the referendum and subject to the approval of the Diet.

The second point concerns the method of marking the ballot and the definition of "majority." Article 96 requires the people's "ratification" of amendments initiated by the Diet. What should be done with the ballot of a voter who has taken the trouble of going to a voting place but then has not indicated his or her approval of the proposal? We believe it is appropriate to judge that such a voter did not have the intent to ratify the proposal.

For this reason, this bill stipulates that persons approving the initiative of the Diet and seeking to ratify it shall indicate their approval by drawing a circle on their ballots. The Constitution shall be amended when the number of ballots bearing a circle exceeds one-half of all ballots cast.

The third point concerns so-called national referendum campaign activities. A national referendum resembles a public election in that both involve voting. However, in the case of public elections, the principal actors in campaigning are effectively limited to political parties and the candidates. By contrast, in the case of national referendums, any member of the public with an opinion either in favor or against an initiative can potentially be a principal actor in campaign activities. Furthermore, in the case of national referendums, it is impossible to distinguish between campaigning "for or against" an amendment and the expression of political views. Any attempt to place restrictions on campaigning can act to have a serious suppressive impact on the expression of political opinions.

Therefore, this bill has been crafted to minimize this suppressive impact. First of all, as a rule, the bill does not prohibit the participation of specified public service personnel in campaign activities. Nor does it prohibit them or educators from participating in campaign activities in their official capacities. As an exception to this rule, the bill does prohibit the participation in campaigning of public service personnel involved in the administration of a national referendum.

The buying of votes certainly should not be allowed in national referendums. However, to prevent a suppressive impact, it would be necessary to craft stipulations that would apply only to the truly egregious cases of bribery. However, because it is very difficult to craft requirements to constitute provisions that would apply only to the truly egregious cases of bribery, the present bill does not contain any provisions concerning bribery.

This completes my exposition of the present bill.

It is my hope that both this bill and the bill presented by the ruling parties will be discussed with due humility and earnestness so that an impartial and fair system acceptable to those favoring amendment as well as those opposed to amendment can be created.