The Upper House on Monday enacted a law that establishes procedures for a national referendum to revise the Constitution. The legislation was backed by the Liberal Democratic Party, Komeito, one member of the opposition Democratic Party of Japan and an independent. The law’s provisions concern the most important process in Japanese politics. But its contents raise many questions and may cause confusion and raise objections when a referendum process is set into motion.
The biggest question concerns the fact that the law fails to mandate a minimum turnout rate for a referendum to be considered valid. The law merely states that a revision will become effective if it is favored by a majority of valid votes in a referendum. Thus if turnout for a referendum is 50 percent, theoretically a 25 percent vote would be enough to revise the nation’s basic law. A situation in which a relatively small number of people decides the shape of the nation’s supreme law would run counter to the constitutional principle that sovereign power resides with the people.
Article 96 of the Constitution stipulates that amendments to the Constitution shall be initiated through a concurring vote of two-third or more of all the members of each House of the Diet. Under the new law, the minimum number of lawmakers in each House necessary for submitting a bill for a constitutional revision is 100 in the Lower House and 50 in the Upper House.
A public-relations council for a referendum will be set up within the Diet. The council will consist of 10 Lower House members and another 10 Upper House members, with the seat distribution decided in accordance with the strength of parliamentary groups. The council will draft explanations about constitutional revision for broadcast and publication in newspapers. But the composition of the council renders its ability to draft the explanations in a neutral and objective manner doubtful at best.
Political parties will be guaranteed equal time, space and frequency for free advertisements on constitutional revision. But paid broadcast advertisements will be permitted until two weeks before a referendum is held. Since TV commercials are expensive, well-financed groups will have an advantage. TV commercials may also fail to accurately convey the true meaning of a proposed constitutional revision. Thus doubt remains as to whether a referendum on constitutional revision will be carried out in a manner that is equitable for all political groups and for all the people.
The law will go into effect three years after it is promulgated. Constitutional research committees will be set up in both Houses. They will concentrate on research during these three years and refrain from submitting and deliberating on a bill for a constitutional revision during this time. But some LDP members insist that the law permits the committees to make an outline for constitutional revision. Unfortunately, the law is ambiguous.
The law prohibits public servants and educators from participating in movements for or against constitutional revision in a manner that takes advantage of their position. Although the law does not provide for a penalty, public servants who violate this prohibition may be punished by other laws governing their functions and behavior. Article 99 of the Constitution requires all public officials, including the emperor, state ministers and Diet members, to “respect and uphold the Constitution.” The referendum law could have an intimidating effect on public servants who wish to cite Article 99 in speaking out against revising the Constitution or public-school teachers who address the subject in their classes.
The fact an 18-point supplementary resolution is attached to the law shows that it contains many flaws. It should be revised to ensure that referendums can be carried out in an equitable and fair manner.
The enactment of the law will give a boost to Prime Minister Shinzo Abe, who is trying to make constitutional revision an agenda in the coming Upper House elections. However the Upper House elections should not be used as a platform to make abstract statements on constitutional revision. Rather, they should be used to discuss concrete issues that directly affect the people’s lives. A Kyodo News poll in mid-April showed that 57 percent of those polled were for a constitutional revision — down from 61 percent in April 2004 — and that 34.5 percent were against a revision — up from 29.8 percent. It also showed that 55.6 percent thought that there was no need to rush the referendum bill through the current Diet session, versus 19.9 percent who felt the opposite way.
There is no pressing need for the government to rush to revise the Constitution. Any proposed changes should be thoroughly and thoughtfully discussed and debated.
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