What is Constitutional 'amendment'?

May 31, 2004

Prof. Noriho Urabe (Nagoya University)

The Diet councils to study constitutional debates will finish next year. After that, the movement to change the Constitution will begin soon. I would like to think of fundamental issue, what the Constitutional'amendment' is.

As a matter of common knowledge in constitutional law,Constitutional 'amendment' is to delete, modify or add individual articles according to the procedure that the Constitution lays down. This is premised on the existence of present Constitution. This definition contains some important 'keys'. 1)amendment according to the procedure that the Constitution lays down, and 2)amendment which is premised on the existence of present Constitution. Japanese advocates of constitutional amendment take up the question of point 1), but completely ignore the point 2). This is a big problem. Both points 1) and 2) must be satisfied in order to justify the Constitutional 'amendment'. Only the amendment procedure according to the Constitution is not enough.

The amendment needs to be premised on the existence of present Constitution. This means, creating totally different things from current Constitution is not 'amendment'. Thus, a change that converts the fundamental principle of Constitution is not to be called an 'amendment'. The biggest issue of revise in article 9 falls into this. Various people's current 'amendment' plans are not 'amendment' but creation of totally new constitution.

Whether 'amendment' and 'creation of new constitution' is not just a difference on words. This distinction has a very important meaning. The constitution of Japan doesn't prepare a procedure to abolish the Constitution itself and create a new Constitution. Article 96 provides the 'amendment' but does not expect 'abolition of the Constitution and creation of a new one'. It is not an action available in the framework of the Constitution of Japan. If they are trying to do that, it must be done in a totally new procedure outside the Constitution.

The current Constitution gives constitutive power to 'people'. This means only the 'people' can abolish the Constitution. So the absolute majority of the 'people' should agree for sure. In particular, it must win over 50% of eligible voters' number (not 50% of the valid vote) in a referendum. If it is an 'amendment' according to Article 96, 50% of the valid vote is OK, but this is a totally different procedure. Some people might say it is politically unrealistic. But if 70% of the electorates vote and 72% of them agree, it will be the majority of all eligible voters. As a practical matter too, if they are thinking of abolishing the current Constitution and create a new one, it should require this majority of agreement. If they don't have confidence in getting this majority, they shouldn't have made this proposition.

As a matter of fact, if the 'amendment' maintains 2/3 of the majority control of both houses of the Diet, it will be proposed as an 'amendment'. But it means they have no confidence to gain the majority by 70% votes and 72% affirmative. They are deceiving people in a dishonest way, avoiding to make it a clean game. The basic principle of the Constitution is about to be changed in this way.