Behind Moves to Revise Article 96

Direct Democracy, LDP-Style

The movement to amend Article 96 of Japan’s Constitution, Prime Minister Abe Shinzō’s first priority in a grand scheme of constitutional revision, is attracting more attention as the House of Councillors election scheduled for July 21 approaches. The prospect of amending this article, which sets forth procedures for revising the Constitution itself, is drawing support from some opposition parties as well, since the proposed changes would likely affect the makeup of future governments and entail a political realignment. 

Article 96 reads in full:

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, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify.

Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.

A law setting forth the procedures for conducting the “special referendum” in paragraph 1 was enacted in 2007, during Abe’s short-lived first administration, and came into effect in 2010. No national referendum has ever been held, however, and the Constitution has never been amended.

Prime Minister Abe desperately wants to revise the Constitution, and has made it clear that he views amendment of Article 96 as the first strike. The LDP has drawn up a proposal to lower the required parliamentary margin of approval for constitutional revisions to a simple majority in each house. The party apparently expects to have a relatively easy time convincing the public to accept this change, which is intended to put the first crack in the constitutional armor. Once the bar is lowered, it will be it far easier to secure revisions to other sections of the nation’s basic law.

If the requirements for amending the Constitution were to be eased in the manner proposed by the ruling Liberal Democratic Party, it might well set the stage for something resembling direct democracy in Japan, which the Japanese political world has always done its best to avoid.

In the prevailing drama over amending the Constitution, the conflict between those who would preserve the existing Constitution and those who would revise it—primarily in order to rewrite Article 9, the famous clause that renounces warfare as an instrument of the state—occupies center stage. The issue of amending Article 96, however, encompasses far more than a few simple procedural adjustments. The proposed changes would have wide-ranging repercussions that could redefine the type of democracy practiced in Japan and efforts to reform its system of government.

A Difficult Document to Change

Abe claims it is irrational for Japanese citizens to be deprived of any chance of amending the Constitution merely because slightly more than one-third of Diet members are opposed. The United States has amended its Constitution on 6 occasions since World War II, while France has done so 27 times and Germany 58 times. Whether the conditions imposed by Article 96 are especially onerous in comparison to the requirements for constitutional revisions in other countries is open to debate, but there is no denying the fact that Article 96 was included for the purpose of ensuring that Japan had a “rigid” constitution—one that cannot easily be altered.

Japan’s existing Constitution is based on a draft prepared by the General Headquarters of the Supreme Commander for the Allied Powers, which presided over the military occupation of Japan in the immediate aftermath of World War II.

The original SCAP proposal called for a unicameral national legislature and maintained that constitutional revisions should require the approval of more than two-thirds of its members, as well as approval from voters in a national referendum. Japanese participants in the deliberations insisted on the need for a bicameral body, however, and this led to the establishment of the National Diet as we now know it, consisting of the House of Representatives (lower house) and House of Councillors (upper house). The thinking that accompanied this decision gave the two chambers equivalent status with regard to amending the Constitution, which, in giving rise to the requirement of a two-thirds majority in each house, effectively raised the amendment bar.

In Line with International Norms?

When people discuss the specifics of the current LDP proposal, a key point of contention appears to be whether constitutional revisions should be put to a vote in a referendum after approval by a simple majority in each house—the same margin required for the passage of ordinary legislation. Holding a referendum to decide a policy issue is not unusual in other major countries. It is quite rare, however, to require that a national referendum be held to decide the fate of a proposed constitutional revision.

In France and Italy, for example, the constitution can be amended by referendum, but this can also be done through procedures in the respective national legislatures. Whenever revisions have been enacted, it has virtually always been via the latter.

In Germany and the United States, constitutional amendment procedures expressly preclude referendums. In Switzerland, meanwhile, a country well known for holding frequent referendums on constitutional revision, citizens recently approved an amendment to restrict exorbitant compensation for corporate executives.

The LDP intends to maintain the existing requirement that any constitutional revision be approved by referendum, but it wants to provide an easier path to that stage. In comparison to procedures used in other countries, the LDP scheme would accord a great deal of weight to national referendums in determining the outcome of any proposed revision.

Concern has been voiced within the LDP that lowering the required margin of approval to a simple majority in each chamber could undermine the stability of Japan’s Constitution. It was suggested that the margin be set at three-fifths instead, but this was rejected as being essentially indistinguishable from the existing “two-thirds or more.” The LDP could not go so far as to delete the requirement of final approval by referendum, though, and ultimately set its sights on lowering the margin to a simple majority in each house.

A Possible Path to Direct Elections

Even if Japan were to adopt a less demanding route to national referendums, as seen in the current LDP proposal, it would still be impossible to amend the Constitution without the approval of the voting public. If voters reject a proposed change, it will be very hard to overturn their verdict in a second referendum. Some political observers see this producing a situation in which the only constitutional revisions that are actually pursued are those the Japanese public is clearly prepared to embrace.

Public opinion polls in Japan indicate conspicuously strong support for switching from the current parliamentary system, in which the prime minister is elected by the Diet, to one in which the prime minister is directly elected by popular vote. As the debate over revising Article 96 heats up, increasing attention may well be paid to the introduction of direct elections, which would likely win approval from voters with relative ease, in contrast to the difficulty of clearing the two-thirds margin of approval in the Diet. Although it is not part of the ruling coalition, the Japan Restoration Party, which is clearly out to reform Japan’s system of government, is just as eager as the LDP to revise Article 96.

Whether the campaign to revise Article 96 gains traction will depend on the outcome of the upper house elections in July and on the Abe administration’s own momentum. The Japan Restoration Party, Your Party, and other parties supporting the revision would have to make sizable gains in the election to collectively secure the two-thirds majorities in both houses needed to ensure approval. A political realignment would probably also be needed, perhaps involving the breakup of the Democratic Party of Japan.

Yamaguchi Natsuo, the leader of the LDP’s coalition partner New Kōmeitō, remains wary. He claims it is premature to call for a final verdict on the issue now. Article 96 concerns procedural matters, and Yamaguchi questions the underlying intent behind the effort to liberalize the procedures, a step that could ultimately affect Article 9 as well.

Some opposition politicians assert that the existing, more stringent criteria for approval should continue to apply to revisions to the first three sections of the Constitution, which deal with the emperor, the renunciation of war, and the rights and obligations of Japanese citizens, but that the requirements should be relaxed for other proposed revisions.

Japan has never held a national referendum on energy policy or any other specific issue. The LDP, in particular, has been very wary of incorporating the procedures of direct democracy into national governance. Now, with the LDP leading the charge to lower the threshold for national referendums in order to pursue its coveted constitutional revisions, we are witnessing the mysterious course of political destiny.

(Originally published in Japanese on April 10, 2013.)