Reinterpreting Article 9 of the Constitution of Japan

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Kensuke Ueda outlines the context for the recent reinterpretation of Article 9 of the Japanese Constitution, which until now outlawed war as a means of settling disputes. He suggests the manner in which the changes were pushed through is worrying for Japanese constitutionalism.

On 1 July this year the Japanese Government passed the cabinet decision on the ‘development of seamless security legislation to ensure Japan’s survival and protect its people’. This new direction in national security legislation has attracted a great deal of attention because it contains a change in the interpretation of Article 9 of Japan’s 1946 constitution, which states that ‘the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes’.

‘Change of interpretation’

The conventional interpretation of Article 9 states that it prohibits military intervention. However in light of ‘the right to live in peace’, recognised in the preamble of the constitution, and Article 13, which guarantees the ‘rights to life, liberty, and the pursuit of happiness’ as worth supreme consideration in governmental affairs, Article 9 cannot be interpreted as prohibiting Japan from taking measures to maintain its peace and security and to ensure its survival. The ‘use of force’ abroad has thus been judged not permitted, but Japan has long maintained a Self Defence Force (SDF), which is not seen as unconstitutional as long as it is used purely for the purpose of self-defence.

Following this logic, the government has until now understood that the use of force is permitted only in the event of armed attack against Japan. However, the security environment surrounding Japan has been fundamentally transformed by shifts in the global power balance and the rapid progress of technological innovation since Article 9 was adopted. Many now feel that in the future even an attack occurring against a foreign country could actually threaten Japan’s survival, depending on its purpose, scale and manner.

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Constitutional Amendments by Popular Initiative: Lessons from Croatia

On 3rd December 2013, the Croatian public voted in support of adding a provision to their constitution which defines marriage as “a union between a man and a woman”.  Croatians effectively voted to constitutionally entrench a ban on gay marriage.  The prohibition of same sex marriage in the constitution is in itself is not particularly unexpected in Croatia, with a whole host of eastern European nations failing to recognise the marriage of same sex couples.  What is perhaps more surprising is the means by which it occurred.

Following the 2011 election, the new coalition government in Croatia announced their intention to expand the rights of same sex couples.  In a country where approximately 90% of the population consider themselves to be Catholic, this decision was not well received by many religious groups.  The response by Catholic group “In the Name of the Family” was to launch a public initiative to propose the constitutional entrenchment of the definition of marriage as being between a man and a woman.  An overwhelming 750,000 citizens signed the petition calling for a referendum on the matter, almost 20% of all eligible voters in the country.   As per Croatia’s Constitution, Parliament is obliged to call a referendum when requested by 10% of the total electorate.  So whilst the President and Prime Minister of Croatia both fiercely opposed the constitutional amendment, the 10% threshold was surpassed and the referendum went ahead.  Two thirds of those who turned out voted in favour, and subsequently the government was forced to announce that the prohibition of same sex marriage in the constitution would go ahead.

Prior to the referendum taking place, Croatia already had a legal definition of marriage.  Article 5 of the Family Act 2003 states “Marriage is a legally regulated community of a man and a woman.”   So why the need for a constitutional definition?  The reasoning behind defining marriage not only by law, but also in the country’s higher law, was to ensure that the definition of marriage became particularly difficult to change.  To amend the constitution, a two thirds majority vote in Parliament is required.  This is no mean feat, particularly with regard to controversial or divisive subject matters.   With 13 parties currently represented in the Croatian Parliament, a supermajority becomes impossible without significant cross-party consensus.  Thus defining marriage in the constitution had the purpose not only of limiting the rights of same sex couples, but also of ensuring that this limitation persists long into the future.

What makes this sequence of events in Croatia particularly noteworthy is that the change to the constitution was initiated not by the countries’ elected legislators, but by the public at large.  There was such definitive popular support that the government has been forced into making a constitutional amendment that it doesn’t want to make.  It could be argued that this is a sign of a healthy democracy, with decision making in the hands of the wider population.  In this instance however, the wider population is a largely Catholic, heterosexual majority group.  By voting to discriminate against the minority gay and lesbian segment of society, this bears more resemblance to a tyranny of the majority, than a healthy democratic practice.

The violation of the rights of a minority group is a dangerous precedent to set.  This is clearly a concern for the Croatian government, who have responded by proposing an amendment to the constitutional provision that allows for popular initiatives to incite referenda on issues of constitutional change.  The proposed amendment calls for a restriction on the issue areas which can be brought before a referendum, with the aim of prohibiting any future referenda on issues of fundamental rights and freedoms.

The Croatian government is right to have serious concerns about the use of referenda when it comes to issues of minority rights.  A second popular initiative has since been launched in Croatia, this time collecting signatures in support of limiting the rights of the Serbian minority’s use of their own alphabet.  Yet the governments’ response to alter the constitutional amendment procedure is in itself a questionable strategy.  Constitutions by design lay down the fundamental principles of a state.   By entrenching such principles in a constitutional text, the idea is to firmly embed them, making them very difficult for any governing body to change for their own advantage.  Amendment procedures are therefore vital for the protection of the underlying constitutional principles, and are generally considered to have a somewhat unassailable status.  Thus, a government proposed amendment to the constitutional amendment procedure, could in itself be considered an abuse of power.

In this instance the government’s intentions appear to be admirable in the respect that they are seeking to protect minority groups from future abuses, but if the current government can change the constitutional amendment provision with relative ease, what is to stop future governments from doing the same but with less admirable intentions.  Hypothetically, a power hungry President could decide to reduce the majority required in Parliament to pass constitutional amendments, which in turn could lead to the easier passage of further amendment bills for means such as increasing presidential powers and removing term limits, seriously threatening existing democratic structures.

The events in Croatia perhaps demonstrate a flaw in the original design of the Croatian constitution.  The provision that allows for the supposedly democratic tool, the public initiative, to incite unrestricted constitutional change, seems particularly ill-informed in a country with a substantial Serbian minority group and a history of ethnic tensions.  It appears only logical that provisions are put in place to restrict the use of public initiatives and popular votes, with the aim of preventing minority rights abuses resulting from the prejudices of a majority group.  What is problematic with this approach is that to enforce such provisions, a change to the constitutional amendment rules is required.   This sets a dangerous standard whereby changing these rules becomes acceptable, and future abuses of this power become possible.  To counteract this threat, the government may be wise to consider proposing a second constitutional change, this time setting out strict rules and regulations which restrict the ability of future governments from making any further changes to the amendment rules.  To protect both human rights and to safeguard democracy, there may be a need to first change the constitutional amendment procedure, and then take steps to prevent it from being changed again.

What Would a Scottish Constitution Look Like?

Last week, Stephen Tierney posted an excellent evaluation of the White Paper released by the Scottish Government on “Scotland’s Future”.  In his evaluation, Professor Tierney addresses three issues related to the Government’s repeated commitment to write a constitution should Scotland become independent:  1) when will it be finished? 2) what will be in it? and 3) what process will be used to make it?  Much of his post is on the process of writing a Scottish constitution, so I want to make just a couple of additional observations about the likely contents of a Scottish constitution.  My remarks are based on a report that I wrote last spring with my collaborators on the Comparative Constitutions Project.

First, very little is likely to change in Scotland as a result of drafting a constitution.  As we state in our report:

Almost all countries have institutions that pre-date their entrance into the modern state system and the writing of their first constitution.  Regardless of whether a state’s primordial institutions were purely informal rules, as in the earliest states, or colonial structures, they will likely survive in some form.  Institutions inevitably favor some individuals’ interests over others, so those who benefit from the presence of some institution have a strong incentive to fight for the continued existence of that institution during constitutional drafting.  Factors such as colonial heritage, legal origin, religion, ethnic fractionalization, language, and region are strong predictors of pre-state institutions and, as a result, the content of subsequent constitutional systems. (p. 3)

If Scotland becomes independent, regardless of whether it writes a constitution or not, the institutions established by the Scotland Act (1998) are likely to live on and to maintain the same structure and powers that they have today.  As a result, ordinary politics in an independent Scotland are likely to look almost identical to ordinary politics in Scotland today.

I am not suggesting that Scotland should not write a constitution.  The act of writing a constitution has value beyond the contents of the document.  Writing a constitution can help build legitimacy for the new Scottish state and, depending on the process in which it is drafted and promulgated, may even help to unify the newly independent nation.  By establishing a hierarchical system of law, a constitution may even further entrench democracy and the rule of law in Scotland.  What I am suggesting is that, regardless of any positive externalities that Scotland might reap from writing a constitution, the contents of that document are largely predetermined.

Second, I am sceptical of the Government’s promise to entrench socioeconomic rights in the Scottish constitution.  Socioeconomic rights are easy to promise but hard to deliver.  If the Government really intends to deliver on the socioeconomic rights that it has promised, then it should promise to make them justiciable, meaning that the Courts in Scotland will be able to enforce them, and explain how it intends to pay for them.  The Government has done neither.  As a result, I think it is more likely that there will be socioeconomic rights entrenched in the Scottish constitution but that those rights will be aspirational, giving the Government lots of flexibility when deciding whether or not to adhere to those promises.

Announcing the Launch of Constitute: The World’s Constitutions to Read, Search and Compare

23rd September 2013

I am pleased to announce the launch of Constitute, a website for reading, searching, and comparing the world’s constitutions.  Constitutions are critical to countries’ development.  Outcomes, like democracy, economic performance and human rights protection, are all associated with the contents of countries’ constitutions.  It is little wonder, then, that constitutions are often blamed for poor economic and political outcomes or that such outcomes commonly result in constitutional change.  Constitute aims to improve constitutional design and, in doing so, increase the likelihood that countries’ constitutions will facilitate development, rather than hinder it. Numerous countries change their constitution each year.  Already this year we have observed new constitutions in Fiji and Zimbabwe and constitutional amendments in Brazil, Colombia, the Czech Republic, Georgia, Hungary, Mexico, Switzerland and Tonga.  In addition, countries like Egypt, Myanmar, Tunisia and Yemen are all known to be in various stages of the constitutional revision process.  Some might be surprised to learn that so many countries have either recently revised or intend to revise their constitutions.  After all, constitutions are meant to be timeless documents that establish the foundations for politics and governance from one generation to the next.  This may be true in the United States or Western Europe, but most countries’ constitutions are fragile.  A typical constitution lasts only 19 years, which means that, on average, 5 constitutions are replaced and 30 are amended each year.

Despite the high level of constitutional change each year, there is no country that changes its constitution often enough for public officials to gain much experience as constitutional drafters.  Constitutional drafters are typically engaged in a task that they have never done before and will never do again.  They lack systematic information on the contents of other countries’ constitutions that could help them to decide what topics should be addressed in their constitution and how to address those topics.  Such information is hard to acquire.  There is no single location that constitutional drafters can use to access and compare constitutional documents and language – which is critical to drafters – because these documents are locked up in libraries or on the hard drives of constitutional experts.

Constitute addresses this problem by putting searchable copies of the world’s constitutions online.  However, Constitute is more than just a repository of constitutional texts.  The project draws on data collected by the Comparative Constitutions Project over the last 8 years to assign topic tags to provisions within constitutions.  This allows for powerful, topic-based searches of those texts.   There are more than 300 topics for users to choose from on the site, which range from the fairly general – e.g. the structure of the branches of government – to the very specific – e.g. voting rights for indigenous groups.  For those interested in regional or temporal trends in constitution-making, the search results can be filtered by country and year.

Our hope is that Constitute will improve constitution-making by allowing drafters to consider the full array of possible choices when determining the contents of their country’s constitution.  We also anticipate that the tool will empower domestic actors not directly involved in drafting the constitution but who are, nonetheless, integral to the success of that process.  Increasingly, constitution-making processes ask the public to participate, for example by submitting suggestions to the constitutional drafting committee or approving the completed draft in a public referendum.  Constitute will facilitate participation in these aspects of the constitution-making process by allowing groups in civil society, academia, and the general public to inform themselves about how other countries have tackled particular problems.

More generally, the constitutions available on Constitute will be of great interest to numerous domestic actors in countries all over the world.  Many constitutions are not available in digital form and tools to organize their provisions for a non-specialist are rare, even though there is substantial demand for such tools from public officials, lawyers, non-governmental organizations, students, etc.  Constitute can be used by such individuals to learn about their constitutions.  Want to know if your constitution protects freedom of religion or the right to health care or even the rights of breast-feeding mothers?  Just search for the term you are interested in, using either a topic or free text search, and filter the results to display only the country where you reside.   (For the curious reader, note that only Ecuador’s constitution mentions the rights of breast-feeding mothers.)

Constitute will increase transparency in countries throughout the world by ensuring universal access to the world’s constitutions.  We expect that access to these important documents will improve constitution-making as well as empower the general public to play a more active role in their country’s governance.

Constitute was made possible by the support from Google Ideas and the Indigo Trust.

McKay Commission Report: Parliament on the Sidelines … Again

28th March 2013

In a couple of earlier posts (here and here), I looked at the creation and operation of the McKay Commission on the West Lothian Question, criticising the fact that it was set up unilaterally by the Government, despite dealing with a core issue of parliamentary procedure.

Sadly, its newly-published report confirms this executive-centred approach to parliamentary reform.  The key section entitled ‘next steps’ (paras 248-9) contains phrases like “We envisage that the Government would first make an assessment of our proposals and put before the House..” and “When the House has expressed its views, we suggest that the Government should move for a select committee to advise the House on the details..”

Announcing publication of the report on 25 March, ministers said: “We will consider seriously and constructively this report and provide a substantive response to it in due course.”

The initial response from parliamentary officers and committees was ….. [fill in the blank].

Presumably Parliament is expected, as usual, to sit back quietly and wait for its executive masters to work out how it should operate.  The idea that one of the Commons’ select committees dealing with House matters (given the current Political & Constitutional Reform Committee’s inquiry into the ‘Wright Committee reforms’, we currently have 2 of them, ie it and Procedure Committee) should do a brisk inquiry into the subject of WLQ and the McKay Report, independently of Government’s own deliberations, is presumably far too revolutionary for the current House.  Ditto for some sort of initiative of this sort by the Speaker.

Or perhaps they will surprise us all?

What will become of the May 2015 UK Parliament if Scotland votes “Yes” on independence?

23rd March 2013

Every so often – but not very often – a major theme enters the national debate which nobody noticed much at first, but when attention is drawn to it, it becomes completely obvious.  This topic is one such we are pleased to  reprint, on how a referendum vote in favour of Scottish independence in September 2014 could greatly complicate the options for transitional UK government up to the general election in May 2015 and even more, the composition and form of the UK government thereafter.  The constitutional and political implications could be as fundamental for the reduced UK as for the departing Scotland.  The scenario is laid out in the Ballots and Bullets blog of the School of Politics and International Relations in Nottingham University. The authors are  Prof Ron Johnson of Bristol University, a leading authority on constituency boundaries and consultant on the proposed boundary changes in 2010;  the electoral geographer Prof Charles Pattie and David Rossiter, both of Sheffield University.
Ron was an expert commentator on the Conservative’s plan – aborted by the Lib Dems – to reduce the number of parliamentary seats by 50 and redraw boundaries to create constituencies of roughly equal size. The same team also warned that this policy would undermine” the underpinning of British representative democracy – that members of Parliament represent places with clear identities.”
The timetable for a Scottish Independence referendum in October 2014 and, if that is successful, implementation of the decision in March 2016 overlaps that of the fixed cycle for elections to the UK Parliament, for which the next general election will be held in May 2015. Governing the UK during that inter-regnum (when there will still be 59 Scottish MPs) will be difficult, as may forming a government after the May election, plus sustaining it after those 59 MPs depart in March 2016. And then there is the House of Lords…

Although opinion polls currently indicate declining support for Scottish independence, 18 months is a very long time in politics. Groups of civil servants are undoubtedly now working in both London and Edinburgh on the myriad issues that would have to be resolved should there be a positive vote in October 2014. Does their agenda include the following scenario?

  • Scotland votes clearly for independence, to occur – according to the SNP’s current timetable – in March 2016;
  • In May 2015 there is a UK general election (when Scotland is still a member of the UK). Labour wins 330 seats in the 650-member House of Commons, a majority of 10 over all other parties. Its complement of 330 includes 40 of Scotland’s 59 MPs. Labour forms a government; and then
  • In March 2016, the break-up of the United Kingdom occurs. The House of Commons is now reduced to 591 MPs, with Labour having 290; it no longer has a majority.

What would happen then?

Labour may go on governing – it would be only just short of a majority and, given that Sinn Féin MPs do not take their seats (and also that there are five of them then, as now), it could well get its business through. Alternatively it may reach an accommodation with one or more other parties – maybe even a LabLib pact (a full coalition is less likely).

If at some stage Labour loses a vote of confidence, however, then the procedures set out in the Fixed Terms Parliament Act, 2011, come into play: there may be a premature general election. And if that happens before late 2018, such an election would be held in the current 591 English, Welsh and Northern Irish constituencies – created using electoral data for 2000; following the Lords’ amendment to the Electoral Registration and Administration Act, 2013, the Boundary Commissions do not have to deliver recommendations for 548 new constituencies in those countries until October 2018.

Having voted for independence, however, the Scottish electorate may decide to send many more SNP MPs to Westminster in May 2015 – why vote for the parties of the now-rejected Union? Indeed, why vote at all?  It is doubtful that Labour could win a majority in England and Wales alone so David Cameron’s hopes of a Conservative majority over Labour and the LibDems in 2015 would be enhanced if very few Scottish MPs were elected to represent those two parties.

In addition, 11 of the Liberal Democrats’ current 57 MPs represent Scottish constituencies, so much will depend on how the soon-to-be-independent Scots vote in the 53 seats that currently return a non-SNP MP and how the MPs who replace them vote in the Commons during that inter-regnum (would they join with Labour and the Liberal Democrats in voting against the Queen’s Speech, for example, or just abstain?)

That might be a bit – perhaps very – messy, at a time when continuity and stability will still be preached as necessary conditions for economic recovery. As interesting – and potentially very controversial – will be what happens between October 2014 and March 2016, and especially between May 2015 and the latter date, whichever party (or parties) are in power. The government is already concerned about, and seeking a resolution to, the West Lothian problem: it will be magnified many-fold during that inter-regnum.

Once Scotland has voted for independence, what role should Scottish MPs play at Westminster during the following 18 months? Some might argue they should no longer participate – certainly not in its votes, though, of course, they should continue to represent their constituents’ interests that are covered by the transitional UK government (just as Sinn Féin MPs do now). But Scotland will still be a member of the UK and decisions will be taken during those 18 months on which they should have a say: what if the UK government recommends that the country goes to war somewhere in December 2014?

Would Scottish MPs agree to vote on a restricted range of issues only? Could agreement be reached on what those issues are? If not, would the government legislate to limit Scottish MPs’ roles in the House of Commons – perhaps with opposition support (the Conservatives, Labour and the Liberal Democrats are all opposed to the break-up of the Union)?

And what of the House of Lords. What would happen to the Scottish hereditary peers? The 1800 Act of Union allowed the Irish peers to elect 28 members to the Lords. None were elected post-independence, but also none were required to relinquish their seats, with some remaining members of a ‘foreign’ Parliament until their death, which for one Irish peer was as late as 1961. A similar situation occurred after the Act of Union with Scotland in 1707, when the Scottish peers were entitled to elect 16 of their number to sit in the Lords. From then on all new peers were appointed to the Peerage of Great Britain (as were a few peers created after 1922 who took Irish titles). All Scottish peers were entitled to sit in the Lords under the Peerage Act, 1963, and became part of the electorate after most of the hereditaries lost their seats under the House of Lords Act, 1999. There is thus no Scottish hereditary peerage, merely a UK Peerage, and it would presumably be up to those who, post-independence, considered themselves Scottish rather than UK citizens to withdraw from the hereditary electorate.

Of course, all peers are now appointed for life, and many of those currently occupying the House of Lords benches have some Scottish links. But could a separate ‘Scottish Life Peerage’ be defined to identify them? On what criteria – residence (first, or second)? Some may self-identify and withdraw but others, like their Irish predecessors, may decide to stay. How could they be removed? Could a generic Act be conceived, or would there have to be a series of ad hoc pieces of legislation? And when it was all settled – it might take some time – would the Prime Minister then replace them with a new tranche to maintain the currently-desired party balance?

Uncertainties abound, but governing the UK may be very difficult during the transition period, even if there is good will on all sides.

Ron Johnston is Professor of Geography in the School of Geographical Sciences at the University of Bristol, Charles Pattie is Professor of Geography in the Department of Geography at the University of Sheffield, and David Rossiter.