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Japan’s Election and Constitutional Revision

Japanese awoke this morning to find that the Liberal Democratic Party had won a massive supermajority in the lower house, more than doubling its seat share from 118 to 294 seats. Its coalition partner Komeito won 31 seats, and the hawkish Japan Restoration Party also won 54 seats, nearly matching the governing Democratic Party of Japan. This is likely to have significant constitutional consequences: the head of the LDP, former Prime Minister Shinzo Abe, is an advocate of constitutional revision to modify Article 9.  With the minor right-wing parties, he is likely to have the votes to achieve the required 2/3 majority in the Lower House for proposing a constitutional amendment.

The conventional interpretation of the election is that the majority of citizens were voting not for the LDP or constitutional amendment.  Instead, they voted to punish the DPJ for its betrayal, incompetence and internal strife. And they voted for a stable, powerful government to deal with domestic and international crises. Many even refused to vote. The voting rate dramatically dropped from 69% to 59%, which had significant consequences for the DPJ in single-member districts: their voters didn’t show up, while the LDP’s did.

Voters don’t realize that they have may have acted to support the right wing’s claims that too many constitutional rights have spoiled the nation, and that only conscription and nuclear weapons can restore Japan’s position as No. 1 in Asia. Japanese may pay for this in the coming years. The government doesn’t respect free speech and human rights, but has been elected through a democratic political process and will enjoy majority support if it can improve the economy and unemployment rate.

During the last Abe government, the LDP proposed amending the constitution, among other things introducing the word “army” into Article 9. The government fell before the amendment could be introduced into the Diet.  According to Article 96, constitutional amendments require proposal by the Diet with a 2/3 vote in both houses, followed by a majority vote in a public referendum. To secure a constitutional majority, the LDP will have to win upper house elections held next summer.  If a coalition can be formed to secure a 2/3 vote there, it may proceed to propose amending Article 96 to lower the threshold for proposing a constitutional amendment.

An illusion among Japanese elite bureaucrats is that the US won’t allow a right-wing Japan to go too far, i.e., to abolish constitutionalism/enhance militarism. So most of them do not take the new LDP government too seriously. But my view is a bit more pessimistic. The US policy makers are at best indifferent. For them the conflict between a rightist Japan and communist China & DPRK, a war between Asian reactionaries, might be seen as good for the US interest, a new kind of “double containment”.

Should it occur, constitutional revision in Japan will have serious regional consequences.  Not only will it draw China closer to North Korea, but South Korea too will turn toward China to hedge the Japanese threat—while Japan’s right-wing government and LDP, who consider themselves the only legitimate agent of the US interest in the East Asia, will rely on the “US-Japan alliance” to overcome the international isolation they will be faced with. This will put the US into a bind.

For constitutionalists and constitutional scholars, we may be entering a critical juncture. The prewar experience has provided us with a model: but in that period our scholars turned to focus on comparative constitutional law or foreign constitutionalism without criticizing developments at home.   This time we should be more vigilant.

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Published on December 18, 2012
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5 Responses

  1. Your analysis suggests that the LDP may mount an effort to amend Article 96–which entrenches the rules for formally amending the Japanese Constitution–to lower the very demanding formal amendment threshold to something less demanding.

    Have any scholars made the argument that Article 96 is specially entrenched and therefore not subject to amendment by the formal amendment procedures of Article 96? On this theory, formal amendment procedures are implicitly unamendable (or if not unamendable, then subject to some higher quantum of agreement than required for amending the non-amending clauses of the Japanese Constitution).

    If scholars have made this argument in the Japanese context, do you agree with them? If scholars have not yet made this argument, do you think it has any validity?

    It will be fascinating to watch how Japanese constitutional politics unfold in the months ahead.

    • Tokujin Matsudaira

      Your question is digging a field which Japanese scholars had found but did not cultivate. The well-accepted positivist interpretation is that the essence of Article 96, the requirement of people’s ratification, cannot be revised (Nobuyoshi Ashibe 2011, Koji Sato 2011). But it does not make clear whether the parliamentary supermajority rule (two-third) also cannot be changed on the same ground. Considering the fact that the 1946 constitution was made pursuant to the revision procedure of the 1889 constitution (Art 73), postwar constitutionalists focus on the substancial value of the 1946 constitution, ie, the sovereignty of the people, constitutional guarantee of human rights, and renounciation of war [three principles]. To be sure, some constitutionalists who take the two-third requirement as counter-majoritarian barrier that is significant to protection of core constitutional values (Kazuyuki Takahashi 2011, Shojiro Sakaguchi), but others choose to stress on theoretical, idealistic denial of the idea of a constituent power claiming its legitimate power to change the pricedural rule of constitutional amendment (Yoichi Higuchi 2007, Yasuo Hasebe 2011). The latter maintains that a constitutional amendment abolishing the “three principles” will go beyond the limit of constitutional revison even if it passes all of the procedural requirements.
      On the other hand, considering the fact that the majority of Japanese citizens are social conservatives who enjoy but do not really embrace the postwar constitutional value, the conservative scholars support the idea of people as sovereign. Thus it is possible for them to argue that the current supermajority rule is anti-democratic. In fact some right-wing scholars have made such argument. But no big-name conservatives back the idea.
      Note that Japanese constitutional jurisiprudence still cherishes classic comparative constitutional theories and doctrines which are abandoned in their homelands. In France, the 1884 constitutional law of the Third Republic provided that the republican form of government cannot be changed—same prohibition can be found in today’s French constitution. But French constitutional scholars like Malberg pointed out that even that provision can be removed if following the amendment procedure. In Wemar Germany, the 1919 Constitution could be revised by the Reichstag through an aggrevated majority rule (two-third). The popular view among scholars in that time was that the constitution should and in fact did function as special kind of statutory law, and that its realization relies on statutes. This is also the context Carl Schmitt could argue that a constitutional revision cannot abolish the fundamental decisions made by the constituent power. However what he really meant is that a constitutional revision going beyond the limit merely means it is invalid as old constitution. In other words, it is valid as a new constitution containing a set of decisions made by new constituent power. So for those who do not committ to the cnstitutionalist values, it does not matter. While for those who committ to the postwar constitution, there is no agreement on what is the best strategy—procedural or substancial.

  2. Tokujin Matsudaira

    See (all Japanese textbooks)
    Ashibe 2011= Nobuyoshi Ashibe, Kenpo [Constitutional Law](Kazuyuki Takahashi ed. Iwanami Shoten, 5th Ed, 2011).
    Hasebe 2011= Yasuo Hasebe, Kenpo [Constitutional Law](Shinseisha 2011)
    Higuchi 2007= Yoichi Higuchi, Kenpo[Constitutional Law] (Sobunsha 3d ed. 2011)
    Sato 2011=Koji Sato, Nihonkoku Kenpo-ron [The Japanese Constitution Treatise] (Seibundo 2011)
    Takahashi 2011=Kazuyuki Takahashi,Rikkenshugi-to-Nihonkoku kenpo [Constitutionalism and the Constitution of Japan] (Yuhikaku 2011)

  3. Tom Ginsburg

    fascinating. there is a latent “Basic Structure” doctrine in the Japanese constitution, it seems, at leasst according to some.

  4. Thank you for your helpful reply. The Japanese Constitution is something I intend to learn more about; your citations will be tremendously useful.

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