Fifth Meeting

Thursday, October 27, 2005

Meeting Agenda

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

1. After statements were heard from Mr. FUKUI Kosuke concerning the above matters, questions were put to him.

2. Comments were made by members representing each political party and group.

3. A brief speech was made by the Chairman.


Informant

Members who put questions to Mr. FUKUI

Members commenting as representatives of their parties

Main points of Mr. FUKUI's statement

1. Characteristics and management guidelines for Japan's national referendum system for constitutional amendment

>> National referenda can be divided into two categories: "mandatory referenda" undertaken in the absence of a specific initiative, and "discretionary referenda" undertaken in response to a specific initiative. The second category can be further divided into the following: (a) initiatives initiated by the public (U.S. states, Switzerland, Italy); (b) initiatives initiated by the president (France); and (c) initiatives initiated by parliament (U.K., Denmark).

>> Japan's national referendum system can be termed a "referendum initiated by parliamentary majority" because the right to initiate an amendment belongs to the Diet majority. The Japanese system assumes that the public will be able to express its will at three successive stages: (a) in a general election fought over the issue of constitutional amendment; (b) in the initiation of an amendment through concurring votes in both Houses of the Diet; and (c) in a national referendum. If stage (a) is missing, an initiative may be rejected in the national referendum in stage (c).

>> Initiation of an amendment requires a concurring vote of two-thirds or more in both Houses of the Diet. This provision functions to protect the "minority" in the Diet. In this situation, a constitutional amendment may be initiated in the following two cases: (a) after the emergence of a "super majority party" capable of mustering a two-thirds majority in both Houses; and (b) after a consensus has been reached between the ruling and opposition parties. Case (a) does not reflect Japan's current reality. Hence, amendment of the constitution as supreme law will require the conditions of case (b) to be met. This means that a consensus will have to be reached within the Diet through a process of careful deliberation and discussion.

>> Japan faces two problems: expression of the popular will through elections is absent, and the country has never experienced a national referendum. Therefore, when an amendment is being drafted, an opportunity must be provided to the people for expression of their will. Furthermore, a very cautious approach should be taken in establishing and implementing procedures for national referenda.

>> The national referendum system faces the following four problems: (a) referendum results may not represent the will of the majority; (b) the rights of the minority may be violated; (c) the popular will may not be accurately expressed; and (d) voting may be linked directly to positions taken by popular politicians (leadership effect). National referendum systems of other countries go through four stages (drafting, initiation, campaigning, voting) that are designed to "prevent abuse" (filtering function). Japan should take these operational rules into consideration.

2. Problems related to the implementation of a national referendum for constitutional amendment

>> "Accurately reflecting the popular will" will be very important in drafting amendment proposals.

>> The composition of the ballot should be as follows. (a) If all of the human rights provisions of Chapter 3 are to be revised, deleted or added to under a single amendment proposal, ballots should be designed to allow for voting on individual questions as far as possible. (b) If a new system is to be introduced to the organs of state (obviously including modifications in related articles and provisions), voting should be on a unified package.

>> The single-subject rule of "one subject per initiative" is observed in the United States and elsewhere. The purpose of the single-subject rule is as follows: (a) to avoid initiatives that combine two unrelated issues; (b) to prevent logrolling (the trading of favors between Members); and (c) to restrain sudden and dramatic changes through constitutional amendment. It would be desirable to adopt such a provision when enacting a national referendum law in Japan. Such a provision will contribute to clearly reflecting the popular will and upholding the principle of popular sovereignty.

>> It is desirable to draft each initiative to cover a finely defined subject to ensure that the popular will can be accurately reflected in the referendum. However, examples of other countries show that the public experiences greater difficulty in gathering information and understanding the information when the number of initiatives exceeds a certain level and can lead to a decline of turnout ratios and increase in abstention. Keeping a balance is difficult.

>> There are two approaches to rectifying a violation of the single-subject rule prohibiting voting on a unified package. (a) An initiative may be subjected to prior review by the court (as in the case of U.S. states) or by a third party other than the courts (U.K.). It is particularly effective to establish a third-party institution with a consultative function, following the example of the latter case. (b) An initiative may be subjected to ex-post review. However, in the case of this approach, it will be difficult to remedy violations of the single-subject rule or other procedural errors that may occur.

>> Ample time should be given to publicity on the initiatives to be voted on and collection of information by the public. This means that a considerable period of time should be allowed between the launch of an initiative and voting. It should be noted that votes in opposition of an initiative generally tend to increase when more time is allowed before voting.

>> Generally speaking, it is believed that voting behavior in national and local referenda tends to favor "maintaining the status quo." In the United States, it is reported that negative campaigning is effective.

>> Conclusions: (a) The Constitution of Japan is a rigid constitution that requires a gradual approach to amendment. The same spirit should prevail in procedural and management matters. (b) The right to initiate an amendment resides with the Diet. Therefore, it is necessary to build a consensus through full and ample discussion, and to develop a system that will promote the participation of the people. (c) Because Japan has no previous experience with a national referendum, Japan should learn from the experience of other countries and should proceed cautiously to prevent abuse.


Main points of questions and comments to Mr. FUKUI

KATO Katsunobu (Liberal Democratic Party)

>> I believe legislation for a national referendum system for constitutional amendment should be enacted soon. What is your view on this point?

>> How have other countries dealt with the relationship between a national referendum system for constitutional amendment and general-purpose national referendum systems?

>> In order to put to rest the issue of the legitimacy of the present Constitution, some have argued that all articles, including those not being amended, should be put to the vote in a referendum. In such a case, would it still be desirable to vote on individual questions?

>> When a proposed constitutional amendment is being debated in the Diet, it will be necessary to develop a consensus among a number of parties. What measures should be adopted to prevent this process of consensus building from deteriorating into logrolling?

>> In Switzerland, I understand that a complete constitutional revision must be preceded by a national referendum asking whether or not the constitution should undergo complete revision. I would like to know the details of any such referendum that may have been conducted in the past.

>> In the United Kingdom, I understand that an initiative undergoes prior review by a third party. I would like to know the details of this system.

>> My position on voting on a unified package versus voting separately on individual issues is as follows. A decision should be made in light of the contents of the proposed amendment when an initiative is actually launched, and it is not necessary to stipulate this matter in the national referendum law. What is your view concerning this?

>> What restrictions on campaign activities have been adopted in other countries from the perspective of developing systems for the distribution of information that will enable the public to make appropriate decisions?

>> As the initiator of an amendment, the nature of the information provided by the Diet to the public would become an issue. Must the information be neutral, or would it be acceptable for this information to point in a certain direction?

>> From the perspective of enabling the people to make sound and sober judgments, some have argued that there should be no overlapping between the period of a national referendum for constitutional amendment and national elections. What is your view on this matter?


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

>> What is the understanding of the Japanese people regarding direct democracy?

>> I feel there is a considerable gap between the deliberations of the Diet and the awareness of the people concerning legislation for a national referendum system for constitutional amendment and other matters. What is your understanding of this situation?

>> For the sake of argument, let us assume that the outcome of a national referendum differs from the true will of the people. Can any countermeasures be taken in such a case?

>> I would like to hear your views on what measures (such as minimum voter turnout requirements) can be adopted to give legitimacy to the outcome of a referendum.

>> What should be the scope of voter eligibility? Some have proposed that voter eligibility should not be based on age but rather that the cut-off should be based on "school age." What is your view of this matter?

>> It was explained that turnout ratios decline when the number of initiatives being voted on increases. But given the broad range of issues on hand for constitutional amendment, I cannot help but doubt the efficacy of a national referendum held according to the single-subject rule. What is your view of this matter?

>> What methods can be used to encourage public discussion in the event of a national referendum? What methods are used in other countries?

>> What is your assessment of the maturity level of public debate concerning a national referendum system for constitutional amendment?


AKAMATSU Masao (New Komeito)

>> According to generally accepted theory, the present Constitution allows for the implementation of an advisory type of national referendum. What would be the role and significance of this type of referendum?

>> It was explained that Japan's national referendum system for constitutional amendment was characterized by the following three stages: (a) a general election focused on the issues of constitutional amendment; (b) initiation of an amendment through concurrence of the Diet; and, (c) voting in a national referendum. In my opinion, the first stage should consist of an advisory national referendum instead of a general election. What is your view of this matter?

>> I believe it is important to accurately reflect the views of the people in drafting a constitutional amendment. In your opinion, what opportunities can be provided to allow the people to express their views?

>> Japan has no previous experience with a national referendum. Hence, I believe it would be better to limit voting in a national referendum to a small number of questions. What is your view of this matter? What do you consider to be an appropriate length of time between the launch of an initiative and voting in a referendum? You have mentioned a "40 percent rule" for validating a referendum. What would you think of a "50 percent rule?"


KASAI Akira (Japanese Communist Party)

>> You have explained that the first stage in a national referendum for constitutional amendment would involve a general election focused on the issues of constitutional amendment. Where in the basic principles of the Constitution do you find a demand for such an election?

>> You have stated that the popular will should be expressed in a general election that is focused on the issues of constitutional amendment. However, I do not believe that Diet membership based on a single-seat constituency system is capable of representing the popular will.

>> Amendments are to be initiated by the Diet. However, under the current system of elections, Diet membership does not accurately reflect the popular will. It would be much the same if elections were conducted like a popularity poll. Given this situation, do you think it is actually possible to ensure that the popular will is appropriately reflected?

>> You pointed out that if a constitutional amendment were to be initiated, the expression of the popular will would be absent under the current form of election. In what sense would it be absent?

>> In the case of a general election in which issues pertaining to constitutional amendment do not occupy the highest priority, would it be acceptable to move forward on constitutional amendment based on the seats gained in this election?


TSUJIMOTO Kiyomi (Social Democratic Party)

>> In your view, what is the meaning of "majority?"

>> Regarding the abuse of the national referendum system, I would like to know about specific cases in which the human rights of the minority have been violated.

>> The outcome of a national referendum may be directly linked to the popularity of the prime minister or president. What measures have been adopted in the national referendum systems of other countries to avoid this type of situation?

>> You stated that when high volume television advertising is being used in a national referendum campaign, it is important to disclose information on such matters as who is paying for the ads. I would like to hear more on this matter. In such instances, are demands for disclosure made by citizens, or is there a system whereby relevant information is disclosed by an official agency?

>> In case of violations of rules through abuse of national referendums, what is your view on rectification by a third-party institution?


TAKI Makoto (People's New Party)

>> Britain has instituted very rigorous referendum requirements. That is, a referendum must be carried by a majority of participating voters, plus no less than 40 percent of all eligible voters (40 percent rule). Does the public become more involved in a national referendum, or is there some other general reason why a higher voter turnout can be expected in national referendums than in national elections?

>> In the British case, how is a decision made on what questions to submit to a national referendum? How are the questions drafted by parliament?

>> In British national elections, candidates obtain the voter registry from city office and proceed to canvas the voters by going from house to house. This is the basic method. In a national referendum, who does the campaigning?

>> In the British case, the campaign period between the launching of an initiative by parliament and voting is stipulated under a separate law. How much time does the law stipulate for campaigning? In the case of Japan, national referendum campaign periods of between 30 and 90 days have been suggested. Compared to this, would it be correct to say that the British system allows for a longer period of campaigning?

>> In the British case, I understand that citizens living abroad have the right to vote. How does this voting take place?


Main points of comments made by members representing each political party

AICHI Kazuo (Liberal Democratic Party)

>> As one involved in the establishment of the Research Commission on the Constitution, I am deeply moved to see that discussions have started in this Special Committee, and take this opportunity to express my appreciation and respect for the leadership of Chairman NAKAYAMA.

>> It is very important to rise above our party affiliations when we are discussing the Constitution. This spirit is very much in evidence in the free discussions engaged in by this Special Committee, and I believe it is very important to continue on this path.

>> If we ask whether true democracy has taken firm root in Japan, the answer must be that there remains much to be done. What we actually have is the continued rule of the bureaucracy masquerading as democracy. One of the reasons for this is to be found in the Constitution. For instance, consider the provisions of Article 86, which allows the Cabinet to monopolize all powers related to formulating the budget.

>> To overcome this situation and to move Japanese democracy one step forward, it is very important to enact a national referendum law for constitutional amendment.

>> Bills for the national referendum system should be submitted and sponsored by individual Members of the Diet. We should go one step further to ensure full and adequate debate. That is, instead of being submitted by the chairman, it would be desirable for various political parties to jointly sponsor the bill as legislation by Members.

>> The public is given its first opportunity to participate in the amendment process only after a constitutional amendment has been formally initiated and submitted to a referendum. This is too late in the process. The public must be given an opportunity to participate in an early as possible stage.

>> I sincerely hope that a national referendum law for constitutional amendment will be enacted as soon as possible and that it will be an another step toward the maturation of democracy in Japan.


SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)

>> I highly laud the discussions undertaken by the members during the current Diet session. I would like to express my respect to Chairman NAKAYAMA and others for leading these discussions from a multifaceted perspective.

>> The following matters were re-affirmed in the discussions of this Special Committee concerning the national referendum law for constitutional amendment stipulated under Article 96. This is not merely a procedural law. It is nothing less than a system that establishes how the people can exercise their sovereignty in determining a "vision for the nation" and that the role of Diet Members is merely to initiate amendments.

>> Regarding the participation of the people in the amendment process, I believe there is a very important issue to consider concerning "the right of the people to propose" constitutional amendments, which involves the exercise of their sovereignty. We have not yet examined the rules and regulations and methods for the submission of such proposals. Yet another matter that remains to be examined is whether the submission of an amendment proposal to both Houses of the Diet should be subject to the same rules and regulations as currently apply to the submission of an ordinary legislative bill.

>> It has frequently been said that failure to enact a national referendum law for constitutional amendment constitutes "legislative nonfeasance." While this argument may be made in the context of a political movement or campaign, it is meaningless to pursue this line of argument in the Diet.

>> The Constitution of Japan has arrived at its epochal sixtieth birthday. The time has now come to re-examine the constitutional system as the legal foundation of a "vision for the nation." Rapid progress is being made in globalization and information technologies, and these forces are changing the realities of the state and nation. These changes now make it necessary to sum up and to ascertain the will of the people concerning the form and status of sovereignty in a sovereign country. Legislation for a national referendum system should be understood to constitute a part of the ceaseless efforts to promote and to deepen popular sovereignty and to democratize democracy.

>> National referendums will give expression to the summing up of the popular will. Considering the temporal continuity and binding power of a written constitution, the scope of eligible voters should include the younger generations as much as possible. The Special Committee also arrived at the shared understanding that Japanese citizens residing abroad should be guaranteed an opportunity to vote.

>> Voting in a national referendum is definitely different from voting in elections to choose representatives in a representative system. In principle, freedom should be ensured in national referendum campaigning, and freedom of the press should be strongly ensured.

>> Regarding a national referendum law for constitutional amendment, the following issues remain to be discussed: (a) whether a single-subject rule should be adopted; (b) whether amendment initiation requirements should be modified according to the content of articles and provisions to be amended; (c) whether a super-majority rule should be applied to the revision of supplementary laws of the Constitution; and (d) whether laws should be enacted concerning a national referendum system for issues of particular importance.


AKAMATSU Masao (New Komeito)

>> I would like to express my deepest appreciation and respect for the leadership exercised by Chairman NAKAYAMA in this Special Committee.

>> It is unfortunate that there is a gap between the awareness of the Members of the Diet and the awareness of the public. As a step toward closing this gap, perhaps we can consider the option of televising the deliberations of this Special Committee.

>> Previously I proposed the following three-stage approach. The first stage would be the Research Commission on the Constitution; the second stage would entail forming a research commission for constitutional amendment; and the third stage would involve the actual tasks for amendment. After legislation has been enacted for a national referendum for constitutional amendment, an advisory type of national referendum should be undertaken in the second stage to ask the people whether constitutional amendment should be undertaken in the first place. This should be used as a vetting process for getting the following most fundamental questions out of the way. Should the entire Constitution be revised? Should amendments be added on to the Constitution? Or should the Constitution be amended in the first place? If this process is not undertaken, an alternative approach would be to adopt corresponding resolutions in the plenary session of the Diet.

>> I believe it is necessary to adopt the following arrangement to ensure that the popular will is reflected in the amendment process. When a research commission for constitutional amendment is established in the second stage, an ancillary organization should be formed for discussion and examination by experts and learned persons. Members of such a forum and the Diet must engage in exhaustive discussions concerning constitutional interpretations and the gap between the Constitution and present reality.

>> When an amendment is being initiated, we should start with an issue that can be covered by one or two questions.

>> The minimum voting age in a national referendum should be 18; or if possible, the cut-off should be set at graduation from high school.


KASAI Akira (Japanese Communist Party)

>> Enactment of legislation concerning a national referendum system for constitutional amendment is one with and inseparable from the intent to amend Article 9. Consider the issue of voting on individual questions versus voting on a unified package. The stated opinion that voting on a unified package is more desirable in case of a complete revision of the Constitution clearly shows that specific constitutional amendments have already been envisioned. Thus, it can be said that the discussions of this Special Committee have proceeded as part and parcel of a process aimed at drafting constitutional amendments. Such a direction runs counter to the global tide of hoping and striving for peace in the 21st century and holding Article 9 in high esteem.

>> The criticism was voiced that those who reject the existence of the Self-Defense Forces should present an amendment to Article 9 embodying such a position. We cannot join in this line of thinking because it presupposes the constitutionality of the Self-Defense Forces. Similarly, we cannot accept the argument that the Self-Defense Forces can be placed under the rule of law by so stipulating in the Constitution. When we live under a government that neglects the Constitution, there is no guarantee that the Self-Defense Forces will actually be placed under the rule of law. The problem of the Self-Defense Forces should not be resolved through constitutional amendment. The problem should be resolved in the political arena and through a popular movement.

>> The following fallacious arguments have been made concerning the enactment of a national referendum law for constitutional amendment: (a) Failure to enact such a law constitutes legislative nonfeasance. This is a totally illogical argument that has been employed for political purposes. (b) Enactment of such a law will provide the concrete means for the expression of popular sovereignty. How can you make this argument and in the next moment consider the introduction of restrictions and rigorous penalties on the media, which will result in real suppression of popular sovereignty? Judging from these arguments, there is absolutely nothing convincing in the position that a national referendum law for constitutional amendment should be enacted now.


TSUJIMOTO Kiyomi (Social Democratic Party)

>> The matter on hand concerns the determination of some very important procedures related to the basic law of the land. Therefore, our discussions must cover all aspects and must proceed with due caution. I believe this represents a common understanding shared by many members of this Special Committee.

>> The Constitution is the supreme law and has been designed to prevent the tyranny of the majority. The legitimacy of the Constitution must be protected from all forms of doubt and suspicion. For this purpose, we must design a national referendum law that all people will acknowledge as fair and equitable.

>> If voter turnout is low, the legitimacy of the outcome of a national referendum will be held in doubt regardless of whether the amendment is ratified or not. To design a system that all people will find acceptable, we must include some provisions concerning a minimum turnout rate. The same reasoning applies to the definition of "majority." One of the informants addressing this Special Committee during the current Diet session argued that "majority" should be understood to be the majority of all eligible voters. This is a view that is well worth considering.

>> No matter what form the Constitution may take, all Members of the Diet are obligated to respect and uphold the Constitution. I doubt that persons who do not take the present Constitution seriously will ever take a new Constitution seriously. Statements deviating from the Constitution's intent of civilian control and such attitudes as continuing the constitutionally suspect behavior of visiting Yasukuni Shrine are inappropriate in our discussions of the Constitution.


TAKI Makoto (People's New Party)

>> The bill concerning the national referendum system is an extremely important bill intended to determine how popular sovereignty is to be realized. Therefore, we should consider whether such a bill should be subject to the same procedural rules that apply to ordinary legislation.

>> The will of the people should also be reflected in the procedural law for constitutional amendment. The Diet should provide forums in which the people take part in discussion. There is also a need to ensure public understanding that enactment of a national referendum law is not directly linked to the amendment of Article 9.

>> Regarding ratification of an amendment in a national referendum, Article 96 explicitly states that ratification requires the affirmative vote of a majority. Should additional requirements be adopted, such as the "40 percent rule" that Mr. FUKUI explained applies in Britain's advisory type referendums? While there are arguments both for and against such a measure, I believe it is necessary for us to consider it.

>> When the Constitution is being amended, it will be very important to deepen the understanding of the public and to arouse the popular will. Otherwise, even if an amendment is ratified, we will be left with the lingering question of whether the amendment has truly won the confidence and support of the people. In light of this matter, the national referendum system should be designed from the perspective of ensuring that the popular will is fully reflected.

>> We need to consult further on whether or not the same procedural rules that apply in national elections should apply to the national referendum system. Specific details that must be looked into include the minimum voting age, types of campaigning activities in a national referendum, and the duration of the campaign. The following matters will also have to be examined from a practical perspective. (a) If the minimum voting age is set at 18, how will the referendum system be managed in relation to the voting age in elections? (b) Is a publicity period of 30 to 90 days appropriate?