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The Brevity of Japan’s Constitution Kenneth Mori McElwain University of Michigan kmcelwai@umich.edu Prepared for Conference: “Is Japan’s Constitution Suitable for the 21 st Century?”, University of Michigan, April 15 th, 2011 1
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Explaining the infrequency of amendments 1.Japan’s constitution is relatively VAGUE Covers fewer topics, and in less detail Allows for more statutory change 2.However, it is also becoming EASIER to amend Electoral reform has increased size of Diet majorities Public opinion backs reform, although fickle Prognosis: Public support linked with (unstable) foreign policy concerns. Revision more likely if bicameralism + decentralization become focal issues 5
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Data: “Comparative Constitutions Project” Elkins, Ginsberg, and Melton (2009) General data: 860 constitutions, 198 states (from 1789) Birth / expiration dates Number + year of amendments # issues covered Specific data: 184 current constitutions 13 categories 61 topics ~800 variables Codes WHETHER constitution specifies a particular provision Codes WHAT the constitution says about provision 6
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How detailed is Japan’s constitution? Measuring “Scope” = % of issues mentioned 7 Sample Categories Elkins, Ginsburg, Melton sample = 92 issues ExecutiveDecree power; war power; immunity; replacement LegislatureElection method; political parties; special bills (tax, budget) JudiciaryConstitutional review; interpretation; independence SocietyEducation; religion; civil rights; media EconomyCentral bank; bankruptcy; economic plan (market, socialism)
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Guarantees: Education (4 var.) 10 Stipulate: (% Yes) Access Hi-Ed 30% Free School 64% Acad. Freedom 33% Spain, Italy, Brazil [N=24] Japan, Korea, Russia, [N=23] Sweden, India, Taiwan [N=45] Norway, Thai, USA [N=17]
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Guarantees: Civil Rights (15 var.) 11 Stipulate: (% Yes) Censor 40% Privacy 83% Express 93% Press 64% Assembly 92% Germany, Korea, Brazil [N=46] Japan USA, Tonga Australia, Thai, France [N=6]
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Mentioned: Religion (4 var.) 12 Topics: (% Mentioned) Official 44% Freedom 93% Separation 29% USA, Korea, Brazil, Mexico [N=27] Japan, Italy, Brazil, Poland, [N=26] Ireland, Indonesia, Spain, [N=49] France [N=1] Algeria, Saudi Arabia, Yemen [N=6] Austria, NZL, Libya, Thailand, [N=5]
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Mentioned: Judiciary (16 var.) 13 Topics: (% mentioned) Any crts 99% Special crts 23% Independ 78% C Review 33% Fiji, Swaziland [N=3] Austria, Germany, Korea [N=27] Japan, Eritrea, Bhutan [N=3] USA, Canada, Nauru [N=14] France, Sweden, Brazil [N=57]
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Mentioned: Political Institutions (27 var.) 14 Electoral System LH ruleLH quotaUH ruleUH quota % of total, (in Japan?) 46% (No) 17% (No) 79% (No) 66% (No) Executive Powers DecreeTerm LimitDismissalVeto % of total, (in Japan?) 62% (Yes) 34% (No) 96% (Yes) 86% (No)
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Propensity for future amendments? 18 Japan has benefited from peace and prosperity Cold War minimizes global / regional conflict Constitutional legacy of Meiji (never amended either) Low social / cultural heterogeneity, high economic growth Political consistency under LDP But the constitution has also been stretched pretty thin Article 9 Malapportionment & electoral fairness Decentralization of fiscal / administrative powers
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Is the amendment process prohibitive? UnamendQMVInterveneReferendumLocal 25%64%22%58%15% Subsample of 55 democracies 21 2/3 QMV (n = 23)Required Ref (n = 9) Japan, Korea, Iraq Referendum process only determined in 2007
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Why institutional structure matters 1947-1993: MMD-SNTV Semi-proportionate electoral system Small changes in vote share medium changes in seat share Encourages parties to splinter multi-party system 1955: Liberals and Democrats merge LDP 1956: Hatoyama tries to switch the electoral system Wants to amend Article 9 First-past-the-post would generate large super-majorities 24
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Why institutional structure matters 1994- : “mixed-member majoritarian” More disproportionate electoral system Small changes in vote share large changes in seat share Less malapportionment Plurality party should win 50%, plausibly 66% of seats 2005: LDP = 61.7% 2009: DPJ = 64.2% Caveat: hurdles remain in Upper House, which produces more proportional results 27
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LDP 2005 proposal: Making amendments easier! Article 9: Peace Clause Maintain a Defense Army (not “SDF”) Permit forces abroad to… Protect Japanese lives Participate in internationally-coordinated actions Article 96: Amendment Rule Diet hurdle reduced to absolute majority Keep 50% in voter referendum 28
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So what’s the prognosis? Partisan differences appear relatively small Plurality of LDP, DPJ supporters have backed revision Diet members strongly support revision (70-80%) Caveat: easy to support in abstract 29 % ForIssues interestedIssues to fix DPJLDP 1) SDF, War: 42%1) Decentralization: 30% 41%42%2) Environment: 33%2) Self-defense military: 28% 3) Social insurance: 27%3) Environment: 26% Yomiuri Poll, March 2010
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Revision will be linked to LDP’s fate 32 If amendment hurdle stays at 50%, then revision more likely under LDP LDP supporters more amenable to reform DPJ in coalition w/ SDP against Article 9 change What issues will drive revision? Foreign policy fluctuates too much to be reliable Fiscal decentralization central to current political debate Bicameralism majority supports revision
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Research agenda for constitutional analysis 33 What are the appropriate comparison groups? Common histories, e.g. military occupation, civil war Mimicking Inception date changing roles of state, human rights norms One alternative: compare texts Data: “scope” from CCP Method: Coarsened Exact Matching (Iacus, King, Porro 2008)
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Rate of overlap with Japan [5+ yrs old] 34 TopUSAGermanyFranceBottom 3 All Nauru (70%), Palau, Iceland, Samoa, Tuvalu 48%52%50% Philippines, Colombia, Mexico Civil [21] Poland (90%), Macedonia, Portugal, Albania 48%67%29% France, Australia, Austria Courts [55] Australia (93%), Eritrea, Nauru, Trinidad 73%65%53% Bosnia, Gabon, Portugal Inst. [61] Bosnia (74%), Austria, Belize, Grenada 54%69%63% Costa Rica, Gambia, Kenya
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Bases of Comparison Are there causal relationships underlying similarities? Why so many island countries? Why E. European nations on civil rights? Parallel evolution, or conscious copying? Do textual similarities matter? Constitutions set parameters for legislative / judicial actions But if same actors control all branches, then do constitutions function as institutional constraints?? 36
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