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No.41 ,Politics ,Discussions  Oct 27, 2017

A Long-Lived, Unamended Constitution

The Diet is the main battlefield for debate on amending the Constitution.
(Photo is the National Diet Building located in Nagatacho, Chiyoda-ku, Tokyo)

As the debate in Japan over constitutional revision becomes heated, two researchers from the University of Tokyo make comparisons with other nations and discuss the unique features of Japan’s constitution and the constitutional revision debate. Kenneth Mori McElwain is an associate professor specializing in comparative political institutions and party politics, while Makihara Izuru is a professor specializing in oral history, political studies, and the study of public administration.

Makihara Izuru (MI): I know that you are researching issues connected with the constitution of Japan (COD) and its revision. Please could you first tell us a little about the background to that research.

Kenneth Mori McElwain (KM): My original study theme wasn’t constitutional law but comparative political institutions and party politics. Like my parents, I was very interested in politics, and just as I finished high school in 1994 the Japanese electoral system was revised. I felt that that would change Japanese politics.

As I moved on to post-graduate studies I began to be interested in whether the electoral system would really change that much. I have Irish nationality, and in Ireland the ruling party has twice got as far as a parliamentary proposal to change the electoral system, but both were defeated in referendums. Ireland’s electoral system is specified in its constitution, but Japan’s is fixed by laws. I became increasingly interested in these constitutional rules relating to political institutions. And just at that time I encountered the Comparative Constitutions Project, which started at the University of Chicago and aims to translate the various constitutions of the world into English, as well as quantify their context and provisions. My research today is still connected with this.

Prof. Makihara Izuru

Prof. Kenneth Mori McElwain

MI: Did you participate in the Comparative Constitutions Project from when it was set up?

KM: I became involved with the data from a relatively later date. I have looked at differences in the popularity of constitutional topics over time, and I have coded and analyzed the Liberal Democratic Party’s (LDP) constitutional drafts of 2005 and 2012. In particular, 2012 was the 60th anniversary of the San Francisco Peace Treaty so various parties produced proposals for revising the constitution. The trickiest aspect of studying Japanese politics is how frequently political parties form and disband. Some of the parties have already disappeared [laughs].

MI: In other words, you are researching how different nations and political parties view constitutions, including draft constitutions.

KM: My fundamental interest is in the history of the world’s written constitutions. I examine how constitutions have changed from the eighteenth century onward, at how old and new constitutions differ, and the changes to the constitutions of both countries that have been colonized and those that have not. For example, I have looked at when new human or social rights, such as social security and free education, emerged. As part of that, I consider whether the Japanese constitution was an “ordinary” constitution in 1947 when it was put into effect, or whether it was a “strange” constitution. The object of my research is to position the Japanese constitution in the course of world history and constitutional history. The way in which the written contents of a constitution are interpreted and applied will affect things in new ways, but my research specialization is simply looking at what is written in constitutions.

Distinctive Features of the Japanese Constitution and the Constitutional Revision Debate

MI: I’d be very interested to hear about any special characteristics regarding the form of the Japanese constitution.

KM: One notable feature is that when translated into English the Japanese constitution has the sixth lowest word count.

But what does being short actually mean in practice? Two issues that I’ve focused on in my research are the number of human rights specified in constitutions and to what extent political institutions are specified. In the case of the Japanese constitution, many human rights are specified, but political institutions are considered a statutory issue “to be decided through legislation.” Among the existing constitutions of the world, there is no constitution older than Japan’s that specifies more human rights. When we consider the historical background, we see that GHQ officials were working to democratize Japan, and their priority was to guarantee Japanese liberal thought and personal freedoms. Conversely, political institutions are hardly specified at all. There are various historical explanations for this, one of which is that if amid postwar confusion the Japanese political system had been completely changed, the normal business of politics would have become impossible, so the authorities decided to leave it to be determined later by the Japanese.

MI: Do you see a connection between the human rights and governmental institution issues, and how the constitution has lasted so long without revision?

KM: It’s an unusual case, isn’t it? There are constitutions older than the Japanese one, but no existing constitution that has lasted longer without revision. To put it another way, the Japanese constitution is the oldest unamended written constitution in the world. Among academics there are various discussions regarding the lifespan of a constitution. For example, awareness of human rights changes depending on the era. While of course female suffrage was considered an issue one hundred years ago, it was not an issue important enough to be detailed in a constitution. Likewise, the environmental issues that are discussed today didn’t attract so much interest one hundred years ago.

As the times change so do human rights standards for a nation’s people, and when it comes to political institutions the political balance also changes. When the electoral system changes and political parties are replaced, the same governmental system may no longer be appropriate. If it remains completely unchanged, its rationality for society and politics, as well as ability to meet the people’s needs, may be lost; so it is not surprising that movements to change it easily arise. For these reasons, constitutional revision is normal. Old constitutions are not unusual, but a long-lived unrevised constitution is exceptional.

MI: Even though it is unusual for a constitution not to be revised, I think it’s even more unusual for there to be no parliamentary proposal for revision. What is your view on this?

KM: No-one has confirmed how many proposals for constitutional revision have occurred in various countries. But even without formal legislative proposals in Japan, “revision supporters” outside the Diet, particularly academics and newspapers, have expressed their views on how the constitution should be revised through printed publications and the Internet. So aside from there being no actual revision it is unusual that there has not even been a Diet proposal.

MI: The view of revision supporters in Japan seems to be that while of course a proposal must pass in the Diet, it should also be approved in a referendum by the Japanese public. But without a proposal nothing can start. I think that even if revision might be rejected in a referendum, there is value in a proposal. The step by step process of a Diet proposal, staging a referendum, and approval in a referendum would probably establish which clauses should be subject to revision.

KM: Indeed, there have long been concerns about the unconstitutionality of existing policies. For example, there is a debate over whether government aid to private schools contravenes Article 89 of the constitution; and of course, there is Article 9 too. But even with these debates going on, and even if there is a will to change the constitution, there are some topics that are difficult when fighting an election. In America these topics are referred to as “the third rail of politics.” The third rail supplies electricity to a train, and if you touch it you will be instantly electrocuted. In short, these are dangerous topics that if brought up unskillfully will cause a lot of trouble and may result in a loss of political power. I believe that the Japanese government has considered various issues and restrained themselves. In particular, there is a fear that if revision is rejected in a first referendum the movement itself may stop there. Of course, that is down to political judgement.

Specifying a Constitution, and Promulgating It

MI: Earlier you referred to the “formal characteristics” of the Japanese constitution, i.e. that human rights are covered in detail, but that political institutions are little touched on. Please could you add a little concrete detail about the distinct way in which human rights are dealt with in the Japanese constitution.

KM: The particular characteristics of institutions and their significance vary depending on which country you compare Japan to. Freedom of speech is included in 96% of the world’s written constitutions, but it’s not the case that freedom of speech is completely protected in 96% of countries. That gap is down to how constitutions are implemented. Also, the levels of detail are context specific. Countries that have historically dealt with religious and ethnic issues include details on the rights of minorities. Europe has had historical issues regarding social class, so constitutions include details on that.

In the case of Japan, although a wide variety of individual human rights are detailed, there aren’t many words devoted to human rights. That’s because the constitution doesn’t go into detail on what the terms like “ethnicity” or “class” mean. Japan also has ethnic minorities such as the Ainu, but it wasn’t thought necessary to cover their rights in the sort of detail European and American constitutions do.

The separation of religion and state is a similar issue. In Europe, “liberal democracy” was born in part out of conflict with the Catholic church, so there are many references to the status of institutionalized religion in their constitutions. The separation of religion and state is also an important topic for Japan, but unlike in Europe there were no postwar religious groups in Japan that could exercise power as an organization, so Japan’s constitution does not cover this issue in as much detail.

MI: How about the lack of detail regarding political institutions? For example, do global standards expect it to exist, but in fact it does not? Or, following what you have just said, is it specified in the constitution, but there are no real rules? Please tell us about political institutions.

KM: What is referred to as “constitutional design” in legal and political disciplines include regional government and decentralization, independence of the judiciary, structure of legislative bodies, as well as electoral law and administration. In actual written constitutions, however, there is quite a lot of variety regarding how political institutions are detailed. For example, around 40% of constitutions specify electoral law for a lower house, and 60% do not. Japan has one of the constitutions that does not. More unusually, the Japanese constitution for the most part specifies that decentralization of power will be mostly “fixed by law.” Even in a country with centralized power such as France or with a federal system such as Germany, about 30% of the constitution’s word count relates to decentralization of power, but in the Japanese constitution it is just 3%.

MI: That’s very little, isn’t it?

KM: Yes, it is unusual. Newer constitutions have more detail on political institutions, and the main factor is that their governments are constitutionally obligated to provide actual social or positive rights such as social security and education. As the government becomes more powerful, people become more sensitive about choosing parliamentary representatives, and begin to think that there is greater need for detailed rules governing administration. For example, older constitutions have almost no detail on the representative system, but newer constitutions do, and also include detail on the status of civil servants.

We can’t say, however, that the more detail the better. This is my idea rather than something that appears in the data, but I believe that a nation’s history and current situation reveals whether particular topics should be written down in the actual constitution. I mentioned the human rights issue before and noted that the Japanese constitution contains few references to ethnic minorities. But even though there’s little detail, compared to other countries it is not that much of an issue. On the other hand, clearly far more of a problem in Japan’s postwar politics is the issue of electoral malapportionment, or disparities in the value of one vote across districts. For democratically-elected representatives, the electoral system strongly influences whether they can remain a representative or not. This issue has been fought over in the Supreme Court many times but, in part due to political factors, the situation has remained unstable and a solution hasn’t been reached. In Japan, I don’t think that the apportionment issue can be resolved unless it is specified concretely in the constitution.

Desirable Constitutional Revision

MI: What kind of constitution would you consider desirable?

KM: The answer to that question differs depending on whether you are trying to make a better constitution for a particular country or designing an ideal, general purpose one. When it comes to a desirable constitution I don’t think there is such a thing as a “one size fits all” constitution. Having said that, it is probably better to have more detail on human rights than less. This is connected to the criminal conspiracy law issue in Japan, which has been much discussed recently. Although one aspect of the government’s role is to protect the country and the people, as part of its defense diplomacy it may be necessary to infringe on people’s individual rights, and for better or worse the government considers its job to be to defend the country. That’s not a wrong way of thinking. But in that situation, how far can the government go when infringing individual rights, and where does it need to draw a red line? This is a key dilemma in the balance between individual and collective welfare, and in that sense there is no harm in having more details on human rights.

It is often the case that political institutions stem from a country’s history, so it may also better to have more detail on this topic. You couldn’t really say it is better to have less.

If you think, as I do, that the history of a country can reveal problems with its constitution, it does seem very clear that electoral malapportionment is a problem affecting the Japanese constitution. This is a topic that originally made me interested in comparative constitutionalism, and it is clearly pitting the judiciary and legislature against each other, leaving the matter unresolved. More than a systematic issue, apportionment is an issue of fairness. And when there is no stability to apportionment and electoral boundary guidelines, I don’t think that is very good for democracy.

MI: What sort of stipulations regarding apportionment do the world’s constitutions contain?

KM: It is typically written in general terms, such as requiring population balance according to the results of national censuses, with the meaning of “balance” to be determined by laws or by the judiciary. I think that is the most normal situation. By contrast, the Norwegian constitution explicitly specifies a proportional representation system, in which the number of representatives per district is calculated based on one point per person and one point per 1.8 square kilometers. The constitution Norway is an extreme example, but of course everyone is aware that various problems can arise if electoral rules are left up to politicians, so it is common to detail some guidelines in a constitution to prevent manipulation.

Non-specific Constitutions

MI: What’s your analysis of the Japanese constitutional revision debate in terms of constitutional revision theory?

KM: For example, there haven’t been very many amendments to the US constitution but its interpretation has changed considerably. If you read the American constitution as it is, you probably wouldn’t understand how it is actually enforced and applied according to the judgements of the US Supreme Court. In one sense, this is constitutional revision based on interpretation. Another situation concerns topics such as Cabinet Law and Public Offices Election Law, which are considered to be part of “constitutional design”. In other countries they are specified in the constitution, but in Japan they are fixed by law. When these items are changed by law, as happens in Japan, they can be considered revisions to constitutional design.

MI: I see. Yes, that’s completely right. That’s why changing the National Public Service Law or Cabinet Law is effectively the same as changing the constitution. That’s really how it is.

KM: The German Basic Law has changed sixty times but the Japanese constitution has never changed. The main reason is that the German constitution is five times longer and that political institutions are specified in considerable detail. So, should Japan and Germany aim for the same revision, Japan will do so through law and Germany through constitutional revision. Even if the written constitution is only amended in the latter, the actual changes to constitutional design are the same.

Having said that, many American constitutional scholars have argued that it is better not to change written constitutions too frequently.

One reason is that there are some advantages in having a stable constitution. If political or social outcomes are going to be about the same whether or not it is amended, it’s better not to change it, because unforeseen effects may emerge in the long term. A constitutional amendment may be interpreted in a particular way now, but we cannot predict how the interpretation will change in the long term.

Another reason is that the enforcement of the written contents of a constitution depends on the consent of those with sovereign power. If the people judge that a country’s rulers have gone against the constitution or that their actions are clearly unconstitutional, they can institute penalties through elections and other political means. If a constitution changes too much it will lead to confusion over what is constitutional and what is not, so it is better not to change it too much. Put differently, the people must understand the significance and legitimacy of the constitution for it be binding.

In addition, there shouldn’t be any great gap between the meaning that the people attach to the text of a constitution and the meaning that the government attaches to it. In Japan today, there is such a gap regarding Article 9 of the constitution, particularly on the right of collective defense. I think that this is a big problem for the constitution. If the people can’t understand and just ignore whatever the government does, the right of collective defense may cease to be constrained by the constitution. With the situation as it is, I believe that the present administration’s attempts to change the constitution is valuable as a means of taking a fresh look at the constitution, and that the debate over Article 9 is also a very good thing. But unless the government does submit a revision proposal at some stage, the issue is unlikely to be settled.

MI: Yes, that’s right [laughs].

What do you think about education regarding the constitution in Japan? Aside from studying the constitution itself, there are considered to be three basic principles in the constitution: sovereignty of the people, respect for basic human rights and pacifism. This is just a hypothesis, but the way that Japanese people think about the constitution depends on the framework of education regarding the constitution. That framework features the teaching of pacifism, so Article 9 won’t be changed that easily…

KM: That’s very interesting. You could call it a difference in literacy; of course, things that are not discussed are not thought about much either. The Japanese constitution has not been revised, so people do not have a chance to think about the issues. What they do actually learn is part of their civics lessons or regarding the three basic principles, although if they enter a university law department they will learn more. Of course, constitutional and politics scholars would like everyone to know more about the constitution. But a country that can function this well without thinking too much about the constitution is fortunate. I wouldn’t call countries that frequently change their constitution or revise it unfortunate, but they do have to face all sorts of difficulties. In that sense, Japan has hard peace and prosperity for much of the post-WWII period, and probably hasn’t had to face any crisis that forced its citizens to rethink the nation’s structure or form [laughs].

MI: Perhaps one can say that the various structural reforms that took place in the 1990s were similar to constitutional revision. Personally, I consider them constitutional revision, and if you study them all from that perspective, the Japanese constitution has been revised twenty or thirty times since the war. You can argue that we have been steadily revising the constitution. That’s a statement with quite some impact. People will be shocked that the constitution has changed [Laughs]!

KM: So, it is de facto constitutional revision?

MI: The current system was mostly formed during the 1950s. The so-called reverse course or remilitarization that took place after the end of the occupation, was not seen as a problem of remilitarization; rather, there were various revision issues to deal with, such as what to do about the National Public Safety Commission system or the Police Law. That’s how the current structure was slowly built up. So, you could also describe that as de facto constitutional revision. Although Article 9 hasn’t changed, there have been changes to political institutions at particular stages.

KM: That’s right. For example, it was during the Hatoyama Ichiro administration in the 1950s that serious efforts began to revise the House of Representatives election system. A two-thirds majority is needed for constitutional revision, and the government argued that switching from multiple-member districts to single-member districts would make it easier to win the requisite Diet seats, although it ultimately abandoned the attempt for various reasons.

That said, leaving important topics to law creates the risk of policy instability. For example, even if a majority of representatives wanted to alter the powers of the Self Defense Force or Japan’s right to collective self-defense, this would alter Japan’s promises and alliances with other countries, and so it may not be advisable to make changes straightaway. But even when you understand the importance of stable laws, every now and then there’s a temptation to change policy. In particular, if you make election promises and then win, you have to keep them. In order to prevent that happening, the constitution needs to clearly restrict the scope of policy-making. I think that is particularly relevant to the present Article 9 issue.

I’ve heard, however, that the number of constitutional scholars working on Article 9 is decreasing. Young scholars say that there’s no point in studying Article 9, because it has become a political issue more than a constitutional one [laughs].

MI: Of course, there’s a need to aim for a better constitution. But there’s no idea even how to aim for that. It just ends up a debate that argues over and over again for revision.

KM: From a comparative perspective, it is normal for constitutions to change.

MI: Having looked again at the history of the world’s various postwar constitutions, the message that Japan also needs to think about this is clear.

KM: Thank you very much.

MI: This was an extremely valuable discussion. Thank you.

ALL PHOTOS: DISCUSS JAPAN

(This conversation was recorded on 16 June 2017.)

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