It looks highly likely that the ruling party will not forge ahead with the controversial plan to revise Article 96 of Japan’s current constitution, as it has decided to drop it from among its campaign pledges in the Upper House elections scheduled for July 21. The article in question lays out the requirements for any revision to the constitution itself. Well-informed sources explain that Prime Minister Shinzo Abe, while still more than fully committed to rewriting the constitution, feels that the plan to prioritize the revision of the specific article has yet to gain sufficient public support at this juncture. I am afraid Mr. Abe is missing the mark in the strategy he has chosen.

　　　The Abe administration is understandably faced with more than its share of problems, such as economic rehabilitation, international security crises, and education reform. However, a revision of the constitution is what this nation most needs in order to rejuvenate itself. I believe it is because the prime minister himself fully recognizes this that he had earlier said he would start with Article 96 in his efforts to revitalize the country.

　　　A revision of Article 96 may be proposed by the Diet only with the consent of two-thirds of the members of the upper and lower houses. The proposed revision must subsequently be approved by a majority of voters in a national referendum. Therefore, the hurdle for any revision is extremely high, as will be explained in more detail below.

　　　Because in the 66 years since the end of the Pacific War Japan has not attempted to revise the existing constitution written by the US even once, it has turned into a nation absolutely incapable of coping satisfactorily with vital problems affecting it. For example, neither the Japan Coast Guard (JCG) nor the Japan Maritime Self Defense Force (JMSDF) has been able to deal effectively with the threat from China to the Senkaku Islands, even reaching the point where Japanese sovereignty over Okinawa has been questioned. It is also due to Article 29 of the constitution that the government has been unable to impose any restrictions on the sale and/or use of strategically important plots of land across Japan – including outlying islands – which the Chinese are after.

　　　Although our nation is taken away from us as our sovereignty is violated, we have sadly been unable to revise Article 96, which allows for constitutional amendments, because the prescribed conditions are too strict. That we should be unable to touch our own constitution runs counter to the spirit of democracy. The purport of revising the article is to scale down the requirement from an absolute majority to a simple majority in order to take the American-written constitution back into the hands of the people.

　　　However, there has recently been an outburst of opposition to the proposed revision of the article. On May 23, prominent constitutional scholars and political scientists formed a group to defend the article in the current form. The fact that Professor Setsu Kobayashi of Keio University, one of the nation’s leading constitutional experts, signed up is proof that even those who feel the changes to the constitution are necessary are critical of any attempt to revise Article 96.

“Gross Anachronistic Revision of Constitution”?

　　　That the Japan Communist Party (JCP) and the Democratic Socialist Party (DSP) are within the opposition camp could easily be anticipated, but what about the Democratic Party of Japan (DPJ), which was in power until last December? Although the top opposition party has said it would discuss a constitutional revision forthrightly in Diet deliberations, it cannot help being construed as effectively opposed to the revision itself under the pretext of simply being against revising Article 96. The party’s argument against the amendment has been so slipshod as to prompt Akihisa Nagashima, deputy chairman of the DPJ’s “Research Committee on the Constitution,” to criticize it as “rhetoric bearing only the coming election in mind.”

　　　To ascertain how ill thought out the DPJ’s argument is, let us now review one of its Diet member’s series of questions raised during the deliberations at the Upper House Budget Committee on March 29. The committee was in fact meeting to discuss provisional 2013 budget plans. Quite abruptly, however, Hiroyuki Konishi, a DPJ member belonging to a group known as the Shin-Ryokufukai, started questioning Abe about the extent of his knowledge pertaining to the constitution.

　　　Konishi’s first question: “Mr. Prime Minister, would you mind pointing out the one article of the constitution that you regard as the most vital?” To this Abe replied matter-of-factly, as one would logically assume he would: “How can I single out a particular clause when every other clause is just as vital?” Undaunted, Konishi repeated the same question, this time adding: “Which is the clause that covers human rights?”

　　　Abe flatly brushed aside this question, too, reminding his questioner that he should have done his homework, instead of “asking quiz-like questions” about the constitution when they were there to discuss the provisional budget. But Konishi was persistent.

　　　Intoxicated by his own words, Konishi excitedly continued querying the prime minister. It reached the point where Hajime Ishii, a senior DPJ member and chairman of the committee, cautioned Konishi. Still unable to contain his excitement, however, Konishi further pressed Abe, demanding he put his “pride as a fighting politician on the line” and answer “whether or not the conscription you envision under the LDP’s draft is constitutional.” Konishi was obviously barking up the wrong tree, as the LDP’S revision plans do not include anything about conscription.

　　　Ranging even further afield, Konishi insisted that the LDP draft “contains clauses that would allow the government to restrict all civil liberties: freedom of speech, freedom of association, and freedom of the press – such as was the case in the old days” (during the war years).

　　　Konishi’s assertions are ridiculous and fundamentally do not deserve a mention in this column. And yet I dare take it up here because of the far-fetched remarks recently made by DPJ Secretary-General Goshi Hosono, making one wonder if this type of sloppy thinking might not represent the opposition party’s position in general. On a popular weekend news show – “Sunday Debate” on NHK TV on June 2 – Hosono attacked his LDP counterpart Shigeru Ishiba:

　　　“Why does your party advocate these kind of revisions, making it quite possible to restrict even the freedom of expression under the pretext of safeguarding the public good and public order. To me, your revisions are grossly anachronistic.”

　　　Hosono stated that it was brazen indeed that the ruling party of a constitutional nation should be attempting to ease the requirements for revising the constitution while at the same time coming up with such proposals.

　　　I honestly question the credibility of the nation’s main opposition party for developing such an invalid argument. Clearly, Mr. Hosono was questioning the wisdom of Article 21 of the LDP’s revision plans. This article stipulates that all freedom of expression, including freedom of assembly, association, speech, and the press, be fully guaranteed, except in cases (as stipulated in clause 2) where “the public good or public order would be impaired.”

　　　Far from being “a gross anachronism,” the proposed measure constitutes a well-recognized standard in the international community which is clearly defined in clause 3 (b) of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) adopted by the United Nations. Konishi took Abe to task, wondering aloud that the prime minister maybe “doesn’t know anything about the constitution.” Shouldn’t those words of Konishi’s be better presented to the secretary-general of his own party?

Abe’s Defensive Posture

　　　The problem lies not only with the DPJ. Prominent scholars, including Prof. Kobayashi mentioned earlier, maintain that Article 96 should not be revised, saying that it does not necessarily constitute an unreasonably stringent standard. They argue that the US standard is in fact more stringent, as a two-thirds majority is required in Congress to propose a constitutional revision, which must then be followed by the consent of more than three-quarters of the state legislatures. However, these assertions are clearly mistaken.

　　　In order to propose a constitutional revision in the US Congress, says Professor Akira Momochi of Nihon University, it is true that a two-thirds majority is required; however, that is only two-thirds of a quorum, which can be achieved when more than half of the members are present. In other words, a revision can effectively be proposed if two-sixths (one-third) of the members of Congress back it. Meanwhile, support by “two-thirds of the total members of the Diet” is called for in Japan. One can easily see which standard is stricter.

　　　Another criticism is that, in the event that Article 96 was revised, it would be dangerous to create an environment in which it is possible to revise the constitution itself with the same ease with which to revise ordinary laws which are subordinate to the constitution. This again is a mistaken notion.

　　　In Japan, the consent of 20 members of the Lower House and 10 members of the Upper House is mandatory in order to submit a bill. The bill will become law if approved by a majority of a quorum (more than one-third of all members) of both houses of the Diet. In short, a bill for a revision of an ordinary law is approved when at least one-sixth of Diet members approve it. No national referendum is required afterwards.

　　　Meanwhile, a revision of the constitution must first be backed by at least 100 Lower House members and 50 Upper House members to be brought to the floor. The proposed revision must then be approved by more than two-thirds of all Diet members, with a national referendum to be held afterwards.  Therefore, it is obvious that the constitution can on no account be revised with “the same ease” as an ordinary law, even if Article 96 were revised.

　　　Prime Minister Abe must make the significance of the proposed revision of Article 96 absolutely clear by sincerely explaining these differences to the people. I cannot see Mr. Abe achieving a revision of Article 96, the most important item on the administration’s agenda, if he continues with such a low-key approach.

(Translated from “Renaissance Japan” column no. 561 in the June 13, 2103 issue of The Weekly Shincho)