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Tweak the Constitution now, think later?

Amendment process could leave little room for real debate

by Colin P.A. Jones

Whether it happens or not depends heavily on the results of the upcoming House of Councilors elections, but Prime Minister Shinzo Abe has clearly announced his intention to make amending the Constitution a campaign issue.

Although his Liberal Democratic Party issued a comprehensive amendment proposal on April 28, 2012 (the 60th anniversary of the end of the U.S. Occupation, unless you are in Okinawa or the Ogasawara Islands), Abe is trying to appear reasonable by focusing just on amending the amendment process. Currently, Article 96 of the Constitution requires that a proposed amendment first be approved by two-thirds of both houses of the Diet, followed by a majority of voters in a national referendum.

The line taken by Abe and his co-reformers is that the two-thirds threshold is too high, making it impossible to even get to the point of discussing possible amendments. As if on cue, the mainstream press has obligingly printed mendacious stories about how abnormally difficult the Constitution is to amend compared to in other countries. (It’s not; anyways, constitutions are meant to be difficult to amend — it’s one of the things that makes them constitutional.)

So “all” Abe wants to do for now is change Article 96 to allow amendments to be put to a referendum with the approval of a bare majority of both houses of the Diet — a demand the LDP has maintained for much of the post-war period. Compared by one critic as an invitation to come into a restaurant with no menu, Abe’s approach seems an utterly transparent ploy to fool the electorate into agreeing first to the relatively abstract notion of making the Constitution easier to amend, then later using a simple majority vote to cram through the remainder of the LDP agenda. (Really dark thinkers posit that once they have accomplished the changes they want, the conservatives will raise the threshold again.)

After all, polls show that many voters support constitutional change at least on some issues, such as the anti-war, anti-military provisions of Article 9. Moreover, calls for reform have been part of the ambient noise of Japanese politics for decades, and the limits imposed by Article 9 have implications for national security that are obvious at a time when obligingly bellicose neighbors like China and North Korea are in the news daily.

Yet many of the other LDP amendments would likely be objectionable to many people if they stopped and thought about them. The proposed addition of a constitutional prohibition on the acquisition and use of personal information, for example, could literally mean the death of investigative journalism. As a package, the LDP constitution would probably be objectionable to enough Diet members that it would never pass muster under Article 96 as it stands now.

Abe’s ploy is thus the political equivalent of me asking you to hand over your ATM card and tell me your PIN number while promising not to use it to withdraw any money until — well, we’ll talk about that later, I promise. It is depressing to think that Japanese could fall for this, but then all sorts of frauds succeed in Japan (“Hello?” “Hey, it’s me — I’m in trouble and I need you to send me money right now!” “Who?” “It’s me . . . me!” “Oh, right, I’ll go to the bank right now,” etc.). So maybe this one will too, although a recent Mainichi Shimbun poll showed slightly more people opposing the idea of just amending Article 96 than supporting it.

But wait, you may think, whatever the threshold is at the Diet stage, amendments have to be approved by a national referendum — hardly a low threshold. Some Japanese may even find the Article 96 amendment unobjectionable because of this final hurdle to the amendment process. After all, the referendum will give the people the opportunity to actually discuss proposed amendments.

Or will it? Not a lot of people have actually read the Constitutional Amendment Referendum Act, which was passed into law the last time Abe was PM. This is a shame, because doing so might make them pay more attention to proposed amendments before they get to the referendum stage. In fact, most Japanese people will likely only learn about the Referendum Act after it is too late.

If you have ever participated in any formal Japanese decision-making processes, you may have noticed that in at least some of them the result is preordained, with the actual voting being reduced to an empty ceremony. The Referendum Act appears designed to ensure that the referendum will be similarly ceremonial, and that the right people will obediently vote “yes” with a minimum of fuss on whatever amendments the Diet sees fit to extrude.

First, the law requires the referendum to be held on an extremely tight schedule: as little as 60 days, or no more than 180 days after the amendment is approved by the Diet. This means the referendum will essentially be what we lawyers might call a “cram-down,” since even 180 days is not a lot of time for a large, diverse population to really debate the merits of something as significant as a constitutional amendment. A referendum within 60 days would diminish the whole process to the equivalent of a grubby, meaningless quickie, with actual talk reduced to whatever cursory greetings are necessary to get to the deed itself.

Despite Abe’s supposed desire to make it easier to “discuss” amendments, a chunk of the Referendum Act is actually devoted to controlling and restricting debate during the referendum period. Under the act, a Diet committee will be responsible for preparing for the people an “easy to understand and objective” explanation of the proposed amendments, with fair and equal treatment of opinions for and against. Since this committee will be comprised primarily of the same people who will have just voted in favor of the amendment, the expectation that they will be fair and objective is quaint.

Section 7 of the Act deals with “referendum activities” and begins with an exhortation that this part of the law be administered in a way that does not improperly infringe freedom of expression, academic freedom, political freedom or other constitutionally guaranteed rights — a sure sign of debate-suppressing rules to come. And come they do: “Referendum activities” are defined as any activities encouraging people to vote for or against proposed amendments. People involved in administering the voting process are prohibited from engaging in such activities within their electoral districts, which seems fair enough. Public servants are also severely restricted from engaging in referendum activities, as are school teachers and . . . me, apparently, since the law appears to proscribe all categories of educators from doing so, too.

Broadcasters are also reminded of their duties not to “harm public safety or good morals” in connection with broadcasts about the referendum (whatever that means). For good measure, they are also prohibited from broadcasting any “referendum activity”-related advertising in the two weeks leading up to the poll, except for content authorized by the Diet committee described above in accordance with rules decided by the speakers of the two chambers (both of whom would be leading figures in the majority party that approved the amendments).

Thus, during the critical period just before the poll, a time when many voters may have only started to think about the amendments, broadcasts will mostly consist of the “fair and balanced” description of the pros and cons of the amendments prepared by the committee. The law also calls for ads giving the “official” explanation of the amendment to be placed in newspapers.

Individual political parties are entitled to have their views carried unedited by NHK and other broadcasters, as well as reproduced in newspapers at no cost. On its face the law appears to provide opportunities to express and hear opposing viewpoints, but one has to remember that the supposedly neutral “official” explanation of the pros and cons of the amendment will be largely under the control of politicians in the “pro” camp.

As for the referendum itself, the law does not require any minimum voter turnout, so only a majority of the votes cast need to be in favor for the amendments to take effect. With only about 60 percent of voters bothering to show up at the polls in national elections as it is, constitutional amendments could be brought about with the support of a little over 30 percent of the electorate. That is a number of voters which the LDP should have little trouble in mobilizing, particularly if it is still riding an Abenomics-fueled wave of popularity. (Interesting point of contrast: an LDP-led conservative coalition in the assembly of Tokyo’s Kodaira city recently passed an ordinance that would render a proposed local referendum invalid if less than 50 percent of the voters turned out — a virtual certainty in local polls.)

The Referendum Act still needs some work — it was passed with some key issues left unresolved. These include the age of people entitled to vote and the degree to which public servants will be free to participate in political activities related to the referendum (the default appearing to be that they are not).

Currently the LDP is trying to resolve these issues in anticipation of the main event. As amendments to the charter become a real possibility, perhaps the Japanese people will start to seriously think about their Constitution. They will certainly have plenty of time to do so after it is gone.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send your comments and ideas to community@japantimes.co.jp.

  • http://www.sheldonthinks.com/ andrew Sheldon

    Right now I’m writing a book on constitutionalism. Its interesting because whilst Japan is considering efforts to relieve itself of the ‘high hurdle’, NZ is looking at adopting a formal constitution, which could inevitably result in it entrenching its constitutional provisions. NZ already has the discretion of no ‘entrenched law’, therefore offers the Japanese some insight into change. If NZ is a haemorrhaging nation, it seems related to its small, stagnant population & geographic isolation. NZ has been able to make some reforms of the electoral system, but the government has otherwise showed scant consideration for the views of the people from referenda. It is unreasonable to expect either people to know the implications of strategic issues like constitutions. It is equally naive to expect constitutional framers to get it right. Entrenchment is therefore destined to cause disdain for law. But in any respect, this is a red herring issue – the problem is the standard of political discourse – not the entrenchment per se.

  • Steven R. Simon

    Since the Japanese Supreme Court treats the Constitution as a treaty with the US, which in fact it is, Simon says the best way to normalize Japanese national defense policy is by a new Japanese-US treaty of equals, each party pledging to come to the defense of the other whenever and wherever attacked and both parties as equals stationing Marine and Naval forces on each others soil.

  • paul

    As the old generation pass away we loose a lot of the wisdom and Abe seems to be using this opportunity in the worst of ways. Having read this article it seems more and more he is “yabe”. Not only does he want to militarise the country he also wants to take away people’s rights so that must participate in the system- compulsary conscription?