Published in the Nikkei Asian Review 14/8/2014
In a month’s time the people of Scotland may vote to break the three hundred year old union with Britain and become an independent nation again. If Prime Minister David Cameron wins the next general election, there will soon be another referendum – this time to decide whether Britain leaves the EU or remains a member.
In each case, passions run high and public opinion is fully engaged. Both issues will be settled by a simple majority of votes cast and the losers will be expected to respect the result.
Over the centuries Britain developed a classic form of representative democracy under a bicameral parliamentary system. It has been hugely influential. Even the founding fathers of the United States looked to the British example when crafting the world’s first written constitution.
Now, according to Vernon Bogdanor, the doyen of British constitutional scholars, the various innovations of the past forty years mean that a “new British constitution” is taking shape. One of its key features is that on certain fundamental issues a third organ of legislature has the crucial voice – public opinion, as revealed by referendum.
The contrast with Japan couldn’t be greater. Japan’s constitution was imposed by the US occupation authorities in 1947 with almost no input from the Japanese people. Successive Japanese governments have followed the path of “re-interpreting” inconvenient provisions, notably Article 9’s barring of “land, sea and air forces as well as other war potential” – also with no input from the public. Prime Minister Shinzo Abe’s recent green-lighting of “collective self-defence” is merely the latest in a line of reinterpretations that have stretched the constitution to breaking point.
Written constitutions are strange artefacts, though nearly all countries have them – the exceptions being Britain, New Zealand and Israel. Their purpose is to limit the power of future governments by embedding certain principles and procedures believed to have lasting validity. By definition constitutional provisions must be more difficult to change than ordinary laws – which is why gun control in the United States is impossible to achieve.
Yet constitutions do need to change with the times, as Thomas Jefferson himself recognized. “No society can make a perpetual constitution, or even a perpetual law,” he wrote. According to University College London’s Comparative Constitution Project, every year approximately five constitutions are replaced and thirty are amended.
Japan’s constitutional “virginity” is unique even amongst the defeated nations of World War Two. The Italian constitution has been amended fifteen times in the post-war period. The Germans have amended their Basic Law fifty times, adding provisions that established the Bundeswehr and introduced conscription as long ago as 1956. In both countries the original drafting was done by local experts and reflected national traditions. Naturally no equivalent of Japan’s Article 9 was included.
Why the special treatment for the Japanese? Was there a racist assumption that Japan was inherently more aggressive than the countries that produced the Nazis and Benito Mussolini? Or was it a question of geopolitical strategy? Whatever the cause, Japan found itself constrained in a way no other nation has ever experienced.
Until recently that didn’t matter much. During the Cold War, Japan sheltered under the US nuclear umbrella secure in the knowledge that it was a vital ally against the Soviet Union. Now, confronted by an expansionist China, a fickle and inward-looking US and dynamic changes in the geopolitics of the region, Japan needs to maximize its options. In terms of alliance-building, contributions to multi-national security efforts and power projection, it needs to become “normal.”
Historically constitutional reform has been a cause pushed by conservative forces who seem eager to return to the authoritarianism of the Meiji Constitution. Some of this thinking is reflected in the various drafts proposed by the ruling Liberal Democratic Party. Meanwhile progressives seem trapped in a bubble of idealism in which pacifism remains a viable geopolitical strategy. Each side claims to represent public opinion. Which is right? Probably neither.
What Japan needs is a pragmatic approach to constitutional reform which involves an in-depth national conversation taking in all shades of opinion, expert and non-expert. Most important, the people themselves should wield the ultimate decision-making power, as will happen in Scotland on September 18th. Article 96 of the Japanese Constitution sets out the procedure for amendment – a two thirds majority in both Houses, as well as validation by referendum. The major political parties could simply agree amongst themselves to accept the balance of popular opinion, thus nullifying the super-majority requirement.
Wouldn’t this transgress the principle of representative parliamentary democracy? Maybe, but as Professor Bogdanor explains public attitudes to politicians are rapidly changing. People have become better informed and less deferential. On fundamental issues they are as competent as their leaders and know it. Japan is hardly different, as evidenced by the impassioned comments on bulletin boards combined with low support for the major parties.
“The voice of the people is the voice of heaven” is a saying well-known in both the West and East — vox populi vox dei in Latin, and tensei jingo*, in Japanese. If Britain can lend an ear to it, so can Japan. In other words, unless Japanese politicians consider their voters less worthy of respect than the British electorate, they should step aside and let them speak.
*天声人語