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Is this indeed “restoring the Constitution to the people”?
— LDP’s draft constitution to limit human rights and expand powers

Toru Nakajima
Professor, Faculty of Law, Waseda University

1. Why Article 96?

I have been living in New York since September last year, so I do not have a feel for what has been happening in Japan regarding the Constitution following the lower-house general election. While I am quite open-minded about changing the Constitution, I have some doubts about the arguments for revising Article 96 that are currently being raised. Here, I will point out and discuss some of the problem areas as I see them.

Talk on revising the Constitution has to date focused on Article 9, which stipulates that Japan renounces war and shall not maintain military forces, and this is also the case for the current debate. Where it varies from the past is that changing Article 96, which is largely unfamiliar to all but specialists in the field, has taken center stage. In an April 27 interview with the Sankei Shimbun, Prime Minister Abe stated that under Article 96, the Constitution is “confined to Nagatacho” so “there is a need to restore the Constitution to the Japanese people”.

Article 96 stipulates that amendments to the Constitution require “a concurring vote of two-thirds or more of all members of each House”, and the affirmative vote of a majority of the people. The argument is that these conditions are so rigorous that constitutional revision is difficult (and confined to Nagatacho), so they should be relaxed.

2. Relaxing the conditions for constitutional revision and “restoring the Constitution to the people”

What, then, is so rigorous about these conditions? The LDP draft constitution (April 27, 2012) relaxes the abovementioned “two-thirds” and “majority” conditions to a simple majority in both cases. This is the same as the majority required in a national referendum, so the “rigorous conditions” are considered to be the number of affirmative votes needed in the Diet.

The LDP currently holds 295 seats in the House of Representatives, and in coalition, has more than a two-thirds majority, but falls short of two-thirds in the House of Councillors with 84 seats, so the party cannot initiate any amendment to the Constitution. Prime Minister Abe states that the Constitution is an imposed constitution by the US while the Meiji Constitution was an authorized constitution, so the Japanese people have never had the experience of drawing up their own constitution, and explains that the conditions for constitutional revision should be relaxed to give the people this opportunity. Put this way, many would see this as quite a compelling argument.

Another factor in this is the upper-house election in July. The ruling parties look set to secure a majority at the election, so with the support of Nippon Ishin no Kai (Japan Restoration Party-however it has lost the support of the electorate since a representative’s improper remark) or Minna no To (Your Party)etc, there is every likelihood that the government will have the numbers to satisfy the current conditions for initiating an amendment to the Constitution. If the conditions for initiating an amendment are revised to a majority, subsequent constitutional revision, including Article 9, will become easier.

Perhaps because of the growing tide of criticism, but any mention of changing Article 96 as an initial step was dropped from the LDP upper-house election platform released on May 23, and there have been murmurs of a shift in course to changing the conditions for revision on a clause by clause basis. Nonetheless, as long as changing Article 96 remains official LDP policy, this initial revision is a possibility with an LDP victory in the upper-house election. Moreover, taking a vote on relaxing conditions clause by clause is inconsistent with the above claim of “restoring the Constitution to the people”. Either way, this is essentially a patchwork of ideas targeting the election.

3. Reason that Article 96 stipulates rigorous conditions for amendment

In short, the reason is that any change to the Constitution, which lays down the fundamental principles relating to national life, must be given careful consideration. At that time, any proposed change must first be properly considered by members of the Diet, who are elected to represent the people. Although Diet members who feel strongly about amending the Constitution would say they reached their conclusion after careful consideration.

And it is for this reason that Article 96 requires a two-thirds majority and not a simple majority. The Constitution requires careful consideration not by individual members, but by the Diet as a whole; that is, detailed deliberation. If Diet members pro amendment can convince enough members in both Houses who may be opposed to any constitutional change and obtain a two-thirds majority, the Diet can then initiate an amendment. Those who are not prepared to make this effort to argue and persuade are not qualified to represent the people. Moreover, as pointed out by former Supreme Court judge Hiroshi Fukuda (Asahi Shimbun, June 8), if the vote-value disparity is not drastically reduced and an amendment is passed by a simple majority, the legitimacy of that amendment would also be denied.

As an aside, in the United States an amendment of the Constitution can only be initiated by a two thirds majority of affirmative votes in both houses of the Congress, and requires the ratification of three quarters of all state legislatures, so this is quite a substantial hurdle. Those who have seen the movie Lincoln directed by Steven Spielberg will recall the prolonged heated debate and series of negotiations and compromises over the “imposition” by the North on the South of the Thirteenth Amendment abolishing slavery. The same occurred at the time of the proposed Equal Rights Amendment, which was ultimately defeated in 1982. However, no one in the United States is calling for a relaxation of the conditions for constitutional revision, or for the return of slavery.

4. Can the LDP’s proposed constitutional revision “restore the Constitution to the people”?

The Japanese Constitution has never been amended. Is this strange? What should be questioned here is the content of the Constitution rather than the number of times it has or has not been changed. Since the end of the Second World War, the US Constitution has been amended six times, from the Twenty-second to the Twenty-seventh Amendments, including the amendment prohibiting a person from being elected president more than twice (Twenty-second Amendment) and the amendment lowering the voting age to 18 (Twenty-sixth Amendment), and in all cases, the amendments were made in an extension of the Constitution to embody the concept of modern constitutionalism aiming at guaranteeing human rights that cannot be usurped by majority vote and limiting authority to this end. Forming an inherent part of how we lead our daily lives, the Constitution is a law that has been historically formed with modern constitutionalism as an indispensable building block, so there are no issues with such amendments.

In contrast, the LDP idea for constitutional revision views the above-mentioned understanding of constitutionalism as simplistic and outdated, and argues that these days the government should fulfill the role of determining how human rights are to be guaranteed. Furthermore, the proposed constitutional revision is awash with emphasis on limiting human rights and expanding powers, including prohibiting expression activities that interfere with the public interest and public order, so the tenor of the revision is diametrically opposed to constitutionalism. So, can we really say that an amendment which effectively constricts the people would “restore the Constitution to the people”? It goes without saying, but we should not forget that once a constitutional revision considered necessary by the majority of Diet members is completed, the conditions for revising the constitution can again be made more rigorous.

5. Economic revitalization and constitutional revision

After many years in the doldrums, the Japanese economy seems to have been trending upward following the lower-house election, and the government is enjoying a high approval rating. Against this backdrop, the cover of the May 18–24 edition of The Economist featured Prime Minister Abe soaring in the sky like Superman accompanied by a pair of Self-Defense Force fighter aircraft with the title Is it a bird? Is it a plane? No … It’s Japan! (http://www.economist.com/printedition/covers/2013-05-16/ap-e-eu-la-me-na-uk)

It looked a fairly tacky cover, so I thought it may have been a special issue poking fun at Japan’s “economic recovery”, but actually it was quite a reasonable analysis of the Abe government. The article concluded that the way to restore Japan is to focus on reinvigorating the economy, not to end up in a needless war with China. The magazine cover indeed was a superb depiction of the thrust of the article.

If we think about it, this has been the fundamental position of the postwar LDP in focusing on economic growth while pushing for constitutional change. There is certainly no feeling of nostalgia on my part here, but even considering the slight improvement in economic conditions, if we allow the relaxing of Article 96 and in turn give the current LDP a free hand to revise the Constitution, there is every likelihood that restoring the Constitution to the people will no longer be possible. Economic revitalization and constitutional revision are separate issues. I believe it is now absolutely vital that the people clearly express this through the ballot box.

Toru Nakajima
Professor, Faculty of Law, Waseda University

Constitutional Law I, II, Constitutional Law (Waseda Law School) / Constitutional Law (School of Law)
Alma mater:
Waseda University, School of Law
Waseda University, Graduate School of Law
Major overseas
research positions:
University of Toronto, Visiting fellow
Fordham University, Visiting fellow
Major research:
Constitutional Law
Information Law
Major publications and papers:
Sphere of Property Rights [Zaisanken no Ryobun], (Nippon Hyoronsha)
Current Raison d’etre of the Government [Ima, Seifu no Sonzai Igi wa], Jurist No. 1378
Coauthor / Author and Editor:
In Search of the Theory of Constitutional Law [Kenpo no Riron wo Motomete], (Nippon Hyoronsha)
Case Book Constitutional Law [Case Book Kenpo], (Kobundo)