Third Meeting

Thursday, October 13, 2005

Meeting Agenda

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

(Morning)

After statements were heard from Prof. TAKAMI Katsutoshi and Prof. TAKAHASHI Masatoshi concerning the above matters, questions were put to them.

(Afternoon)

Free discussion was held among the members on the above matters.

Informants:

Members who put questions to Prof. TAKAMI and Prof. TAKAHASHI:

Main points of Prof. TAKAMI's statement

1. Court ruling of September 14 and drafting of a national referendum bill

>> Drafting of a national referendum bill for constitutional amendment must take into account the September 14, 2005 ruling of the Supreme Court Grand Bench on the unconstitutionality of provisions of the Public Offices Election Law concerning limits placed on the voting rights of Japanese citizens residing overseas.

2. Voting rights and right to vote in national referendums

>> The September 14 ruling states that voting rights are based on the principle of popular sovereignty and must be ensured. In this context, the right to vote in national referendums is directly linked to popular sovereignty. The power to enact a constitution lies with the people, and the essence of the right of constitutional amendment is found in the reservation of the right of the people to amend or to delete provisions of the constitution.

3. Scope of "people" eligible to participate in national referendums

>> The "people" who elect the representatives constituting the Diet as an organ of the state as prescribed by the Constitution, and the "people" who participate in the revision of the Constitution on which the Diet is based do not necessarily have to be the same. Provisions of the Constitution affect the people over a long period of time into the future. Therefore, eligibility for participation in the determination of the Constitution should be extended to as many people as possible, and the minimum age of eligibility should be set at 18.

4. Pros and cons of limitations placed on the right to vote in national referendums

>> The ruling of September 14 has established a standard that states that any limitations placed on the right to vote must be predicated on an "unavoidable reason." This standard must be taken into consideration when formulating the procedural laws for national referendums. An unavoidable reason cannot be said to exist other than in cases where fairness in a national referendum cannot be effectively ensured or where fairness is extremely difficult to ensure.

>> This standard provides no justification for disallowing participation in national referendums by citizens residing overseas, persons serving penal sentences, or persons who have undermined the fairness of national referendums. Disallowing the participation of persons who have undermined the fairness of national referendums will require legislative fact of the high probability that the participation of such persons will undermine the fairness of national referendums.

5. Pros and cons of restrictions on expressions of support or rejection of proposed constitutional amendments

>> There are two opposing views concerning restrictions on false reporting. The first favors restrictions as a necessary measure for ensuring fairness of national referendums. The other view is that restrictions are unnecessary because the best way to fight false claims is to allow free expression of rebuttals. Such restrictions would apply to the content of views expressed in the unfettered decision-making process of the people and are unacceptable in light of the purpose of national referendums and the guarantee of the freedom of political expression. However, restrictions placed on wrongful use of newspapers and magazines through payment of money and other means are acceptable on the condition that the application of such restrictions is not based on a judgment of the truth or falsehood of what has been reported.

>> Restrictions on the expression of views by public servants and foreign nationals should be considered from the perspective of a minimum level of restrictions applicable to the time, place and method and neutral in terms of content. In the case of public servants, Article 21 ensures freedom of expression so long as such views do not take advantage of public office and are expressed outside of working hours. The expression of views by foreign nationals in free discussions contributes to deepening the discussions. Therefore, it is unwise to restrict the freedom of expression of foreign nationals.

>> On the other hand, neutrality should be preserved in the government's public relations activities. For instance, pamphlets and other literature concerning proposed constitutional amendments should present views both in favor of and opposed to amendment. Countries frequently conducting national referendums, such as Ireland and Australia, have gone through a series of trial and error on this point.


Main points of Prof. TAKAHASHI's statement

1. Details of the drafting of the National Referendum Bill of 1953 and failure to submit to the Diet

>> A national referendum law should have been enacted in the past based on the provisions of Article 100, Paragraph 2. Two failed attempts were made in the past, and the present effort represents the third attempt. I hope the law to be enacted will suit the contemporary requirements of fairness and justice.

2. Problems pertaining to the national referendum bill and contemporary considerations

>> The following matters should be taken into account in drafting a national referendum bill: (a) compliance with the restrictions and requirements contained mainly in Article 96; (b) due consideration of legal precedence; (c) the extent to which matters related to government elections apply to national referendums.

>> Since national referendums and government elections may be held simultaneously, rules concerning such matters as voting age and restrictions and penalties on campaigning activities should be matched as closely as possible. From this perspective, adjustments should be made with the Public Offices Election Law in tandem with the enactment of a national referendum law.

>> There are various technical issues concerning the implementation of national referendums. Many of these issues, such as smooth implementation of overseas voting and budgetary matters, can be dealt with through flexible application of existing laws. The system should be rationally designed so long as clear violations of the Constitution can be avoided.

>> Social and technological developments, such as overseas voting and the proliferation of the Internet, should be taken into consideration. The system should be designed from the perspective of appropriately reflecting the will of the people.

3. Notable problems relating to drafting a bill

>> To avoid confusion, the minimum voting age in national referendums should be set at age 20, or the same as in government elections. If the voting age in government elections is lowered to 18, the same should be done for national referendums.

>> What should be the unit of questions put to referendum? In the United States, various states have adopted various units. If a question can be asked as a separate and individual question, this should be done. If a number of related matters form an integral unit, voting can be carried out on individual units. If the Constitution is to undergo comprehensive revision, voting can be carried out on a unified package of questions. Solutions will vary depending on the specific conditions, and it will be difficult to draft a law that covers all possibilities.

>> Various voting methods are possible. If we follow the provisions of Article 96, it should be enough to indicate support by merely marking a circle on the ballot and by defining "the majority" to consist of the majority of all ballots cast. There is another alternative that is within the scope of the provisions of the Constitution. Voters would indicate support or rejection of an amendment by marking a circle or a cross, respectively. In this case, unmarked ballots would be considered void, and "majority" would be defined as the majority of valid ballots cast.

>> The argument has been made that, in order to avoid confusion, ratification of an amendment should be finalized only after all legal actions against the referendum have been settled. Confusion can be avoided to a certain degree by delaying the date of coming into force. A rule has been suggested for limiting the filing of all legal actions exclusively with the Tokyo High Court within 30 days. To ensure fair and appropriate legal recourse, consultations should be conducted with the Ministry of Justice and the Supreme Court for designing a realistic system.

>> The participation of foreign nationals in campaigning activities in national referendums would influence political decisions and execution of matters related to government. In light of the precedence established in the McLean case, the participation of foreign nationals cannot be allowed. Furthermore, any effort to define the scope of allowable activities will face technical difficulties.

>> Regarding restrictions on campaigning activities in national referendums, it is difficult to determine the extent to which differences can be allowed from the rules that apply to government elections. However, in light of the rules and experiences of foreign countries, such restrictions should be kept to minimum necessary levels.

>> It is necessary to ensure smooth transition from the initiation of an amendment to holding a national referendum, and from promulgation of an amendment to its effectuation. Because no prior legislation exists on these matters, decisions will have to be made on these points. The Constitution assumes partial amendment. Some thought will have to be given to whether this approach should be maintained.


Main points of questions and comments to Prof. TAKAMI and Prof. TAKAHASHI

HANASHI Yasuhiro (Liberal Democratic Party)

(To Prof. TAKAMI)

>> What is your response to the view that failure to enact a national referendum law for constitutional amendment represents legislative nonfeasance?

>> The interests of the young and old may conflict in a society experiencing declining population. To properly reflect the views of the young, I believe the scope of voter eligibility in both national referendums for constitutional amendment and government elections should be extended as far as possible. What are your views on this matter?

>> Any attempt to enforce restrictions on campaigning in national referendums through the application of penalties should be kept to minimum necessary levels. As in the case of violations of the Public Offices Election Law, arrests related to violations of campaigning rules in national referendums should, as a rule, be postponed to after the referendum. The voiding of election results acts as an effective deterrent against violating the Public Offices Election Law. However, in the case of national referendums, there is very little to deter a violator acting on conviction. What are your views on the effectiveness and limits to restrictions on campaigning in national referendums through penalties?

(To Prof. TAKAHASHI)

>> It has been argued that enactment of a national referendum law on constitutional amendment can be postponed until when a constitutional amendment is actually initiated. However, considering the need to adjust voter lists and to inform the public on restrictions that apply to campaigning activities, I believe the law must be in place well before an amendment is initiated. What is your view on this matter?

>> There are various views regarding the legitimacy of the present Constitution, for example that a national referendum should have been held on the Constitution when Japan regained its independence. What are your views on the legitimacy of the present Constitution?

>> Regarding restrictions on campaigning activities in national referendums, it will be meaningless to arrest perpetrators of false reports after the referendum. I believe it is more meaningful to provide for the right of rebuttal and to ensure opportunities for the expression of differing opinions. What is your view on this matter?

>> Will plaintiffs in suits filed against national referendums for constitutional amendment be restricted to individuals, or will certain groups and organizations be able to act as plaintiffs?

(To both Prof. TAKAMI and Prof. TAKAHASHI)

>> In the case of a minor amendment, will it be possible to present not only the proposed amendment but also the entire Constitution with the inclusion of the proposed amendment for voting in a national referendum on constitutional amendment?


TSUTSUI Nobutaka (Democratic Party of Japan and Club of Independents)

(To Prof. TAKAMI)

>> Is it better for the minimum age of voting in national referendums to be the same as the age of majority as stipulated in the Civil Code? I believe it is not necessary for the minimum voting age to be the same as in government elections. What is your view on this matter?

(To Prof. TAKAHASHI)

>> In considering the scope of voter eligibility, instead of focusing on technical and budgetary problems, should not we focus on the essential differences that exist between government elections and national referendums?

>> You stated that for a comprehensive revision of the Constitution, it would be better to vote on a unified package. While I am opposed to a comprehensive revision, it seems to me that it would be possible to vote on individual questions even in the case of a comprehensive revision. Would you like to comment?

>> If voting were to be carried out on the basis of distinct units, would not the views of those who are opposed to a certain portion of the unit be reflected in the outcome?

(To both Prof. TAKAMI and Prof. TAKAHASHI)

>> What reason would there be for setting the minimum age of voting in national referendums at 18? What reason is there for the minimum age not to be 19 or 17?

>> Restrictions on campaigning activities in national referendums for constitutional amendment should be kept to minimum necessary levels. The real problem lies in the public relations activities that the government will engage in. I believe the government should maintain neutrality and include views both in favor and opposed to the amendment in its activities. What is your view on this matter?


OTA Akihiro (New Komeito)

(To Prof. TAKAMI)

>> The national referendum bill proposed by the ruling parties contains no intent to control the media. As a rule, media coverage of national referendums will be free and unhampered. I believe it is important to utilize the conventional media and to fit this into the public space. What is your view on this matter? What is your view on the use of the Internet?

(To Prof. TAKAHASHI)

>> What is your view concerning restrictions on false reporting in national referendum campaigning?

(To both Prof. TAKAMI and TAKAHASHI)

>> I believe it will be difficult to conduct a national referendum at the same time as a government election. What is your view on this matter? Would it make a difference if constitutional amendment were the most important issue in a government election?

>> If balloting is undertaken on individual questions, a voter may oppose all the questions if he or she is opposed to one of the questions on the ballot. Considering this possibility, do you not think that the most important issues should be submitted to national referendums alone and apart from any other question?


KASAI Akira (Japanese Communist Party)

(To Prof. TAKAMI)

>> I believe the legitimacy of the present Constitution has been fully established. What is your view on this matter?

>> At the time of the enactment of the Constitution, the government prepared responses to various anticipated questions. According to these materials, constitutional amendment procedures were purposely made difficult in order to prevent excessive amendment. In your view, what is the significance of the amendment procedures?

>> It is reported that in certain countries, "majority" in a national referendum is defined as the majority of all eligible voters. Does this derive from the intent to strengthen popular sovereignty?

(To both Prof. TAKAMI and Prof. TAKAHASHI)

>> I believe that the original reason for a constitution is to restrict the powers of the state and to guarantee the fundamental human rights of the people. In your view, what is the significance of a constitution and what is the significance of constitutional amendment?


TSUJIMOTO Kiyomi (Social Democratic Party)

(To Prof. TAKAMI)

>> Before embarking on discussions of a national referendum law, is it not the responsibility of the legislature to first resolve the problem of the overseas voting system, which the Supreme Court has ruled to be unconstitutional?

>> If the right to vote in a national referendum has been violated, would it be possible to sue for nullification of the referendum?

>> It does not make sense to argue for voting on a unified package in a national referendum simply on the grounds that initiation of a constitutional amendment is predicated on a special majority in both Houses of the Diet. What is your view on this matter?

(To Prof. TAKAHASHI)

>> Even when a comprehensive revision of the Constitution is being proposed, some people may choose to support certain portions of the existing Constitution. Taking this possibility into consideration, I believe that voting on a unified package should not be adopted. What is your view on this matter?


TAKI Makoto (People's New Party)

(To Prof. TAKAMI)

>> The September 14 ruling of the Supreme Court does not provide any logical grounds for your position that the voting age in national referendums for constitutional amendment should be lower than the current voting age in government elections. Can you comment on this matter in greater detail?

(To Prof. TAKAHASHI)

>> You have expressed the view that it will be difficult to stipulate in the national referendum law the unit of questions to be posed. But if this matter is not written into law, would this not lead to problems in suits filed against the referendum?

(To both Prof. TAKAMI and Prof. TAKAHASHI)

>> Who would be eligible to file suit against a national referendum? What is your thinking on the argument that a constitutional amendment should not go into force until decisions on all suits have been finalized?

Main points of comments made by members in free discussion (in order of presentation)
Main points of initial round of comments by representatives of each party

KONDO Motohiko (Liberal Democratic Party)

>> It is not particularly difficult to separate the discussions of the procedures of constitutional amendment from discussions of the content of amendments. There is a fundamental difference between national referendums for constitutional amendment and other general national referendums. The latter should not be made the subject of discussion in this Committee.

>> In our previous discussion, we arrived at a general consensus on the following points: that national referendums should not be conducted simultaneously with government elections; and, that the proposed constitutional amendment need not appear on the ballot and that it would be sufficient to display the amendment at polling places.

>> While we did not arrive at a consensus, it did appear that we would be able to reach a consensus in the future on the following points: that, as a rule, balloting should be conducted on individual questions, but that voting on a unified package would not be ruled out in the case of a comprehensive revision; and, that the period of publicity should be determined by the Diet at the time of the initiation of the amendment based on the content of the proposed amendment.

>> At the present juncture, it appears that views differ substantially on the following points and that further discussion is necessary: (a) scope of voter eligibility; (b) restrictions on campaigning activities in national referendums; (c) the definition of "majority." However, I believe consensus is possible on these points through earnest discussion.

>> Regarding the scope of voter eligibility, I believe that the same scope as applies in government elections can be adopted. However, views were expressed in support of maximizing the scope of eligibility. This point will have to be further examined in the future.

>> Regarding restrictions on campaigning in national referendums, I am not opposed to prohibiting campaigning activities by employees and other members of election management boards, and making interference in voting a punishable offense. Aside from prohibition of opinion polls, prohibitions on bribery and promises of rewards should be adopted as minimum restrictions. It was argued that such provisions may come to be used to control the expression of political views in local pubs, but there is no fear of this; crimes related to bribery and promises of rewards can be readily identified on the basis of their relation to actual voting behavior.

>> Regarding the definition of "majority," no one advocated the use of the total number of eligible voters as the denominator. A difference of opinion does exist on whether the denominator should be the total number of votes cast including invalid votes, or whether it should be the total number of valid votes cast, which excludes invalid votes.

>> Regarding methods of publicity, including publicity by the government, this is an issue that requires further examination.


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

>> Such matters as a national referendum system for constitutional amendment, the Imperial Household system, the family system, and bio-ethics are matters of extremely serious public concern. The introduction of a national referendum system in a broad sense should be considered as a means to supplementing the indirect democratic process.

>> Regarding the constitutional amendment process, in addition to considering the structure of a national referendum system, thought should also be given to the provisions of Article 96 itself. In particular, is a two-thirds majority of both Houses necessary for initiating amendments of each and every provision of the Constitution? Granted that a two-thirds majority is probably necessary for the amendment of the three core principles, thought should be given to the possibility of easing the requirements for the amendment of provisions pertaining to the organs of government.

>> National referendums should not be held simultaneously with government elections. The provisions of Article 96, Paragraph 1, which allow for simultaneous implementation, should be amended.

>> Regarding the scope of eligible voters, the minimum age should be set at 18 for both national referendums and government elections. Given that there is an essential difference between national referendums and government elections, people whose civil rights have been suspended for violation of election laws should be made eligible to vote in national referendums.

>> Regarding the scope of eligible voters, one option would be to extend the scope to include all persons who have completed compulsory education. For this purpose, it will be necessary to upgrade education concerning the Constitution.

>> In certain countries, members of the royal family are eligible to vote. Regarding Japan, thought should be given to the voting rights of the Emperor and members of the Imperial Family.


AKAMATSU Masao (New Komeito)

>> In the question-and-answer session this morning, the informants as well as many of the members expressed views favoring separate voting on individual questions. Partial revision based on an "adding to the Constitution" approach would not face this problem, but voting separately on individual questions would involve complex technical problems if a comprehensive revision of the Constitution were to be attempted. It will be necessary to work out the details of these technical problems.

>> I believe that proposals concerning the revision of the constitutional amendment requirements stipulated in Article 96 can be divided into the following categories. (a) Adjust the ratification requirements based on the size of the majority supporting a proposed amendment in the Diet. That is, if only simple majorities are obtained in both Houses, the initiative would require approval in a national referendum. On the other hand, if a two-thirds majority is obtained in both Houses, a national referendum would not be required. (b) Adjust the ratification requirements based on the content of the proposed amendment. That is, amendments pertaining to the organs of government would require a two-thirds majority in both Houses but would not require further approval by national referendum. Amendments pertaining to the rights and obligations of the people and to the principle of pacifism would require a two-thirds majority in both Houses as well as approval by national referendum.

>> It cannot be said that we have reached a national consensus on the issue of constitutional amendment itself. Should we go for a comprehensive revision or a partial revision? Should we opt for adding to the Constitution or avoiding any form of amendment? I feel there is a need to undertake a national referendum on the issue of constitutional revision itself.


KASAI Akira (Japanese Communist Party)

>> The significance of the two-thirds special majority required in both Houses to initiate constitutional amendment derives from the need to anchor and stabilize the Constitution. The easing of amendment requirements contained in the draft proposal of the Liberal Democratic Party signifies a retreat from constitutionalism.

>> The significance of the requirement of ratification by a majority of the people is to supplement the power of constitutional enactment that rests with the people in whom sovereignty is vested. What we see today is the Diet pressing the people to go along with constitutional revision, whereas the public itself has certainly not come forward demanding constitutional revision. This approach to constitutional revision is totally at odds with the position taken in the Constitution and runs the risk of changing into a plebiscite system.

>> It is argued that a national referendum system is the embodiment of the principle of popular sovereignty. On the other hand, there is talk of introducing penalties to enforce restrictions on media reporting and campaigning activities in national referendums. This is none other than an attempt to restrict the exercise of sovereignty.

>> The following matters point to the fact that the enactment of a national referendum law for constitutional amendment is an inseparable and integral part of the intent to revise the Constitution and Article 9: (a) the position has been taken that the decision on whether referendum balloting should be on individual questions or on a unified package of questions can be postponed until specific proposals for constitutional revision have been finalized; (b) history records that the government gave up its plan to submit to the Diet a referendum bill prepared by the Internal Affairs Agency because it feared that this action would be misinterpreted to represent the government's intent to revise the Constitution; (c) former Prime Minister MIYAZAWA stated that a national referendum system was not created during the 50 years of the postwar period because the development of such a system would inevitably give rise to discussions of constitutional amendment and the problem of Article 9. The enactment of a national referendum law for constitutional amendment should not be undertaken now because it will project an image of Japan to Asia and to the world that we are once again becoming a nation that will take up arms in the world.


TSUJIMOTO Kiyomi (Social Democratic Party)

>> A statement has been made that, on one hand, advocates that procedural legislation can be discussed and enacted separately from any discussions of specific constitutional amendments, while on the other hand, states that a decision on whether referendum balloting should be on individual questions or on a unified package of questions cannot be made at the present stage because the decision will depend on the content of the actual amendment that is proposed. Such a statement confesses to the fact that it is well nigh impossible to separate the discussions of procedural legislation from discussions of specific amendments.

>> The issue of voting on individual questions as opposed to a unified package of questions is what generates the greatest doubt and suspicion in the minds of the people. As this constitutes a "core" issue, it is impossible to put this issue aside and to proceed with our discussions.

>> It is argued that the decision on voting on individual questions versus a unified package of questions should be made when a specific amendment is initiated. I fear this argument veils the political intent to obtain the necessary majority by lumping together into one package the amendment of Article 9, which faces broad opposition, and other amendments that are more easily supported by the people. Suppose voters are saying, "We favor the inclusion of environmental rights in the Constitution but oppose the amendment of Article 9." The public remains suspicious as to whether the referendum system to be created will faithfully reflect these sentiments. Awareness of this suspicion should remain firmly in our minds as this Committee proceeds with its discussions.


TAKI Makoto (People's New Party)

>> Regarding voter eligibility, let us avoid the time-consuming process of discussing the lowering of the minimum voting age in government elections to 18. Instead we should accept the current age requirement as a given. To argue for lowering the voting age on the basis of the September 14, 2005 Supreme Court ruling on the right to vote of citizens residing aboard will only confuse our discussions.

>> If the public in fact harbors those suspicions described by Ms. TSUJIMOTO concerning voting on individual questions versus a unified package of questions, the following summary standards should be included in the national referendum law: (a) all articles and provisions pertaining to a single issue will be voted on as a unified package; (b) a comprehensive revision will be voted on as a unified package because of the difficulties posed by voting separately on individual questions. I believe that establishing prior standards will allow us to avoid legal battles that may be fought to nullify the outcome of referendums.

>> It has been proposed that nullification suits should be handled exclusively by the Tokyo High Court. Considering its already heavy load, this may cause dysfunction in the Tokyo High Court. I believe suits should be handled by high courts with jurisdiction over the place of residence of the plaintiffs.


Comments after the first round

IWAKUNI Tetsundo (Democratic Party of Japan and Club of Independents)

>> The present Constitution was enacted in the absence of popular sovereignty. It was only given the mark of approval after the fact and merely through the inclusion of a single phrase in the Preamble that reads, "We, the Japanese people…do proclaim that sovereign power resides with the people and do firmly establish this Constitution." The present Constitution has only "ex-post approval," and Japan has allowed the legitimacy of its Constitution to remain nebulous. As such, Japan is more accurately described as a "nation under the rule of neglect" rather than as a "nation under the rule of law."

>> The first national referendum should address the following fundamental question. Should Japan immediately rectify its posture of neglect of the Constitution and revise the present Constitution, or should Japan re-affirm the present Constitution? This is a necessary exercise for pressing the reset button in our minds and our legislative processes so that we can squarely face the suspicions that surround the birth of our Constitution.


FUNADA Hajime (Liberal Democratic Party)

>> Prof. TAKAMI stated that an "essential difference" exists between the right to vote, which is derived from the principle of popular sovereignty, and the right to participate in national referendums, which is directly linked to popular sovereignty. I found this explanation to be very edifying. Taking a closer look at this "essential difference" leads me to the following conclusions: (a) national referendums should be conducted separately from government elections; (b) regarding the scope of eligible voters, from the perspective of giving the right to participate in referendums to as many people as possible, the minimum voting age should be set at 18, and consideration should also be given to enfranchising persons whose civil rights have been suspended for minor infractions of election laws (however, the voting rights of convicted criminals serving penal sentences and persons who have undermined the justice of the national referendum in question should be considered separately); (c) campaigning activities in national referendums should be subject to lower restrictions than those contained in the Public Offices Election Law; public servants should be allowed to express their views in their capacity as individual citizens, and foreign nationals should be allowed to express their views in their personal capacity; (d) further thought should be given to the question of whether a ban on the announcement of the results of opinion polls is really necessary.


HAYAKAWA Chuko (Liberal Democratic Party)

>> The Constitution does not contain explicit provisions concerning eligibility in voting. The very fact that this matter is being discussed confirms the imperfection of Article 96. Judging from the tone of the provisions of Article 96, Paragraph 1, it can be conjectured that the intent of the framers was to apply the same rules of eligibility as in government elections. The minimum voting age may very well be lowered to 18 in the future, but such an action should be predicated on thorough discussion and examination. For the present time, I think it would just be more convenient to adopt the same scope of eligibility as in government elections.

>> Regarding the exercise of voting rights by citizens living overseas, careful thought should be given to whether the current voter registration system should be left as it presently stands.

>> It cannot be denied that the formulation process of the present Constitution was "flawed." But over the 60 years of the postwar period, it can be said that the present Constitution has taken firm root among the people and the public has become "used" to it. However, the Constitution has yet to gain legitimacy.

>> The first national referendum that will be conducted will provide the first opportunity in the postwar period to engage in creating our own constitution. From this perspective, I believe it would be justified for the first referendum to feature voting on a unified package representing a comprehensive revision of the Constitution. In referendums held thereafter, the public would be presented choices on specific amendments.


HANASHI Yasuhiro (Liberal Democratic Party)

>> In the questions posed to our informants, there was some discussion that certain parts of the Constitution of Japan lack legitimacy. From this perspective also, I believe it is very important to go forward on specific constitutional amendments and for the people to experience a national referendum. Apart from what the outcome of the referendum may be, this process would contribute to the recovery of the legitimacy of the Constitution.

>> Our discussions of the design of the national referendum system should not be related to the amendment of Article 96. At the present stage, what we must do is to consider the technical and procedural issues that pertain to developing a national referendum system.

>> To ensure fairness in the national referendum system, in addition to adopting restrictions on campaigning activities, it is important to design the system to ensure opportunities for rebuttal and recourse in case of false reporting.

>> In addition to considering the restrictions to be placed on national referendum campaign activities, due thought must also be given to the question of how freedom of campaigning can be ensured.

>> Regarding participation of foreign nationals in referendum campaign activities, some restrictions could be placed on contributions and material assistance from foreign funds and sources. However, we should think twice about extending such restrictions to the simple expression of views by foreign nationals.


OGAWA Junya (Democratic Party of Japan and Club of Independents)

>> Prof. TAKAHASHI draws the following two points from his designated reading. First, procedural laws for constitutional amendment should be prepared in a calm and thoughtful setting that is unaffected by the pressures of urgency. Second, the reasons are explained why the draft bill prepared by the Internal Affairs Agency between 1951 and 1953 was not approved by the Cabinet. The only way to bridge these two realities is to enact a national referendum law while the specific contents of constitutional amendment are being discussed.

>> Prof. TAKAMI stated that an essential difference exists between the right to vote, which is ensured as a right under the principle of popular sovereignty, and the right to participate in national referendums, which is directly linked to popular sovereignty. If such a difference does exist, then there is no need to consider the provisions of the Civil Code concerning the age of majority and the provisions of the Public Offices Election Law concerning the minimum voting age. However, these provisions have been taken into consideration, which implies to me that no essential difference exists between the two. Therefore, the minimum age of participation in national referendums should be set at 18 as a step toward lowering the age of majority and the voting age.

>> Refuting the legitimacy of the Constitution of Japan may very well lead to refuting Japan's 58 years of postwar history. I believe the Japanese people are being asked to accept the weight of history.


SHIBAYAMA Masahiko (Liberal Democratic Party)

>> There is no need to submit matters not requiring amendment to national referendums just for the purpose of eradicating doubts concerning legitimacy. At the present time, only amendments of high urgency pertaining to specific articles and provisions should be submitted to a national referendum.

>> A minimum age for participation in national referendums could be established separately from the voting age. However, as a matter of legislative policy, it is worth considering the option of lowering the voting age to 18 to match the participatory age.

>> Suppose the mass media make false reports knowing full well that their reports contain falsehoods. This is a case where some form of restriction is unavoidable. However, a warning issued by a disinterested third-party organization should precede any action. The right of rebuttal must be considered very carefully because it can infringe upon the freedom of the press. Restrictions should also be applied to prevent the government from using public funds to produce pamphlets and materials that knowingly contain false information.

>> Foreign nationals should be allowed to participate in campaigning activities from the perspective of ensuring that the public is exposed to a wide range of views.

>> Regarding the definition of "majority," if voting is to be on individual questions, the calculation should be based on the total number of ballots cast in order to reduce the administrative burden.

>> Legal action for nullification of referendums should be filed with the high court with jurisdiction over the place of residence of the plaintiff. Rulings should not be enforceable retroactively.


ITO Kosuke (Liberal Democratic Party)

>> There is a global trend toward lowering the age of "minors" and the age of criminal accountability. For this reason also, the voting age in referendums should be set at 18.

>> To ensure fair discussion, the same restrictions as contained in the Public Offices Election Law should be adopted concerning false reporting and abuse of the status of public servants and educators.


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

>> The bill concerning the national referendum system for constitutional amendment should be enacted as soon as possible.

>> The minimum voting age should be set at 18. At the same time, we should re-examine whether age 20 is suitable as the age of majority.

>> Regarding restrictions on mass media, the same level of restrictions that are stipulated in the Public Offices Election Law would be acceptable.

>> Regarding voting separately on individual questions versus voting on a unified package, the form of ballot can be decided based on the content of the proposed amendment on a case-by-case basis.

>> Not all people have access to the Internet, and restrictions concerning the Internet are necessary.

>> The Danish case presents an interesting example of the treatment of "majority." That is, a referendum only becomes effective with the participation of 40 percent or more of the electorate, and a proposal is carried with the support of 50 percent or more of the ballots cast. This is a realistic arrangement.


YOSHIDA Rokuzaemon (Liberal Democratic Party)

>> It has been commented that the recent election of the House of Representatives was very much like a national referendum. During the campaign, I was impressed to see young people debating postal privatization. Now I feel very strongly that the minimum age of participation in national referendums for constitutional amendment should be set at 18 to allow young people to actively participate in discussions of constitutional amendment.


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

>> I am undecided on the subject of suits for nullification. But one way to cope with an excessive number of suits might be to try the cases after first allowing the outcome of the referendum to come into effect, and, depending on the results of the examination, effectuation can be later suspended. In the case of suits seeking judicial judgments involving serious procedural defects, a temporary injunction could be used to delay the coming into force for a certain period of time. If the courts authorize a temporary injunction, then effectuation would be temporarily suspended pending the outcome of the suit.

>> I feel that we have been discussing restrictions on campaigning without taking time to clarify "campaign activities in national referendums" and "freedom of speech concerning the Constitution." To begin with, it is impossible to clearly distinguish between the two and to apply restrictions only on certain types of campaign activities. It is necessary to predicate our discussions on the understanding that, as advocated by the Democratic Party of Japan, restrictions can only be applied to a very limited range of cases.

HIRAOKA Hideo (Democratic Party of Japan and Club of Independents)

>> Reference has been made to the legitimacy of the Constitution of Japan. Article 96, Paragraph 2 stipulates that amendments when ratified shall be promulgated "as an integral part of this Constitution." In so saying, the Constitution affirms that constitutional amendments are subject to certain limits. Total or comprehensive revision of the Constitution exceeds these limits and may rob the revised Constitution of its legitimacy. I want to point out that preservation of legitimacy in case of total revision may logically require the prior revision of Article 96, Paragraph 2.

>> In discussing suits for nullification of the outcome of national referendums, it is necessary to clarify what constitutes grounds for nullification.


IWAKUNI Tetsundo (Democratic Party of Japan and Club of Independents)

>> Japan has many outstanding young people. But I feel that they lag behind their European and American counterparts in terms of social maturity and level of interest and understanding of politics. I believe the time is not yet ripe for setting the minimum age of referendum participation at 18.

>> The U.S. Junior Chamber of Commerce organizes discussions for high school students on the "relation between President and Congress" to develop a sense of responsibility in the younger generation. A certain social studies teacher in Nagano Prefecture assigns the students to rewrite the Preamble of the Constitution in their own words to prod them to think about the ideal state of the nation. This kind of education can raise the level of interest in politics among our youth.

>> Constitutional amendment serves as an opportunity for the people to reaffirm what is good in the articles and provisions that are not being amended. Constitutional amendment also gives the people a sense that they have participated in creating and enacting a new constitution.


MATSUNO Hirokazu (Liberal Democratic Party)

>> A national referendum for constitutional amendment represents a justified exercise of the sovereign power that resides in the people. Therefore, it is important for the government to enact a procedural law and to provide for the exercise of this power. Failure to develop the system is tantamount to "legislative nonfeasance" and is one of the factors undermining public confidence in the Constitution.

>> Regarding the scope of eligible voters, the minimum voting age should be the same as in government elections for the following reason. Elections that determine the Members of the Diet who are empowered to initiate constitutional amendments are qualitatively the same as national referendums for constitutional amendment insofar as both involve participation in the process of constitutional amendment. When considering the voting age, it is necessary to discuss the social obligations and duties that devolve upon a person who has reached the age of majority.


KASAI Akira (Japanese Communist Party)

>> Members of the Diet bear the obligation to respect and uphold the Constitution. I am shocked to see that some members entertain doubts concerning the legitimacy of the present Constitution.

>> The legitimacy of the present Constitution derives from the Preamble and is secured therein.

>> Public opinion polls clearly show that the call for constitutional amendment has not been raised by the people in whom sovereignty resides. The people have made a clear choice to live with the present Constitution.

>> Nearly 60 years have passed since the promulgation of the Constitution. The problems that have arisen are not due to problems that exist in the Constitution. Rather, the problems are rooted in the failure to fully enforce the various principles of the Constitution. Therefore, the Diet must perform its obligation of bringing contemporary reality closer into line with the Constitution.


HAYASHI Jun (Liberal Democratic Party)

>> Discussions of specific constitutional amendments should be conducted separately from discussions concerning the procedures of constitutional amendment.

>> It is the responsibility of Members of the Diet to protect the life and property of the people. Amendment of the Constitution in response to the demands of the people or in response to the conditions of the times represents the first and foremost means to fulfilling this responsibility. Therefore, the procedural law for constitutional amendment should be enacted as soon as possible.

>> The scope of eligible voters should be the same as in government elections. This matter should be discussed further.

>> In the case of elections, voters may say, "There is no one to whom I want to give my vote," and to thereby choose to express themselves through abstention. We need to discuss how abstention should be treated in national referendums for constitutional amendment.

>> Campaigning in national referendums should be basically free and unfettered by any serious restrictions.

>> In light of the importance of constitutional amendment, sufficient time should be given to the period of publicity. It is the responsibility of members of Diet to generate popular discussion.


MIHARA Asahiko (Liberal Democratic Party)

>> Campaign activities in national referendums should be unfettered because the public should welcome, for example, an active debate between newspapers favoring constitutional amendment and those opposing it. The wisdom of the people should be brought together, and methods and approaches should be devised to ensure fairness. Having done that, we should create an environment that is conducive to the exchange of a great variety of opinions.

>> Because we have no previous experience with national referendums, there is a tendency to view the creation of a national referendum system with apprehension. To remove this apprehension, perhaps we can first conduct a national referendum on an issue on which public opinion is split, such as brain death. I believe it is worth considering such an undertaking to provide us with a touchstone for future referendums on constitutional amendment.


FUNADA Hajime (Liberal Democratic Party)

(In response to comments made by Mr. FURUKAWA)
>> National referendums for constitutional amendment should be discussed separately from national referendums of a general nature.

(In response to comments made by Mr. IWAKUNI)
>> Lowering the voting age in national referendums to 18 may serve to promote education in civics and politics.

(In response to comments made by Mr. EDANO)
>> It is worth considering the following type of system. The outcome of a national referendum would not go into force for a given period of time. During this period, the referendum would be investigated for any major defect. The constitutional amendment would go into force if no major defect had been found.

(Comments)
>> Regarding restrictions on campaigning activities in national referendums, it goes without saying that individuals will have the freedom to express their opinions. On the other hand, certain restrictions should apply to organized activities. Considering the tremendous influence of the mass media, restrictions will also be necessary here to ensure fairness. We should deliberate upon this issue by dividing our discussions into these separate cases.


IWAKUNI Tetsundo (Democratic Party of Japan and Club of Independents)

(In response to comments made by Mr. KASAI)
>> The results of public opinion polls on constitutional amendment are easily affected by how the question is structured. Poll results would be very different if the respondents were first informed that there are constitutional amendments that are designed to protect the peace constitution.


KITAGAMI Keiro (Democratic Party of Japan and Club of Independents)

>> In addition to guarantees of human rights and provisions restricting state powers, the Constitution should set forth the vision and ideals of the nation as founded on our history and traditions.

>> The present Constitution contains expressions and phraseology that are grammatically incorrect. We need to create a Constitution that the people will find easy to understand and familiar. From this perspective, the Constitution should be revised in its entirety to render it into correct Japanese, even if there are no provisions that pose a problem.


KASAI Akira (Japanese Communist Party)

(In response to comments made by Mr. IWAKUNI)
>> The public opinion poll asked an extremely simple and clear question: "Are you in favor of or opposed to amending Article 9?" Probably an even larger number of people would have expressed opposition to the amendment of Article 9 if the question had been posed as follows: "Should Article 9, Paragraph 2 be amended to include explicit provisions on a self-defense army to allow Japan to go to war overseas?" This public opinion poll reflects the thinking of the various generations that make up our country, and its results must be taken very seriously.


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

(In response to comments made by Mr. KASAI)
>> Maybe a decade ago it would have been different, but today it is quite meaningless to ask, "Should Article 9 be amended?" without proposing some specific ideas for amendment. If we were to adopt the position taken by the Japanese Communist Party, the proper thing to do would be to advocate an amendment stating that Japan "will not exercise the right of self-defense." The simplistic question "Are you in favor or opposed to amending Article 9?" sounds very anachronistic.

(In response to comments made by Mr. FUNADA)

>> For instance, the newspapers and other organs issued by political parties tend to be quite political in their content. If restrictions are to be placed on the mass media, it will prove extremely difficult to even define what is meant by the mass media.


HIRAOKA Hideo (Democratic Party of Japan and Club of Independents)

>> There is the issue of "What is a constitution?" We certainly should not take the approach of bringing the Constitution into line with what we find to be contemporary reality. Instead, our highest ideals should be presented in the Constitution.

>> To that end, we should start by enacting a basic law on security in order to establish public consensus on how far we can or cannot go under the present Constitution.


KASAI Akira (Japanese Communist Party)

(In response to comments made by Mr. EDANO)

>> The Liberal Democratic Party advocates replacing the provisions for non-maintenance of war potential and non-recognition of the right of belligerency in Article 9, Paragraph 2 with explicit provisions for a self-defense army. This will take away the restraining function performed by these provisions and will lead to the abandonment of Article 9 as a whole, including the renunciation of war stipulated in Article 9, Paragraph 1. The significance of Article 9 has only been magnified by contemporary developments.


TSUJIMOTO Kiyomi (Social Democratic Party)

>> Public opinion poll results must not be taken simplistically. The results tell a story of the views and perspectives of the people of Japan. On one hand, people know the importance of Article 9 and are acutely aware of the dangers of constitutional amendment as demonstrated by our past history. On the other hand, the people take very seriously the role that Japan should play as a humanitarian nation.


HAYAKAWA Chuko (Liberal Democratic Party)

>> As we are engaged in free discussion, it is fine that various views are being expressed concerning Article 9 and other matters. However, we must fundamentally reaffirm that this Committee is mandated to build on the conclusions and summarizations reached by the Research Commission on the Constitution and to go forward in our deliberations from there.

>> Campaigning in national referendums should basically be free and unfettered. However, from the perspective of popular sovereignty, we must not allow a situation in which the outcome of the referendum is affected by false or mistaken reporting. While restorative measures should be put in place, we must not immediately go to imposing penalties.

>> We must draft a revision that can obtain a two-thirds majority in both Houses. Parallel to this, or prior to this, we must create a national referendum system. Enactment of this procedural law is inseparably linked to constitutional amendment.


OSAKA Seiji (Democratic Party of Japan and Club of Independents)

>> We do not want a situation in which Diet deliberations proceed ahead while the consciousness of the people in whom sovereign power resides is left lagging behind. As Members of the Diet, we must not forget the perspective of the people, and we must consider how the deliberations of the Diet can be conveyed to the people.


YASUOKA Okiharu (Liberal Democratic Party)

(In response to comments made by Mr. KASAI)

>> When the adoption of the present Constitution was being voted on, Diet member NOSAKA of the Japanese Communist Party gave a historic speech in opposition to the Constitution arguing that the core of the Constitution required revision. It is my understanding that today's Japanese Communist Party is linked in an unbroken chain to the party of those days. I would like to know the views of the Japanese Communist Party concerning the core of the Constitution.


KASAI Akira (Japanese Communist Party)

(In response to comments made by Mr. YASUOKA)

>> Our position today is to protect the Constitution. We clearly oppose the enactment of a national referendum law intended for the amendment of Article 9.

>> After the war, there was much discussion on what type of constitution Japan should adopt and a variety of opinions were expressed. But those were views that were held at that time, and obviously there is no reason for us to be bound by them. Regarding the present Constitution, we are fully aware of the importance of its promulgation and we are committed to protecting and preserving it. The position that we espouse is that the present Constitution must be applied and implemented in its entirety. There are no grounds here for any misunderstanding.