Constitutional Amendment in Japan — Potential Lessons from Australia
ASIA--PACIFIC, 29 Jul 2013
Joel Rheuben, University of Tokyo – East Asia Forum
In spite of Japan’s perpetual combination of economic, diplomatic and demographic challenges — not to mention the fact that the current House of Representatives faces potential invalidation by the Supreme Court — Prime Minister Shinzo Abe continues to focus an inordinate amount of political energy on his pet project of constitutional ‘revision’.
Together with the hard-right Japan Restoration Party (JRP), Abe’s Liberal Democratic Party (LDP) is determined to first attack Article 96 of the Constitution, which sets out the mechanism by which the document can be amended. The current process requires the proposed amendment to be passed by a two-thirds majority vote of each house of the Diet followed by a simple majority in a popular referendum. Abe and others argue that the two-thirds majority requirement makes it too hard to put constitutional amendments to a popular vote. The LDP/JRP plan would make it easier to get to the referendum stage by allowing proposed amendments to be passed by a simple majority in each house.
A number of commentators have been highly critical of the proposal, fearing that it would allow conservative parties to change the Constitution at will. To be sure, it is an act of tremendously bad faith to propose making the process of amendment easier without spelling out a clear agenda thereafter. Does the LDP hope to put forward its draft for a new constitution, announced last April, in its entirety? Many of the proposed amendments are unpalatable to opposition politicians, who could currently block the draft in the upper house.
If, on the other hand, the LDP intends to continue to drip-feed amendments, will it prioritise revision of the controversial pacifist provision, Article 9, or first attend to some of the more mechanical flaws of the Constitution, such as clarifying how and when a prime minister may call an election? Knowing what could be around the corner would no doubt make voters less or more reluctant to lower the bar for change.
It is moreover slightly disingenuous to argue that it is ‘too hard’ to amend the Constitution when to date no amendment has ever been proposed or attempted — indeed, legislation enabling constitutional referenda was only passed during Abe’s previous term as prime minister in 2007.
But to argue that amendment to Article 96 ‘opens the door for a gusher of revisions’, as some commentators do, misses a rather critical point: no matter how easy or hard it is to get past the first hurdle of the Diet, any constitutional amendment proposal would still require the approval of a majority of voters.
Here the experience of Australia may be instructive. Like the Japanese Constitution, Australia’s Commonwealth Constitution can only be amended after a popular referendum approving change. However, unlike Japan, referenda proposals can be initiated by only a simple majority of both houses of the Commonwealth Parliament. Nevertheless, constitutional referenda have succeeded only 8 times out of 44 attempts in 112 years — and not once since 1977.
True, the process of amending Australia’s Constitution is further complicated by a requirement that a majority of the national population in a majority of states must approve of change. But this additional requirement has only caused the failure of proposals approved by a majority of voters on five occasions. Australia’s system of compulsory voting also no doubt affects the outcome of referenda — Abe and others may be relying in part on voter apathy to ease the passage of amendments. Nonetheless, it remains the case that convincing the Australian public of the need for constitutional change is, in the words of former Prime Minister Robert Menzies, ‘one of the labours of Hercules’.
In their 2010 book, People Power: the History and Future of the Referendum in Australia, George Williams and David Hume dissect in detail Australia’s record of constitutional referenda. They conclude that several factors are crucial to the success of a referendum. Among them, there must be a demonstrated need for amendment (such as a prior High Court invalidation), and the case for amendment must have been discussed for several years. Ideally, change should be proposed after a long period of public consultation, leading to a sense of ‘public ownership’ of the issue. Significantly, almost no referenda have succeeded without consensus between both sides of politics.
None of these factors is present in the current Japanese discourse. Far from demonstrating why the current arrangements do not work, much of the rhetoric relies on appeals to nationalism, arguing that the Constitution was imposed upon Japan, and does not reflect Japanese values.
In the absence of any past referenda in Japan it is difficult to predict whether Japanese voters would share the conservatism of Australian voters. Certainly opinion polls have consistently shown only a bare majority of the population is in favour of amendment in a non-specific sense. But Australia’s record does demonstrate that the role of the electorate as a brake on hasty constitutional amendment cannot be underestimated.
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Joel Rheuben is a solicitor pursuing postgraduate studies at the Faculty of Law, University of Tokyo.
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