Waseda University Institute of Comparative Law

     Constitutional Amendment Procedural Law (May 18, 2007, Law No. 51), which is also called “Constitutional Amendment Referendum Law”, substantiates the constitutional amendment provision (Article 96) of the Constitution of Japan. After 60 years since the establishment of the Constitution of Japan, the Law finally has come into existence. The Law was never established until now due to political conflict on the issue of constitutional amendment, though it merely stipulates procedures for constitutional amendment and is only of a practical nature. However, the way of its establishment has left some unsolved issues. As a result of the forceful handling of the government at the time by the Cabinet of Shinzo Abe, the legislation was railroaded through the Diet in the middle of its deliberation; not only did the legislation fail to obtain affirmative votes of opposition parties, but the legislation itself contains significant faults. The “additional resolution” in “Special Investigative Committee on the Constitution of Japan” of the Upper House is a perfect example of this situation. The 18 items of the additional resolution stand out in Japan’s legislative history because of their extremely unusual characteristics.

     To begin with, an additional resolution refers to a resolution made by a Diet committee while it is adopting legislative bills or budget bills, with the purpose of including operational nonbinding targets and reminders to be provided for relevant ministries and agencies. Additional resolutions are often required by opposition parties as the conditions for affirmative votes to legislative bills. Additional resolutions have no binding power and are only of political or ethical nature.

     The number of items, 18, is by no means particularly large. In recent years, for instance, the amended Nursing-Care Law had 24 items and the Law for Independence of Persons with Disabilities (2005) had 23 items. Then, what is the issue?

     First, the minimum voting rate must be considered. For example, according to the Constitution, amendment is possible by a majority of votes, so if the voting rate was 30%, amendment could be done by a little over 15% of constituency. Hence, the item stating that “in order to prevent mistrust on the validity of a constitutional amendment”, the “minimum voting rate system” sould be reexamined no later than the implementation of the Law (Item No. 6) was added. During the deliberation phase of the legislative bill, this point was regarded as an important issue. However, the ruling parties rushed the establishment of the legislation and the point remained unresolved. Isn’t the Procedural Law a failure, if such “mistrust” arises from its original institutional design? It’s not too much to say that the unresolved, important issues were listed in the additional resolution because of the forcible passage without adequate deliberation.

     Among others, what I consider as “a low point in Japan’s legislative history” is Item No.12. “Penal regulations shall be reexamined from the viewpoint of defining [criminal] constituent factors and taking into account necessary measures under legal system”. When I first saw this Item, I could hardly believe my eyes. This is even worse than mere rough-and–ready or cutting-corners legislation.

     The original role of additional resolution is to call attention to the actual operation of penal provisions, which are “passed with the understanding that they have clear constituent factors”, from the viewpoint of protection of human rights. One of the Items of this time’s additional resolution states that “in the application of the penal provisions, attention must be paid so that expression of opinions and activities of citizens about constitutional amendment are neither cowered nor restricted” (Item No. 14). Read in light of this, Item No. 12, which requests the future clarification of the factors, is virtually a concession of defeat as a work of legislative body. Clarification of criminal constituent factors is not a matter of politics, but a matter related to the most important legal theory of the Constitution. That is because, if the criminal constituent factors are ambiguous and unclear, there is a high possibility of violating Article 31 [Legality Principle and Doctrine of Vagueness]. The legislative body declared its doubt over the constitutionality of the law from the very first establishment of it through the additional resolution, and it is not an exaggeration to say such legislation is unprecedented.

     The implementation date of the legislation will be “the date after the passing of three (3) years from the promulgation date”, i.e. May 18, 2010. With tenacity and saying that “during my term as prime minister, constitutional amendment must be achieved”, Prime Minister Abe caused the Diet to rush the establishment of the Constitutional Amendment Procedure Law, and then this strange additional resolution was created. After four months from the establishment of the legislation, he suddenly resigned his spot. Subsequent Cabinets have been taking a cautious stance to the constitutional amendment. Now on the brink of the legislation’s implementation, virtually no reexaminations have been made on the various issues presented by the additional resolution. Needless to say, this legislation concerning constitutional amendment procedure is extremely important. I would like to suggest that the implementation date should be extended and that the entire legislation needs full-fledged revision after adequate deliberation on all 18 items therein.