Japan’s Constitution is protection against arbitrary changes to the nature of society. Will it stay that way?
TOKYO (majiroxnews) — The Japanese Constitution is an anomaly. Rather than being an expression of the will of the Japanese people or a ruling clique, it was the creation of a group of Americans working for General MacArthur’s Supreme Commander for the Allied Powers (SCAP). They presented it to the Japanese government as a replacement for the Japanese proposal, which was a minor revision of the pre-war Meiji constitution. The American draft was adopted with a few changes under some pressure.
The fact that it was not a native product has caused bitter resentment for many years. One of the clauses that has attracted most controversy is Article 9 – the “pacifist clause” which forbids Japanese participation in wars, and the maintenance of armed forces. The large military self-defense forces maintained by Japan are an attempt to bypass this provision, and the revision of Article 9 has become a running battle in Japanese politics.
Changing the Constitution demands, as stipulated in the Constitution’s own Article 96, a two-thirds majority vote by both houses of the Diet, followed by a simple majority of the population voting in a referendum. The current government, led by the Liberal Democratic Party under Shinzo Abe, wants to change the constitution by seeking a simple majority of both houses before holding a referendum. Since the LDP has enjoyed near-monopoly rule since 1945, the new rules should pose no problem when it comes to seeking a referendum.
During Abe’s first administration a National Referendum Law (2007) was enacted for the first time, stipulating the terms and conditions under which a referendum could be held. This legislation, which was virtually unnoticed at the time, but which raised the hackles of the opposition parties, who complained of the LDP’s high-handed tactics, seemingly provides a level playing field and a forum for debate when it comes to informing the public on the issues involved in constitutional change.
However, as Professor Colin Jones of Kyoto’s Doshisha Law School has pointed out, most public Japanese decision-making is a rubber-stamp process designed to legitimize actions that have previously been agreed to in private. The National Referendum Law would seem to be no exception to this.
The Law states that the referendum may be held in as little as sixty days following the Diet vote. Even if the maximum permissible time of six months following the vote is allowed, this is hardly sufficient time to allow public opinion to be well-informed of any issues involved. A Diet committee (headed, one assumes, by the party wishing to promote the Constitution) will be responsible for producing a summary of the issues, intended for public consumption. Though such a summary is meant to be fair and balanced, it is most unlikely that it will be so, given past experience.
No broadcast commercials about the proposed revision are to be allowed within two weeks of the referendum. Though this may be a way of eliminating the power of money in a constitutional debate, and both sides will have equal opportunities to promote their views within the media, according to Jones, 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). It could be interpreted to mean that NGOs and other non-political pressure groups would be banned from presenting their points of view, unless through the medium of a “neutral” news item.
Jones also points out that the Law states that “national referendum campaigns utilizing the status of civil servants and teachers shall be prohibited.” Does this mean that teachers will not be allowed to discuss such issues with their students? It could be interpreted that way.
As a practical point, given that voting is not compulsory, and given relatively low turnout rates at elections, a “majority” of the population could be as little as 25% (about the same number that provided Abe with his “landslide” victory). It would be easy for the LDP and its political ally, New Komeito Party, to achieve a win.
A change in this single article of the Constitution could open the door to provide an opportunity for many other such changes, designed to keep one party in power, and to reshape Japan according to its wishes. We have already seen the LDP’s ideas, embodied in the draft of a new constitution produced by the party, that human rights are a quaint Western notion with no place in Japanese society. What about a constitutional ban on the acquisition and use of personal information? A lot of Japanese might vote for this, without realizing that this could muzzle the press, allowing it only to print the propaganda of the ruling party.
In other words, the ability to make easy changes to the Constitution could result in a loss of many democratic freedoms for Japanese people. And it has been pointed out that following such losses, the government in power could then make the constitutional amendment process revert to the older two-thirds majority requirement, making it virtually impossible to put the genie back in the bottle.
Japanese voters must think carefully before handing power like this to any government, no matter what their political beliefs may be. The questions involved go way beyond Article 9.