Seventh Meeting

Tuesday, December 5, 2006

Meeting Agenda

Bill for Law Concerning Procedures for Amendment of the Constitution of Japan (submitted by Mr. YASUOKA Okiharu and four others: 164th Session of the Diet, 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 (submitted by Mr. EDANO Yukio and three others: 164th Session of the Diet, House of Representatives Bill No. 31)

Mr. KONDO Motohiko (Liberal Democratic Party), Chairman of the Subcommittee for Considering Bills on Procedures for Amending the Constitution of Japan, reported on the proceedings and outline of the discussion of the Subcommittee concerning the two abovementioned bills.(Click here)  This was followed by supplementary comments made by members of the Special Committee who are members of the Subcommittee.

Subcommittee members who made supplementary comments:

Report of the Chairman of the Subcommittee

KONDO Motohiko (Liberal Democratic Party)

I would like to report on the proceedings of the Subcommittee for Considering Bills on Procedures for Amending the Constitution of Japan and to present an outline of our discussions.

The Subcommittee met on November 30 and conducted free discussions on the Bill for Law Concerning Procedures for Amendment of the Constitution of Japan, and the Bill for Law Concerning Initiation Procedures and National Referendums for Amendment of the Constitution of Japan and Other Important Matters of State, with special reference to the following matters: matters to be submitted to national referendums; scope of eligible voters; methods of indicating approval or disapproval on ballots; definition of majority; the publicity period; and suits filed for the nullification of national referendum results.

I would like to present the main points of our discussion so that the contents of discussions may be shared with the Special Committee for Research on the Constitution of Japan. First, regarding the method of indicating approval or disapproval on ballots and the definition of "majority", the ruling parties are proposing the following. Approval is to be indicated by drawing a circle, and disapproval by drawing an X on the ballot. A referendum is to be deemed ratified by the people with a majority of valid ballots indicating approval. The Democratic Party of Japan is proposing the following. Approval is to be indicated by drawing a circle, and disapproval by casting a blank ballot. A referendum is to be deemed ratified by the people with a majority of all ballots cast indicating approval, while blank ballots are to be included in the total number of ballots cast on which the determination of ratification is based.

Presenters of the bill submitted by the ruling parties and presenters of the bill submitted by the Democratic Party of Japan both stated that they were prepared to consider other methods that would more accurately reflect the will of the people as compared with the methods stipulated in the bills currently under consideration. In this context, the presenters of the bill submitted by the ruling parties tendered the following suggestions. [1] Instead of indicating approval or disapproval by drawing either a circle or an X, ballots would bear the words "Approve" and "Disapprove," and voters would indicate their choice by circling the appropriate word. To reflect the diversity of views among the people, due flexibility would be exercised in allowing voters to cross out, with an X or a double line, either of the words "Approve" or "Disapprove." [2] In the above case, blank ballots would not be counted in the determination of ratification. The view was expressed that adopting these methods could substantially reduce the ratio of blank ballots cast.

The presenters of the bill submitted by the Democratic Party of Japan stated that the above suggestions made by the presenters of the ruling parties' bill were worthy of consideration and responded as follows. Unlike in the case of public elections, there is no compelling reason to strictly eliminate ballots that bear unrelated markings. A method should be adopted that minimizes the voiding of ballots as long as the voter's approval or disapproval can be clearly confirmed from the ballot.

An issue that pertains to the foregoing matter is the question of a minimum voter turnout requirement. The opinion was also expressed that "majority" in Article 96 of the Constitution refers to the majority of the total number of eligible voters and, in this context, views were expressed in favor of adopting a minimum voter turnout requirement. Presenters of the bill submitted by the ruling parties and presenters of the bill submitted by the Democratic Party of Japan both responded negatively to this argument as follows. [1] A minimum voter turnout requirement goes beyond the requirements contained in the Constitution, and may be unconstitutional. [2] Such a requirement may instigate boycott movements. [3] The public may not have a keen interest in some of the issues that can be expected to be the subject of future constitutional amendments and the freedom to abstain can be considered to constitute a part of the democratic system.

The second topic of discussion concerned legal action for the nullification of referendum results. From the perspective of preserving fairness in national referendums and ensuring that the outcome of referendums is appropriately determined, both bills currently being considered contain provisions for the filing of lawsuits.

The limits of constitutional amendment and legal action for nullification were discussed. It was noted that the constitutions of some countries contain explicit provisions concerning the limits of constitutional amendment. In this context, it was argued that amendments that exceed the limits of constitutional amendment should be subjected to judicial review.

Presenters of the bill submitted by the ruling parties and presenters of the bill submitted by the Democratic Party of Japan responded to this argument as follows. Even if an amendment exceeding the limits of constitutional amendment is initiated and ratified by the people, the right to pass judgment on the acceptability of the contents of the amendment lies exclusively with the Diet, which is empowered to initiate amendments, and with the people, in whom sovereignty resides. Therefore, no allowances have been made in the bills for subjecting constitutional amendments to judicial review.

Regarding legal actions for the nullification of national referendum results, the two bills are in agreement on the filing period for related lawsuits. Considering the need to ensure legal stability, both bills stipulate that lawsuits must be filed within 30 days from the announcement of referendum results.

The following view was expressed concerning this provision. [1] Delays in finalization of the results of national referendums will not immediately create a political standstill. [2] In the recent revision of the Administrative Litigation Law, the filing period was extended to six months. Therefore, there are no grounds for advocating a short filing period.

Regarding the court of jurisdiction, both bills stipulate that the Tokyo High Court will have exclusive jurisdiction over such lawsuits. The following view was expressed concerning this provision. In order to fully ensure the right to judicial review, the people should be allowed to file suits with courts throughout the country. Presenters of the ruling parties' bill responded that exclusive jurisdiction is given to the Tokyo High Court for the following reasons. This arrangement is convenient for combining a multiple number of lawsuits that may be filed, and corresponds to the need to reach a speedy and unified ruling.

Regarding the scope of issues to be submitted to national referendums, the ruling parties' bill stipulates that only constitutional amendments will be submitted to national referendums. However, the bill submitted by the Democratic Party of Japan additionally includes general national referendums covering important matters of state.

Presenters of the ruling parties' bill expressed the following view. The general national referendum system provided for in the bill submitted by the Democratic Party of Japan contains various issues that must be very carefully considered, such as consistency with the principle of indirect democracy. Therefore, the legislation currently being considered should exclusively cover national referendums for constitutional amendment. On the other hand, it was stated that preliminary national referendums exclusively concerning constitutional issues are worthy of consideration as a means of gauging the will of the people.

Presenters of the bill submitted by the Democratic Party of Japan responded to these statements as follows. Based on the statements made in the meeting of the Subcommittee held on November 16 and the meeting of the Special Committee held in the morning of November 30, the Democratic Party of Japan was prepared to consider adopting a certain form of general national referendum consisting of a system of preliminary national referendums that would deal exclusively with constitutional issues. The general national referendum system proposed in the bill submitted by the Democratic Party of Japan was originally intended to be a "preliminary national referendum system" to be presented to the public in advance about the general direction of legislation in important matters of state that require some form of legislation but cannot be readily resolved through political decision making. Examples include "brain death" and "surrogate mothers." Further to this, members of the Subcommittee belonging to other parties also expressed support for preliminary national referendums as a means of enriching the democratic system.

Regarding the institutional design of a preliminary national referendum system for constitutional issues, presenters of the ruling parties' bill made the following proposal. Instead of immediately including such a system in the legislation currently under consideration, this matter can be taken up in the deliberations and operations of the Constitution Examination Board. Presenters of the bill submitted by the Democratic Party of Japan responded to this as follows. The proposal is worthy of consideration if it can be confirmed that research and deliberation on a preliminary national referendum system constitutes one of the tasks of the Constitution Examination Board that is to be established under the legislation currently being considered.

Regarding the scope of eligible voters, the ruling parties' bill stipulates a minimum age of 20 for eligibility to vote in national referendums. However, the bill submitted by the Democratic Party of Japan stipulates, as a rule, a minimum voting age of 18, with the proviso that the minimum voting age may be lowered to 16 by resolution of the Diet for certain designated national referendums.

Presenters of the ruling parties' bill indicated their willingness to consider the following arrangement. The main body of the national referendum law will stipulate a minimum voting age of 18. The supplementary provisions will stipulate that legislative measures will be taken concerning the age of maturity during, for example, the first three years of the enactment of the law, and that the minimum voting age would temporarily be 20, pending enactment of such legislation.

Presenters of the bill submitted by the Democratic Party of Japan responded to this as follows. [1] The proposal to stipulate a minimum voting age of 18 in the main body of the law is highly appreciated. [2] The government must ensure that legislative measures concerning the age of maturity will be taken during the designated period of time.

Presenters of the ruling parties' bill responded to this as follows. The ruling parties will put their minds together and will, as an integral part of the government, act with responsibility to realize the above intent.

As chairman of the Subcommittee, my impressions of the fourth meeting of the Subcommittee are as follows. I believe it was extremely significant that the members of the Subcommittee were able to engage in deep discussions concerning specific issues in the course of this meeting.

The issues discussed in this meeting relate to some of the most essential features of the national referendum system. In this context, special note must be taken of the very significant concessions made during this session by the presenters of the ruling parties' bill and the presenters of the bill submitted by the Democratic Party of Japan.

These concessions can be summarized as follows. [1] Regarding the method of indicating approval or disapproval on ballots and the definition of majority, presenters of the ruling parties' bill stated that ballot format and regulations would be devised so that the diversity of the people's views could be reflected in voting. Presenters of the bill submitted by the Democratic Party of Japan responded that this proposal was "worthy of consideration." [2] Regarding the scope of issues to be submitted to national referendums, presenters of the ruling parties' bill and presenters of the bill submitted by the Democratic Party of Japan stated that the Constitution Examination Board would be charged with researching and deliberating upon a system of "preliminary national referendums" concerning constitutional issues. [3] Regarding the scope of eligible voters, presenters of the ruling parties' bill stated that the minimum age for voting in national referendums should be stipulated to be 18 in the main body of the law, while the supplementary provisions should stipulate transitional measures pertaining to the enactment of related legislation. Presenters of the bill submitted by the Democratic Party of Japan responded that this proposal was "highly appreciated." I believe the concessions contained in these statements are of dramatic significance for two reasons: they pertain to issues of seminal importance to the foundation of the national referendum system, and they eliminate some of the major differences that exist between the two bills under consideration.

This was the Subcommittee's fourth meeting, and in each of its past meetings it was able to engage in very substantive discussions. With this meeting of the Subcommittee, all of the points at issue have mostly been covered. I am convinced that the active participation of the Subcommittee members in the discussions and particularly their positive statements made concerning important points at issue have enabled us to take a big step toward reaching a final agreement.

Thank you.

Main points of statements by Subcommittee members making supplementary comments

HANASHI Yasuhiro (Liberal Democratic Party)

>> Regarding how voters should mark their ballots, the presenters of the ruling parties' bill and the presenters of the bill submitted by the Democratic Party of Japan share the same awareness. Both sides want the will of the people to be reflected in the results to the greatest extent possible, so long as the intent of the voter can be clearly ascertained. Based on the discussions that we have had in the Subcommittee, I have the feeling that it will be possible for the two sides to come to an agreement on this issue.

>> Personally, I am opposed to the introduction of a minimum voter turnout requirement because some constitutional amendments may concern the technical issue that a high voter turnout may not necessarily be hoped for. The Constitution Examination Board should, in the future, discuss the implementation of measures for raising voter turnout levels.

>> The limits of constitutional amendment were mentioned in the context of legal actions for the nullification of national referendum results. Judgment on whether or not the limits of constitutional amendment have been exceeded should not be delegated to the judiciary. Rather, the legislature should take the responsibility to present its concrete views and positions. It will be necessary for the Constitution Examination Board to discuss the limits of constitutional amendment.

>> Regarding preliminary national referendums, the institutional design of this system will have to be discussed in the Constitution Examination Board. One of the questions to be considered will be whether preliminary national referendums, as a method for gauging and absorbing the will of the people, will be used for all types of constitutional amendment, or whether their use will be restricted to amendments concerning designated matters, such as organs of government.

>> Regarding the minimum voting age, presenters of the ruling parties' bill stated that they will consider stipulating a minimum age of 18 in the main body of the law, to which presenters of the bill submitted by the Democratic Party of Japan responded that this proposal was highly appreciated. This constitutes a dramatic breakthrough. Personally, I am in favor of involving the younger generations in decisions concerning the future course of the nation. However, this matter also relates to educating the public on the Constitution, and should be discussed in the Constitution Examination Board. In this process, measures will have to be taken to deepen the people's appreciation of this matter.


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

>> Regarding how voters mark their ballots, we must return to the principles enunciated in Article 96. That is, judgment should be made on whether or not the voter has positively indicated his or her approval of the amendment that has been initiated by the Diet. We are prepared to respond with due flexibility if some other ballot format is proposed that more fully and more closely reflects the will of the voter.

>> "Abstention" is the abandonment of one's right to vote by failing to go to the polling stations. It can be interpreted to represent the voter's decision not to use his or her vote to express either approval or disapproval. As such, I believe it is appropriate that abstentions not be figured into the total number of valid votes. On the other hand, some voters will go to polling stations and not express approval for the amendment initiated by the Diet, while others may fail to clearly express their intent by writing unrelated things on the ballot. It is only natural to treat such ballots as not indicating approval.

>> I believe in a democratic society it is necessary to take into account the "freedom to abstain." For this reason, I oppose the introduction of a minimum voter turnout requirement. Instead, measures should be implemented to raise the voter turnout level.

>> Concern has been voiced that a general national referendum system may violate the constitutional principle of indirect democracy. I believe this concern can be eliminated by using the system exclusively as a preliminary referendum for constitutional issues. If discussion of the institutional design of the general referendum system is to be separated from the ongoing discussions on the national referendum system for constitutional amendment, we will need to have some assurance that deliberation on the design of a general national referendum system will be designated as one of the functions of the Constitution Examination Board.

>> Regarding the scope of eligible voters, presenters of the ruling parties' bill have proposed stipulating 18 as the minimum voting age in the main body of the law, while the supplementary provisions would stipulate that legislative measures concerning the age of maturity will be enacted. This positive proposal is highly appreciated.


AKAMATSU Masao (New Komeito)

>> The general national referendum system should be separated from the national referendum system for constitutional amendment, and should be discussed in detail later.

>> I strongly feel the need for a preliminary national referendum system because it will provide an opportunity to gauge the will of the people in advance, and can be expected to generate an interactive relation between the people and the Diet. However, instead of specifying the system in the legislation currently under consideration, I believe the matter should be left to the Constitution Examination Board for later discussion.

>> The minimum voting age in national referendums and the minimum voting age in public elections should be the same. Personally, I am comfortable with setting both at 18.

>> In the bill submitted by the Democratic Party of Japan, the minimum voting age is to be lowered to 16 in the case of certain amendments. Personally, age 16 is acceptable to me. On the other hand, this is related to the issues of compulsory education and educating the young people on the Constitution, concerning which there are still unresolved problems.

>> In light of these considerations, I believe it is appropriate to set the minimum voting age at 18 as a rule, and to adopt a minimum voting age of 20 for the time being.


KASAI Akira (Japanese Communist Party)

>> The report of the Subcommittee chairman contained expressions such as "very significant concessions made by the presenters of the ruling parties' bill and the presenters of the bill submitted by the Democratic Party of Japan," and "enabled us to take a big step toward reaching a final agreement." This only reflects the overpowering obsession that possesses those who are pushing to revise the Constitution. The fundamental differences between the two bills remain totally unresolved. No agreement has been reached and no step forward has been made among the people. The people have been left behind in these discussions.

>> Regarding the method of indicating approval or disapproval on ballots and the definition of "majority", the systems proposed by both the ruling parties and the Democratic Party of Japan are designed so that an amendment can be ratified with minimum support. It is very regrettable that all the discussions in the Subcommittee were focused on how to hammer out an agreement between the ruling parties and the Democratic Party of Japan.

>> It would be very difficult to say that the ruling parties and the Democratic Party of Japan have earnestly considered the significance of "majority" in Article 96 and the issue of a minimum voter turnout requirement. The sovereign people have been totally absent in the effort to find a compromise between the two bills.

>> It is highly problematic that both bills seek to unjustly restrict the right of the people to challenge proposed constitutional amendments in the courts.

>> Various problems were identified in the previous meetings of the Subcommittee. However, no effort whatsoever was made to discuss those issues on which the two sides showed no interest in compromise, such as the question of the membership of the Public Relations Council. The concerns and suspicions of the people have not been removed.

>> It is necessary for us to continue to engage in thorough discussion and to hear from informants. Given this necessity, I must strongly emphasize the fact that there is no other choice than for the bills to be rejected and dropped as adjournment of the current session of the Diet approaches.


TSUJIMOTO Kiyomi (Social Democratic Party)

>> "Majority" referred to in Article 96 is interpreted by some to mean the majority of all eligible voters. In any case, constitutional amendment requires the support of a large portion of the public. Therefore, I believe the adoption of a minimum voter turnout requirement does not deviate from the intent of the Constitution.

>> It is clear that nobody has been able to effectively mount movements to boycott local referendums held throughout the country. Moreover, the people have the freedom to abstain. In maintaining the legitimacy of the Constitution, it will be very important to be able to say that, regardless of any movements that may have been mounted, a minimum voter turnout requirement was duly satisfied and the popular will was unmistakably expressed.

>> Regarding the definition of "majority" and the pros and cons of adopting a minimum voter turnout requirement, research should be conducted on what experts and the sovereign people have to say about these issues.

>> I do feel that an advisory national referendum system has a certain value from the perspective of enriching the democratic system. I am opposed to going directly to a national referendum for constitutional amendment. Before that, general and advisory national referendum systems should be developed and experienced several times. Only after all this has been done should we proceed with discussions on how to deal with the Constitution, the most valuable thing we have.

>> How will lawsuits filed by the sovereign people against constitutional amendments that exceed the limits of amendment be treated? This question must be thoroughly examined.

>> The Tokyo High Court should not be given exclusive jurisdiction over such lawsuits. The filing of lawsuits with courts throughout the country should be allowed.

>> The maximum length of time allowed between the initiation of a constitutional amendment and a national referendum is 180 days. This should be reconsidered and the period should be lengthened to allow for public information activities and public discussion.

>> Only a small number of Diet Members are engaged in discussions in the restricted forum of the Subcommittee. This will only widen the gap between the thinking of the Diet and the will of the sovereign people. It is necessary to pay closer attention to the voice of the people.