Discussion on Amending the Constitution must Have Greater Public Participation

The Yomiuri Shimbun

11:23 JST, January 25, 2021

This is the 13th installment of a series in which intellectuals share their thoughts on political issues that the administration of Prime Minister Yoshihide Suga will tackle this year. For this installment, The Yomiuri Shimbun interviewed Makoto Ohishi, professor emeritus of Kyoto University. The following is excerpted from the interview.

A bill to revise the National Referendum Law, making it easier to hold a national referendum on amendments to the Constitution, has been effectively put into deliberations at the Diet. This is progress, but the National Referendum Law is just a procedural matter. There has been hardly any substantive debate on the Constitution held at the commissions on the Constitution in the House of Councillors and the House of Representatives. As the Diet currently must respond to the coronavirus crisis, discussions on amending the Constitution will not advance for the time being.

Ideally, a policy should be debated and prepared before the relevant problems occur. The same can be said regarding the Constitution. Even without a rising public movement for amending the Constitution, necessary discussions must be held, including one on the top law’s Article 9 and on the creation of a clause to deal with emergencies. Politicians should vigorously engage in such debate.

Former Prime Minister Shinzo Abe, during his more than seven years and eight months in office, called again and again for amending the Constitution. This made him unlike any previous prime minister. It is laudible that the Liberal Democratic Party has compiled its draft revision divided into four points, fixing an order of priority on which provisions should be amended.

Yet, Abe often made his appeals through organizations that already supported amending the Constitution, and there is no denying that his appeals failed to spread throughout the whole country. Constitutional revision is a high affair of state and should not be limited to strategic theorizing by a group with certain viewpoints. I had hoped that Abe would voice his opinion on constitutional amendments boldly in the Diet, thus elevating debate on the matter to a stage at which the people would get involved.

■Two levels of emergencies

With the spread of infections with the novel coronavirus, public interest in a clause to deal with emergencies has grown. We must be aware that there are two levels in the state of emergencies.

One of the two would require addressing what sorts of measures the government or the Diet can take in such emergencies as a natural disaster, a terrorist attack or an epidemic. The other one is an issue of what ought to be done if the country’s existence itself becomes threatened, with both the government and the Diet becoming unable to carry out their normal activities.

A state of emergency of the type discussed amid the coronavirus pandemic is of the first type. The focus is only on the extent of appropriate measures the Diet and the government can take under the current laws. Should they exercise restrictions on private rights as well, I think they should be able to respond within the current laws in keeping with the public welfare as stipulated in the Constitution.

On the other hand, it is not possible to respond to the second type of emergency within the existing Constitution or laws. The necessary power is what is called a national emergency right, the existence of which would require a constitutional amendment. It is desirable for the required conditions for invoking and implementing such power to be stated in the Constitution. These are the issues whose debate can be hopefully deepened as important themes.

The tenure of Diet members is also stipulated by the Constitution. Neither the people nor the Diet members have shown great concern that the current situation could develop into one in which no national elections can be held. But it is necessary to amend the Constitution so that Diet members’ terms of office could be extended if no national elections can be held in a future emergency.

■Questionable stances by opposition parties

Prime Minister Yoshihide Suga is not seen as proactive on constitutional revision. Considering that even Abe, despite his incessant appeals for amending the Constitution, was not able to bring it about, it is unlikely that Suga will prioritize tackling such a project while the coronavirus crisis demands his attention. Suga is, after all, a business-oriented politician, and is probably not interested in becoming the chief flag waver for constitutional revision.

But Suga is also president of the LDP, a party that advocates amending the Constitution as part of its platform. It is his binding duty to call on the party and the Diet to amass relevant discussion, and he should wield his leadership in this regard.

Meanwhile, opposition parties have shown questionable attitudes. The largest opposition party, the Constitutional Democratic Party of Japan (CDPJ), has turned its back on amending the Constitution, saying, “We oppose constitutional revision led by the Abe administration.” It is disappointing that the CDPJ always maintains its stance of debating the issue as part of an interparty power struggle.

Amending the Constitution is a matter to be discussed in the manner of any policy issue, to consider what is wrong with the current Constitution and then contemplate how such shortcomings should be remedied. I don’t think all the members of the CDJP are negative about holding such discussions. The Democratic Party of Japan, a precursor of the CDJP, published its own proposal on the Constitution in 2005. Polishing its content and making a new proposal would undoubtedly deepen discussions on constitutional revision.

Nippon Ishin no Kai, which has worked out its own ideas on amending the Constitution and has taken a stance of taking part in the commission on the Constitution, deserves high marks. The Democratic Party for the People has also drawn attention by presenting itself as an opposition party determined to make proposals. Yet, if they approach the issue with the mind-set that forming a partnership with the ruling parties is out of the question, they would end up triggering a power struggle among parties. Therefore, I would like them to discuss potential amendments on an issue-by-issue basis.

The change of prime ministers can be said to present an opportunity for a substantial debate on constitutional revision. Lest the people’s interest fade, I think each party should carefully deepen relevant discussion, apart from power struggles among parties.

— This interview was conducted by Yomiuri Shimbun Staff Writer Jun Kudo.

■Profile

Makoto Ohishi, 69, professor emeritus of Kyoto University, was born in 1951 in Miyazaki Prefecture and graduated from the School of Law, Tohoku University. He served as a professor at Kyushu University and then as a professor at Kyoto University from 1993. Since 2017, he has been a professor emeritus at Kyoto University. Ohishi is a scholar in constitutional law, Diet law, religious laws and the history of Japan’s constitutions. He has also served as a member of the research commission on the election system of the House of Representatives, an advisory panel to the house speaker. He has written such books as “Kempo Chitsujo e no Tenbo” (Views on Constitutional Order) from Yuhikaku Publishing Co.