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New Developments on Japan’s Proposed Constitutional Amendment Process

–Tokujin Matsudaira, Kanagawa University Faculty of Law

Recently the Asahi Shimbun Weekly (ASW, a special Monday edition of Asahi News) interviewed eight constitutional scholars and asked them to answer a survey about the possible amendment of Japan’s postwar constitution. The results appeared in ASW on April 8 (in Japanese).

The eight scholars are Yasuo Hasebe (Professor of Law at the University of Tokyo [UT]), Joji Shishido (Associate Professor of Law at UT), Miho Aoi (Professor of Law at Gakushuin University), Tsunemasa Arikawa (Professor of Law at Nihon University), Setsu Kobayashi (Professor of Law at Keio University), Katsutoshi Takami (Professor of Law at Sophia University), Asaho Mizushima (Professor of Law at Waseda University) and Shuji Yagi (Professor of Political Science at Takasaki Keizai University) .

Six are considered liberal or social-democratic and thus opposed to the constitutional revision, while two (Kobayashi & Yagi) are conservative and thus advocate changing the current constitution. But Professpr Kobayashi said he opposes the LDP-proposed revision currently being proposed. Five scholars were trained at and are still deeply related to UT Law which has been dominant in Japanese constitutional jurisprudence for one hundred years (Hasebe, Shishido, Aoi, Arikawa, Takami). Of the remainder, one was educated at Waseda Law (Mizushima), one Waseda Political Science & Economics (Yagi), and one Keio Law (Kobayashi).

Interestingly, when asked whether a total revision of the postwar constitution will be done within the next three years, most of the interviewees said it is unlikely. So far only the LDP, the ruling party, has released its official draft detailing constitutional amendments. However, other political parties may have their own plan on how to revise the constitution. So “it will be difficult for revisionist parties to unite under the LDP’s draft,” said Professor Hasebe. Moreover, Japan faces a lot of difficult issues, both domestic and international. “The political situation is fluid. And the legitimacy of the Diet is questioned due to the inequality in the value of votes. It will be hard to make it,” said Professor Shishido. Even Professor Yagi, who is close to the rightist Prime Minister Shinzo Abe and considered deeply involved with the LDP draft, agreed on that point.

Professor Yagi said the consitutional revision would be conducted in two stages. First, the aim would be to change Article 96, which requires a supermajority for both houses of the Diet to propose constitutional amendments, after the upper house election to be held this July in which the LDP and other revisionist parties are predicted to take more than two-third of seats. Second, the substantive change of constitutional provisions regarding citizens’ rights and obligations will occur, but not within the next three years. Nonetheless, Professor Yagi insisted that the current constitution must be changed for its “failure to reflect the history, culture and identity of the Japanese nation that make Japan different from other nations.”

When being asked about the LDP draft that restricts citizens’ free speech in the name of “public interest” and emergency, some scholars are critical, while some believe it will make no difference. Some scholars argued that the LDP drafters do not understand the difference between “public welfare” as constitutional argument and “public interest/public order” as civil or criminal law doctrines. Professor Takami argued: “Are they really going to do this, they will make Japan the joke of the world.” Moreover, the Japanese Supreme Court has long interpreted the concept of “public welfare” in a moderate conservative fashion, saying that constitutional rights cannot be abused and can be limited for adjusting pluralistic, conflicting interest of the society. The liberal mainstream thus suggested that the rightists can get what they want without changing the constitution (Hasebe, Shishido). However, Professor Yagi uses this point to defend the LDP draft as harmless: the changes in individual rights and obligations are mostly based on established judicial doctrines and hence “won’t make big difference”. He said the new formula of public interests/public order matters only in the state of emergency in which the government has a legitimate interest to act without worries of violating citizens’ rights and freedoms.

When asked to answer, yes or no, whether they favored a project of constitutional amendment, the majority of UT-trained scholars chose a lawyer’s answer. “It is meaningless to oppose or advocate constitutional revision as a general matter” (Hasebe, Shishido). “The Constitution presumes that it can be amended. But I am doubtful as to the discussion we have now” (Aoi). Only two make it clear that they oppose the LDP draft (Arikawa, Takami). Some implied that they have their own idea about how the current constitution be rewritten, in case of a constitutional amendment they consider in the right direction. Professor Hasebe claimed that the power of the upper house should be restricted to avoid the political deadlock it has created. Professor Shishido argued that the constitution should differentiate the bicameral system by itself, by adding new provisions that specify the difference in make-up and electoral rule between the two houses of the Diet. Outside of UT, two scholars share the same attitude (Mizushima, Kobayashi). So among the eight scholars surveyed, seven are critical of the LDP draft. But only four are willing to avow that they stand against it.

There are reasons for the liberal mainstream to speak with caution. Professor Makoto Oishi at Kyoto University, who studied constitutional law at Tohoku University under Professor Kazushi Kojima and inherited his moderate-conservative legacies, has openly endorsed the amendment of Article 96. He said unlike the German model in which the parliament along can revise the basic law and thus need a stricter procedure, the current supermajority rule creates an undue burden on the Diet’s power to seek a referendum for constitutional amendment. Like his liberal colleagues, Professor Oishi is not only speaking of mere constitutional jurisprudence but also his perspective of real politics. Intelligent and sensitive scholars become aware that a profound change of constitutional politics may has been on its way.

PM Abe is at the peak of his popularity. Japanese voters seem satisfied with the boom of the stock market created by his magic Abenomics, even if it is temporary as exports have waned. His hardline policy toward China, the South Korea and the North Korea also attracts the support of both rural conservatives and urban libetarians who take neighboring countries annoying. Unlike his predecessors—including Nobusuke Kishi, PM Abe’s grandfather who first attempted to abolish the postwar constitution in the 1950s, PM Abe will find he is lucky. Both the partisan opposition and social movements which prevented revisionist LDP from winning an absolute parliamentary majority in the 1950s are now too weak, too divided to resist even a wholesale revision of the constitution. DPJ, which was in power in 2009-12 and is now the biggest opposition party, continues to lose elections at the local level and is collapsing. Citizen groups are torn by internal strife due to their conflicting views on the nation’s nuclear policy and whether Japan should join the free trade partnership—so-called TPP—led by the United States, while the union leaders choose to work with the new rightist government, for PM Abe has asked companies not to fire workers and to raise their minimum wage. In fact, the PM is so confident that he has begun to ignore his advisers’ warning not to get ahead of himself before the upper house election. On April 23, in answering questions at the Diet, PM Abe criticized the pacifist preamble of the constitution for its failure to protect Japan. (“It entrusts Japan’s national security to mere good will of other countries”). He also refused to identify Japan’s actions before or during WWII with invasive war or colonialism, saying “there is no correct definition accepted by the international or academic community of what an invasion is. It depends on how rival countries see each other”. These statements can be read as revealing that Japanese rightist’s final goal is the denial, even repeal of the San Francisco Peace Treaty Regime obligating Japan to accept the result of Tokyo Tribunal and postwar constitutional democracy.

The most recent development is that the Sankei Shimbun, known as a far-right newspaper, has released the outline of its own constitutional amendment draft, drawing on conservative language of family values, citizens’ oligation to love their country, and the kokutai concept from the pre-war period.  Constitutional discourse is shifting to the right.  While some argue that a fundamental, substantive change of the 1946 constitution will not occur within three years, we will soon find out whether this is a cool-headed observation or merely wishful thinking of Japanese elite scholars.

Suggested Citation:Tokujin Matsudaira , New Developments on Japan’s Proposed Constitutional Amendment Process, Int’l J. Const. L. Blog, April 23, 2013, available at: http://www.iconnectblog.com/2013/04/new-developments-on-japan’s-proposed-constitutional-amendment-process

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Published on April 23, 2013
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