May 3, 2018 marks the last Constitution Day of the current Heisei era, as Emperor Akihito is set to abdicate in April 2019.
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Seventy-one years have passed since the postwar supreme law came into force. The public must keep scrutinizing whether the Constitution of Japan continues to function sufficiently and whether there is any gap between its provisions and reality in order to hand over a stable constitutional order to the next era.
Just a year ago, Prime Minister Shinzo Abe proposed that the existence of the Self-Defense Forces (SDF) be written into the Constitution's war-renouncing Article 9. He quickened work on the issue by the ruling Liberal Democratic Party (LDP) while provoking the opposition, and after the October 2017 general election the LDP managed to draw up four draft clauses.
However, the commissions on the Constitution in both houses of the Diet are in no position to calmly discuss the matter. This is because the public's confidence in the prime minister, who is the main advocate of constitutional reform, has declined considerably.
The Abe government has been hit by favoritism scandals involving school operators Moritomo Gakuen and Kake Educational Institution, the cover-up of daily logs of Ground Self-Defense Force personnel deployed overseas, and sexual harassment allegations involving a former top bureaucrat. Instead of squarely facing these problems, the prime minister argues excessively against the allegations or blames news organizations. This is largely why the government has failed to extinguish the scandals.
The government's submission to the Diet of doctored documents on the heavily discounted sale of state-owned land to Moritomo Gakuen has shed light on an imbalance of power between the executive and legislative branches. Submitting doctored official documents is nothing but disrespect for the Diet. Nevertheless, the legislature has failed to clarify the cause of the wrongdoing or to settle the matter.
Article 67 of the Constitution provides for a parliamentary system of government in which the Diet appoints the prime minister. At the same time, paragraph three of Article 66 stipulates that "the Cabinet, in the exercise of executive power, shall be collectively responsible to the Diet." This shows that the Constitution expects the Diet to control the Cabinet.
Lt. Milton J. Esman of the General Headquarters of the Allied Powers occupation authority insisted that the postwar Constitution clearly state that administrative authority belongs to the prime minister, who is the head of the Cabinet, instead of the Cabinet as a collective body. Col. Charles Louis Kades, who was responsible for the issue, dismissed Esman's demands, saying that the executive branch should rely on a strong legislative branch, according to a book authored by journalist Akinori Suzuki.
However, a strong legislative branch was never created. In particular, the prime minister's excessive exercise of his authority is conspicuous in the Abe administration.
In August 2017, Prime Minister Abe reshuffled his Cabinet, but ignored opposition parties' demand that a Diet session be convened. After convening a special Diet session following a general election in October, the administration high-handedly reduced time allotted to opposition party questions.
Abe furthermore never hesitates to appoint figures close to him to positions that must be neutral, such as head of the Cabinet Legislation Bureau and various panels of experts.
Political reform that has been carried out since the 1990s, including the introduction of single-seat constituencies to the House of Representatives election system, the establishment of public subsidies to political parties and giving broader power to the prime minister's office have all obviously contributed to the strengthening of the prime minister's authority.
Under the multiple-seat constituency system, other intraparty factions checked the prime minister's own faction, preventing him from exercising excessive authority. However, the prime minister effectively monopolizes the right to officially endorse Diet election candidates from his own party and the distribution of public subsidies provided to the LDP. In the executive branch, ministries' autonomy has been weakened as a result of the increase in the number of Cabinet Secretariat staff members and the power of the Cabinet Bureau of Personnel Affairs, both under the prime minister's control.
Abe's predominance is attributable to his control of both the Diet and the Cabinet. His lack of hesitance in exercising his authority on top of this has significantly altered Japan's constitutional order.
The Diet has functions of making laws and creating a government. At the same time, the Diet monitors the executive branch and plays a role in forming broad consensus. It is true that the Diet is a venue for power struggles, but the governing bloc now looks like nothing more than a subcontractor of the executive branch. This is shown by the fact that LDP legislators, who had trouble actually using up all the increased time allocated to them for asking questions in Diet deliberations, filled those minutes with excessive praise for Prime Minister Abe.
Lower chamber Speaker Tadamori Oshima often says, "Democracy is rule by discussion." To put this principle to effective use under the parliamentary system, it is necessary for the legislative and executive branches to check each other, for opposition parties to wield strong influence and for the prime minister to exercise self-restraint.
Legislation on the governing system, such as the Public Offices Election Act and the Diet Act, are called laws attached to the Constitution. If the political reforms carried out since the 1990s have unexpectedly warped the country's constitutional order, these laws should be rectified. At the very least, the customary practice of the ruling coalition using its majority in the legislature to suppress the Diet's exercise of administrative investigative rights needs to be reviewed. The strict enforcement of the Public Records and Archives Management Act and the Act on Access to Information Held by Administrative Organs will certainly contribute to stabilizing the constitutional order.
It is appropriate to hold discussions on how to achieve consistency between Article 9, which was created before the Cold War on the premise that the U.N. collective security system would function properly, and the current international environment.
However, constitutional debate that will be truly beneficial to the public is possible only if the Diet remains wholesome. A situation in which a political force prioritizes separating friend from foe and even refuses to recognize objective but unfavorable facts is far from being wholesome. First and foremost, the Diet should enhance its ability to exert control over prime ministerial authority.