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Written by Joel Rheuben (LLM candidate UTokyo, LLB/BA (Hons) Syd, Solicitor (NSW))

In spite of Japan’s perpetual combination of economic, diplomatic and demographic challenges – not to mention the fact that the current House of Representatives faces potential invalidation by the Supreme Court – Prime Minister Shinzo Abe continues to focus an inordinate amount of political energy on his pet project of constitutional "revision". Together with the hard-right alliance Nippon Ishin no Kai, Abe’s Liberal Democratic Party (LDP) has determined to attack first and foremost Article 96 of the Constitution, which sets out the mechanism by which the document can be amended.

Currently, that provision requires a two-thirds majority vote of each house of the Diet to initiate a popular referendum in order to effect constitutional change. Abe and others argue that the two-thirds majority requirement makes it too hard to put constitutional amendments to a vote. The LDP/Nippon Ishin plan would lower the threshold for a referendum to a simple majority in each house. Yet Australia has a similar threshold - without having resulted in many constitutional amendments, in practice.

A number of commentators have been highly critical of Abe's proposal, fearing that it would allow Japan's conservative parties to change the constitution at will. To be sure, it is an act of tremendously bad faith to propose making the process of amendment easier without spelling out a clear agenda thereafter. Does the LDP hope to put forward its draft for a new constitution, announced last April, in its entirety (much of which is unpalatable to opposition politicians, who could currently block the draft in the upper house)? If it intends to continue to drip-feed amendments, will it prioritise the controversial pacifist provision, Article 9, or first attend to some of the more mechanical flaws of the Constitution, such as clarifying how and when a prime minister may call an election? Knowing what could be around the corner would no doubt make voters less or more reluctant to lower the bar for change.

It is moreover slightly disingenuous to argue that it is "too hard" to amend the constitution when to date no such amendment has ever been proposed or attempted. Indeed, legislation enabling constitutional referenda was only passed during Abe’s previous term as prime minister in 2007.

But to argue that amendment to Article 96 “opens the door for a gusher of revisions”, as some commentators do, misses a rather critical point: no matter how easy or hard it is to get past the first hurdle of the Diet, any constitutional amendment proposal still requires the approval of a majority of voters.

Here the experience of Australia may be instructive. Like the Japanese Constitution, Australia's Commonwealth Constitution also requires a popular referendum to amend constitution. Unlike Japan, referenda proposals can be initiated by only a simple majority of both houses of the Commonwealth Parliament. Nevertheless, constitutional referenda have succeeded only 8 times out of 44 attempts in 112 years – and not once since 1977.

True, the process of amending Australia's Constitution is further complicated by a requirement that a majority of the population in a majority of states must approve of change. But this additional requirement has only caused the failure of proposals approved by a majority of voters on five occasions. Australia’s system of compulsory voting also no doubt affects the outcome of referenda – Abe and others may be relying in part on voter apathy to ease the passage of amendments. Nonetheless, it remains the case that convincing the Australian public of the need for constitutional change is, in the words of former Prime Minister Robert Menzies, “one of the labours of Hercules”.

In their 2010 book, “People Power: the History and Future of the Referendum in Australia”, George Williams and David Hume dissect in detail Australia’s record of constitutional referenda. They conclude that several factors are crucial to the success of a referendum. Among them, there must be a demonstrated need for amendment (such as a prior High Court invalidation), and the case for amendment must be discussed for several years. Ideally, change should be proposed after a long period of public consultation, leading to a sense of “public ownership” of the issue. Significantly, almost no referenda have succeeded without consensus between both sides of politics.

None of these factors is present in the current Japanese discourse. Far from demonstrating why the current arrangements do not work, much of the rhetoric relies on appeals to nationalism, arguing that the Constitution was imposed upon Japan, and does not reflect Japanese values.

In the absence of any past referenda in Japan it is difficult to predict whether Japanese voters would share the conservatism of Australian voters. Certainly opinion polls have consistently shown only a bare majority of the population in favour of amendment in a non-specific sense. Yet Australia’s record does demonstrate that the role of the electorate as a brake on hasty constitutional amendment cannot be underestimated.

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Japanese Law in Asia-Pacific Socio-Economic Context
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