National Referendum Bill Three Tricks for Constitutional Revision: Affirmative Vote of Only 20% of Eligible Voters Would Suffice to “Destroy the Constitution”!?

From the lecture by Osamu Sakamoto (former chairman of Japan Lawyers Association for Freedom):

The LDP-Komei government has done everything they could no matter what they constitute a violation of the Constitution. They dispatched Self-Defense Forces to Iraq. They revised the Fundamental Law of Education for the worse. Now they are trying to create a conspiracy law. However, they have been unable to use force in blood-shedding battle fields in collaboration with U.S. military. It is because Japan has Article 9 of the Constitution that clearly stipulates the renunciation of armaments and war, which we have maintained to this date.

The Constitution says that war is “wrong” and Japan will solve any international dispute in a peaceful manner. War cannot be waged unless the whole nation is mobilized. To enable this, they try to eliminate Article 9 of the Constitution and establish a “new Constitution” in a few years, by which they try to bind the entire population of Japan to a war-waging country.

Following the establishment of a procedure law, the government tries to organize immediately a Constitution examination committee in the Diet to start deliberations as to how they could amend the Constitution?this is the first pillar of the procedure law.

The second pillar is to create a mechanism to ensure a victory of the constitutional revisionist forces in a national referendum. They are trying to do this because they are very worried about the possible defeat. A national referendum bill is not like a single-seat constituency system in elections. There will be no wasted votes. The movement of Article 9 Association is now spreading nationwide. Now only 40% of the population supports the revision of Article 9, while 60% opposes it, and the number of the people in opposition is increasing. Therefore, those constitution revisionists desperately want to create a mechanism to secure their victory in whatever situation. This is their real intention. Because the bill is designed with such a dark purpose, its content of the bill is more vicious than you might think.

Low Hurdle for Constitutional Revision

What are their major “contrivances” in the proposed bill? First, they are trying to establish a mechanism that enables them to revise the Constitution with affirmative votes of only 20% of the people. Article 96 of the Constitution stipulates that amendments to the Constitution require the affirmative vote of a majority of the people. A majority of the people here should mean by definition a majority of the eligible voters. However, the Liberal Democratic Party and Democratic Party claim that a majority of valid votes of the total votes, excluding invalid ones from the total number of votes, should be enough.

Provided that the total votes cast account for 40% of the eligible voters, with 10% of the total votes being invalid, the rest would be 36% of eligible voters. The majority of this 36% is around 18%, in other words, affirmative votes of one out of five people will be enough to revise the Constitution.

In Denmark, an amendment to the Constitution is not allowed unless 40% of eligible voters affirm it. It means that if the turnout rate is 40%, all of the actual voters need to be in favor of it to make the constitutional revision happen. If the turnout rate is 60%, then 70% of the votes cast must be in affirmative.

The Japan Federation of Bar Associations, from the position that revising the Constitution is a critical question of the national politics, demands that the constitutional revision should require a majority of the total votes cast, not a majority of the valid votes, and that the national referendum should be deemed valid only when the total number of votes cast exceeds two-thirds of that of eligible voters.

The ruling parties’ bill, however, sets no minimum turnout rate necessary to make the referendum valid. This amounts to dismissing the people who are against the revision of the Constitution, and therefore such an act is unconstitutional.

Prohibition of Public Employees from Expressing Their Will

The second mechanism is to block the people from campaigning against the revision of the Constitution. Initially the ruling parties’ bill said that those public employees and teachers who “used their position” and took part in the movements concerning national referendum should be arrested and punished. The interpretation of the definition: “using their position” can be stretched as much as you want. So when those public workers speak about the Constitution, they may be arrested.

Facing a barrage of criticism from the people, the government parties now suggest that they will revise and drop the punitive clauses. However, it still has clauses, which prohibit those workers from engaged in campaigns related to a national referendum. What would happen if local administrative heads punish public employees who were engaged in such campaigns based on such clauses? You know very well what Tokyo Governor Ishihara did in an attempt to enforce Hinomaru and Kimigayo on school education. It may be more powerful than the police arrest.

Four million public employees have the obligation, as stipulated by Article 99 of the Constitution, to respect and uphold the Constitution. When they become public officers they submit a declaration saying, “I will observe the Constitution of Japan.” “We will never teach our children to go to battlefields again” was the strongest determination for 1.3 million teachers, wasn’t it? When there is a move to revise the Constitution that would kill the spirit of the Constitution to make Japan a country that wages wars, what is wrong with talking about defending the Constitution; what is wrong with taking part in protest campaigns? I must say that the ruling parties’ bill violates the Constitution also in this respect.

Attempts to Control People’s Hearts and Minds

The third mechanism is that they try to control hearts and minds of individual people. They try to fool the people into thinking: “why not revise the Constitution?”, “it is nonsense to oppose (the revision of the Constitution)” by using their overwhelming power to control the information.

In the beginning, the ruling parties attempted to allocate free-advertisement space in newspapers and campaign broadcast time to political parties in proportion to the number of their Diet members. But their attempt failed in the face of people’s protest. Now they say they will make it ”equal”. But the fact is that TV commercial, advertising political programs and other pay-broadcasting media can be used freely. Do you know how much a broadcast company charges you, if want to air a commercial strip on TV nationwide with such a frequency and length that people in general can recognize and remember? It costs somewhere between 400 to 500 million yen.

Propaganda activities for revising the Constitution can be done not only by political parties. It can also be done by Japan Federation of Economic Organizations, major corporations, or by any organizations funded by them. An activist of “Article 9 Association” who is in the advertisement industry says that in the period of between “60 and 80 days (set as the campaign period)”, “a total cost to be spent for such advertisements may easily reach 100 billion yen.” For the business circles it is a very good bargain if they could “buy” the Constitution for 100 billion yen.

Regarding the use of advertisement, the ruling parties say that they will give consideration to the issue and amend their proposal so that there will be no discrimination in terms of financial conditions. But what is the point of giving consideration? The media industry will just say, “We do not discriminate anyone. The charge for airing the CM is equally xxx million yen for anyone. It is not our responsibility, even if you cannot pay for it,” and that’s it. The fact that information is controlled by money equals to the deprivation of people’s right to know and freedom to speech. This is also a violation of the Constitution.

Some Lawyers in Favor of Constitutional Revision are against Proposed National Referendum Bill

A national referendum with such unjust and unfair rules, which are only advantageous to the pro-constitution revision forces, should not be allowed to happen.

Some lawyers in our Federation of Bar Associations are in favor of revising the Constitution. But even they opposed the bill, saying that it is a fraud and runs counter to democracy. Thus, our Federation has agreed to oppose the legislation of the bill. If the real nature of the bill is revealed, I am sure that people’s opposition will spread swiftly.

When we of the Japan Lawyers Association for Freedom submitted a written opinion to Diet members, an aid to one Democratic Party member said to us, “It is emails that has strong effect on the Diet members. Our party is receiving lots of emails telling us not to side up to the LDP.” Well, what a kind advice.

I strongly feel the need to raise the public voices to defeat the attempt of getting the bill passed by May 3, with the determination of blocking this unjustifiable bill.