Ill-mannered Ploy for Constitutional Revision

May 6, 2010

Noriho URABE (Adviser , Japan Institute of Constitutional Law)

National Referendum Act is going to be enforced on May 18, 2010. The LDP, the largest opposition party, has been waiting for that opportunity. Reportedly, it plans to lay a constitutional amendment bill before the Diet. The target of that bill seems to be the Article 96, the procedure for amendments, which states "Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification...." The LDP wants to revise it to allow a half or more of the Diet members' approval to initiate amendments. In other words, the LDP is trying to revise the Constitution in order to make it easier to change it more fundamentally. What a sneaky manner! Shouldn't they be trying harder to gain more support for such an important issue? Instead, they are trying to do what they like with less support. The LDP is totally neglecting the fairness which is necessary for changing the Constitution.

A similar issue was once discussed in the Diet, regarding the National Referendum bill. Both the LDP (the ruling party then) and the Democrats (an opposition then) turned down the sound proposal for stipulating the minimum voting rate. As a result, a Constitutional amendment may be enacted by only 15% of support among the electorate if the voting rate is a measly 30% or less, under the newly-born National Referendum Act. An amendment in the Constitution means a basic change in a certain level in the system or the direction of our nation. How can we accept such a change made by a minor support? A Constitutional amendment should require clear majority's (70% or 80%) support. The Diet should initiate the amendment only when the representatives believe that 70% or 80% of the people will support it. If they are not confident enough, they should not initiate a Constitutional amendment. They must carry it out with utmost fairness and courteousness. Regrettably, they rejected the call for the minimum voting rate provisions, and now try to loosen the requirements for initiation procedures, because they have little confidence in gaining major public support for the Constitutional change.

There is no written regulations that a Constitutional amendment requires support from 70% or 80% of the people. The Constitution writes that ratification "shall require the affirmative vote of a majority of all votes cast thereon." Therefore, an amendment procedure can be completed with a slight majority in a referendum in which the voting rate is 30%. However, that may not be fair and proper, even if the provisions allow it. When I think about the meaning of amending the Constitution, I believe it is desirable that the bill is supported by a clear-cut majority. In a referendum, we can not expect all the electorate to vote, I would prefer the voting rate to be 70% to 80% and the supporting rate to be 70% to 80%. Those who try to change the Constitution should be well-mannered. They should aim for such overwhelming support. Even if such a high rate of support is not legally required, Constitutional amendments should be conducted fairly and courteously by gaining a great majority's support.

Another problem about today's move for Constitutional amendment is that the national assembly's representatives are leading it. A constitution is the people's directions and orders to those who are in power. The members of the Diet are the ones who must observe it. Is it proper for those who must obey the rules to start changing them because they are nuisance? Diet members may properly propose and discuss Constitutional amendment only when they hear people's growing call for the change. If something is no longer going well and the change is really necessary, we may expect a high support for amendment. I do not think the Japanese nation is demanding such a definite and specific change in the Constitution now. Some of the Diet members are already going off the rails as they waywardly prepare an amendment bill.

According to a prominent theory, a rigid constitution (with stricter requirement for amendment than other laws) does not allow itself to change into a flexible constitution (which can be changed like other laws). The LDP, which is considering a change in amendment procedures in the Article 96, has not yet gone that far, as they are not abolishing national referendum for ratification. The Constitution is not changing into a flexible constitution even if they succeed in allowing a half or more of the Diet members' approval to initiate amendments. Their action may still be legal. However, they should not be behaving in such an impolite and unfair way, especially when they deal with a serious issue of changing Constitution.