This post aims to explore the relationship between the lack of formal constitutional amendments in Japan and the general public’s perception of the Constitution by focusing on public surveys and education. Pacifism, embodied in the preamble and Article 9 (renunciation of war), has been cherished by the Japanese people. Despite promises to that effect, the Liberal Democratic Party (LDP), Japan’s longest-ruling party, has, so far, failed to change Article 9. Is it because of the Japanese people’s appreciation, or even idolatry, of their Constitution or perhaps because pacifism has become part of the national identity and culture?
Constitutional longevity: in form or reality?
The Constitution of Japan has not been amended since it took effect on 3 May 1947. Does this mean that the Constitution is so perfectly written that there is no need to do so or have other methods of updating, in particular interpretation, been used to ensure fulfilment of desired governmental objectives?
Since its establishment in 1947, the Supreme Court of Japan (SCJ) has invalidated only ten statutes of the Diet (the legislature). The SCJ has not dared to use the strong power of judicial review created by the Constitution to check the constitutionality of politically delicate questions. However, the Cabinet Legislation Bureau (CLB, the internal advisor/reviewer to the Japanese government) has dutifully checked the constitutionality of every government bill and maintained consistency in the interpretation of the Constitution, including Article 9. In 2013, however, the government replaced the head of the CLB with a diplomat who did not have any experience within the CLB (former CLB heads were all promoted internally). He supported the government-favoured interpretation of Article 9 that allowed Japan to use the right of collective-defense even though this seemed at odds with the explicit wording of Article 9. This change in constitutional understanding ( the 2014 Cabinet Decision ) enabled the LDP government to pass legislation allowing the government to send the Self Defense Forces (SDF) when allies are attacked (formally this was considered unconstitutional).
The LDP has pledged to amend the Constitution, arguing that it is based on an earlier draft directed by the American Supreme Commander for the Allied Powers (SCAP) during its occupation period. As such, the free will of the Japanese people was not reflected in the Constitution. It has published several amendment proposals , but none have been submitted to the Diet as yet. One of the reasons is that the constitutional amendment clause (Art. 96) requires a popular referendum (a simple majority) as well as a concurring vote of at least two-thirds of all the members of each House of the Diet. The LDP has not been confident about clearing the popular referendum threshold. Thus, public opinion plays an important role in protecting Constitutional values, such as pacifism.
Public perception
Every Constitution Day (3 May), a national holiday, mainstream media publish the results of a public survey on the Constitution. Typical questions concern whether the Constitution should be amended, especially whether Article 9 (renunciation of war) should be amended.
According to a 2017 poll ( English summary ) conducted by the Japan Broadcasting Corporation (NHK), public understanding of the Constitution has improved. The percentage of people who correctly picked the subjects covered in the Constitution from among six choices – popular sovereignty, respect for fundamental human rights, renunciation of war, national holidays, the prohibition of alcohol for minors and the national anthem (the first three choices are correct) – increased from 35% in 1974 to 51% in 2017.
The same poll also showed that 82% of people are proud of the present pacifist Constitution. Seventy three percent believe pacifism has been established in Japan, up from 58% in 1974. More than 80% think that Article 9 is useful for Japan’s peace and security, and 57% do not consider it necessary to amend Article 9 (25% think it is necessary to amend it).
The popular support for Article 9 partially comes from Japan’s experience with war and normative constitutionalism. The latter is based on post-World War II international idealism – which the Japanese compulsory education emphasizes. At the same time, there is widespread popular support for the SDF, based on the role it has played during natural disasters. Thus, most Japanese citizens now consider the Self-Defense Forces useful (80%) and constitutional (60%) despite the fact that their constitutionality was once at the heart of heated constitutional debates. As natural disasters, such as earthquakes, typhoons and flooding, frequently hit Japan, the SDF’s contribution is evident. Since its establishment in 1954, the SDF has never participated in military combat; thus popular support for the SDF is based on descriptive constitutionalism (de facto contribution).
Another interesting feature of the aforesaid survey is that it demonstrates that public attitudes towards government decisions and policies often change. In 2002, 58% of respondents found constitutional amendment necessary, up from 35% in a previous poll in 1992. In the 1990s and 2000s, particularly because of the Gulf War and “War on Terror” after 9/11, the government wanted to use the SDF to support US military operations. This triggered further constitutional debate. Some academics agreed with the state, arguing that making an international military contribution is legitimized by the constitutional principle of internationalism (Preamble and Article 98). Others argued that any form of military support was contrary to Article 9. However, the support for amendment dipped in 2012 with the publication by the LDP of a draft amendment proposal. The proposal envisaged significant changes, including establishing a national army, abolishing the Western concept of human rights, strengthening traditional family values and lowering the difficulty of constitutional amendment from two-thirds majority of all the members of each House of the Diet to a simple majority. The public has since taken a more cautious attitude towards amendment. As a result, the percentage of those who found constitutional amendment necessary decreased to 43% in 2017. This year’s Constitution Day surveys showed the same tendency: necessary 43% and unnecessary 46% (Asahi Newspaper); necessary 49% and unnecessary 48% (Yomiuri Newspaper); necessary 36% and unnecessary 48% (Mainichi Newspaper).
Education
What can explain the Japanese people’s understanding of and support for the Constitution? Following the promulgation of the current constitution, there were ceremonies and awareness-raising events, textbooks published and memorabilia issued (by government and the private sector). Under the influence of the occupation officials, the Constitution Popularization Society (CPS) was established in December 1946. It was headed by Hitoshi Ashida, then a member of the House of Representatives (the lower house of the Diet), who later became Prime Minister. The CPS held seminars and lectures for public servants and the general public, published textbooks and promoted activities to increase interest in the Constitution. The CPS even asked the three major film companies to produce films on three constitutional themes: equality of men and women, popular sovereignty and the renunciation of war.
The government considered education about the Constitution important, not only because it would familiarize the Japanese people with its content but also because it saw it as essential for developing public citizens (komin) who could understand and support democracy. The Story of the New Constitution (Atarashii Kenpo no Hanashi), a textbook for junior high school first-year students, published by the Ministry of Education in 1947, is a good example. Some illustrations in the book remain popular, and contemporary textbooks often reuse them, even though it lost its status as a textbook immediately after the US occupation ended.
The tradition continues. Currently, from year six of elementary school onwards, school textbooks cover various aspects of the Constitution. By way of illustration, students in junior high school read about 35-40 pages concerning human rights and pacifism, and 35-40 pages covering the constitutional institutions (in total, the constitutional issues discussed amount to 40% of the textbook of komin, which is a mandatory subject). High school students can choose to take subjects with titles like Political Economy and Modern Society; the relevant readers include several chapters discussing the Constitution and government institutions (making up roughly one-third of each of the textbooks).
Conclusion
This brief post suggests a relationship between the lack of formal amendment of the Constitution and the general public’s perception of the Constitution. However, the impact of education needs to be analyzed in more depth as public perception has been created through experience and education. The goal of creating a society of people who “desire peace for all time” (Preamble) has arguably been successful as Japan has not been directly involved in any war since World War II. Contrast this with the experience under the Meiji government, during which Japan was involved in the First Sino-Japanese War, the Russo-Japanese War, the Second Sino-Japanese War and the Pacific War as a part of World War II. However, a challenging question that remains is how Japan can contribute to worldwide peace-making efforts. The constitutional debate surrounding Article 9 has become so divided that constructive dialogue has become increasingly difficult. The relationship between the Japanese Constitution as a pacifist text and the Japanese people's identity as peace-loving people is clear. Yet the Japanese people, and in particular academia, need to revisit this relationship in the globalized context of the 21st century, it remains to be seen how they can best do this.
Akiko Ejima is Professor of Constitutional Law at the School of Law of Meiji University, Tokyo
