CHALLENGES FOR CONSTITUTIONAL PRACTICE:
SUMMARY OF ISSUESBASED ON A SERIES OF INTERVIEWS WITH THE FORMERHEADS OF THE THREE BRANCHES OF THE GOVERNMENTAPRIL 2019

WORKING GROUP ON CONSTITUTIONAL PRACTICECOLLABORATOR: PHP RESEARCH INSTITUTECHALLENGES FOR CONSTITUTIONAL PRACTICE:
SUMMARY OF ISSUESBASED ON A SERIES OF INTERVIEWS WITH THE FORMER HEADS OF
THE THREE BRANCHES OF THE GOVERNMENT■ ■ ■WORKING GROUP ON CONSTITUTIONAL PRACTICEMEMBERS:OHISHI, Makoto (Chair)
Professor Emeritus
Kyoto University

OYAMA, Reiko
Professor of Political Science
Komazawa University

YAMAMOTO, Hajime
Professor of Law
Keio University

SOGABE, Masahiro
Professor of Law
Kyoto University

ONISHI, Sachiyo
Professor of Law
Ritsumeikan University

COLLABORATOR: PHP RESEARCH INSTITUTETABLE OF CONTENTS

Agenda and Overview
Background of the Working Group・・・

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1 Objective of the working group・・・

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2 Activities and outcomes of the working group・・・

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3 Publication of outcomes

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1 Introduction

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2 Relationship between the legislative and executive branches

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3 Relationship between the judicial branch andthe legislative and executive branches・・・

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4 Other issues that have emerged as crucial challenges

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Challenges for Constitutional Practice:
Summary of Issues

Challenges for Constitutional Practice:
Summary of Issues Based on a Series of Interviews with theFormer Heads of the Three Branches of the Government
Working Group on Constitutional PracticeMembers: OHISHI, Makoto, Professor Emeritus, Kyoto University (*Chair)
OYAMA, Reiko, Professor of Political Science, Komazawa University
YAMAMOTO, Hajime Professor of Law, Keio University
SOGABE, Masahiro, Professor of Law, Kyoto University
ONISHI, Sachiyo, Professor of Law, Ritsumeikan University
Collaborator: PHP Research InstituteAgenda and Overview
1.

Constitutional debate on a national scale is crucial. In addition to obtaining adequate
feedback from the sovereign people, smooth deliberation is needed to reflect on the
direction of the country in light of the realities of constitutional practice.

2.

In understanding ‘constitutional practice’, we should respect and embrace theempirical knowledge of the former heads of the three branches of the government,
who were once at the helm of constitutionalism in the legislative, executive or judicial
institutions. However, such knowledge used not to be fully visible to the outside.

3.

This working group was set up as a forum for joint discussion to shed light on theactual operation of the Constitution and the realities of constitutional practice.
Members included researchers with an interest in constitutional law andparliamentary politics. Eleven working group sessions were held to gain valuable
insight and empirical knowledge regarding constitutional practice from the former
heads of the three branches of the government.

4.

Through the discussions, the working group found that ‘constitutional practice’driven by the heads of the three branches of the government is the key collective
entity integrating attached organic laws, as well as constitutional and judicial
precedents, whose empirical knowledge comprises extraordinary insights that should
be highly respected and taken seriously in considering constitutional issues. The
group also identified a new approach to the discussion of constitutional law going
forward, including on the direction to be followed in the discussions on constitutional
issues and the underlying perspective to be adopted in the discussions.

5.

In this context, the group decided to prepare for the publication of a ‘Summary ofIssues’ regarding the challenges for constitutional practice based on the empiricalknowledge of the former heads of the three branches of the government. The grouphopes that the Summary will assist further deliberation on the Constitution going
forward.

Background of the Working Group
1. Objective of the working group
Dawn of a new trend of constitutional debate
The working group considers that in practice, the Japanese Constitution is applied
basically through the constitutional provisions, i.e. the Constitution of Japan enacted in1946 and never amended since then. It is supplemented by attached organic laws
including the Imperial House Law, the Diet Law, the Cabinet Law, the Court Act and the
Local Autonomy Act, as well as unwritten constitutional precedents and the Supreme
Court’s precedent to give shape to constitutional practice. This canon of mixed
constitutional structure should be an important focus of attention. However, discussions
on constitutional issues tend to focus mainly on the interpretation of the provisions of thewritten constitutional code and their validity. Constitutional debate thus far has alsotended to highlight specific areas, but a new dimension of debate will be required going
forward, in view of the historical development of the unwritten constitution led by thethree branches of the government – legislative, executive and judicial. Constitutional
issues represent crucial challenges on a national scale. In addition to obtaining adequate
feedback from the sovereign people, smooth deliberation is needed to reflect on the future
direction of the government.
Respect for empirical knowledge on the realities of constitutional practice
The working group also considers that the realities of constitutional practice have been
accumulated through the operation of the legislative, executive and judicial branches of
the government, but are rarely made available to the outside. In understanding suchrealities, we should highly respect and embrace the empirical knowledge of the heads ofthe three branches of the government, who were once at the helm of constitutional practicein the legislative, executive or judicial institutions, in our constitutional debate going
forward.
For discussions on how constitutional practice should be in the future, it would be highly
beneficial to have a forum for deliberation on the Constitution of Japan, attached organic
laws, as well as constitutional and judicial precedents among those who, after their
distinguished careers as leading actors in constitutional structure, have been considering
the future direction of Japan from a broad, supra-partisan perspective. Facilitating free
discussions among persons who fulfilled great responsibilities as heads of the threebranches of the government is expected to be highly useful.
Creating a deliberative forum
The working group was organised mainly by researchers in constitutional law andparliamentary politics as a forum for such deliberation and conversation. It was expected
to invite former heads of the three branches of the government to share their empiricalknowledge and insight built on experience, and to develop them into collective wisdom
to guide the future direction of discussion, and basic perspectives on constitutional issues
through deliberation. Thus, it was intended to be a forum for joint discussion to shed lighton the operation of constitutional provisions and constitutional practice.

12. Activities and outcomes of the working group
Activities
The working group, launched in October 2016, brought together Makoto Ohishi (Chair,Mr.), Reiko Oyama (Ms.), Hajime Yamamoto (Mr.), Masahiro Sogabe (Mr.) , Sachiyo
Onishi (Ms.), who have a keen interest in constitutional practice. With the intention ofcarrying out activities for two years, it held 11 sessions by April 2019. It was based in
Kyoto, in order to ensure smooth deliberation and avoid becoming involved in politics,
and it benefited from the generous support of PHP Research Institute to bridge the gaps
in financial and other resources.
The working group also invited guest speakers: six former heads of the legislative,
executive or judicial branches of the government (including acting heads), who haveretired as members or Justices after gaining much experience in constitutional practice inthe latter half of the Heisei era (2007-2019), and who shared their empirical knowledge
through reports. In particular, Mr. Satsuki Eda, a former President of the House ofCouncillors (the Upper House), provided valuable support in inviting guest speakers.
However, we refrain from naming the other speakers for they were invited on condition
that they would remain anonymous.
Outcomes
The working group was given a unique opportunity to hear from key actors inconstitutional structure with experience in leading the three branches of the government
about the realities of constitutional practice that they had shaped and their distinguishedempirical knowledge. There have been no other cases of such smooth deliberation on
constitutional practice with input from the heads of the three branches of the government.
In Japan, each head – both current ones and former ones – does not have any official
opportunity to have a conversation face to face and share their insights, even though they
may get together unofficially on rare occasions, including at some events hosted by theEmperor. Due to their busy schedules, it was impossible for the guest speakers to gather
in a single session, obliging us to hold separate interviews, but the group succeeded indirectly hearing about the realities of the Constitution. This is our first achievement.
The Constitution of Japan emphasises the separation of powers and independent
relationships among the legislative, executive and judicial branches, with proper checks
and balances among them. In reality, however, the heads do have points of face-to-facecontact that are not explicit in the constitutional provisions, with observable cases ofmutual understanding and cooperation. The traditional discipline of constitutional law has
focused on the interpretation of the provisions of the Constitution of Japan. Not only theexisting constitutional structure but also the interpretive approach are largely unknown in
the legal academic literature. Remarks by the former heads of the three branches at theworking group sessions yielded many new discoveries about the realities of
constitutional practice. Although such insights might have been shared with practitioners,
the Summary of Issues based on the talks of the former branch heads seems to have helped
disseminate the insights as research information. This is our second achievement.

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The former heads not only lead their respective branches but also stand at the top of thewhole government. We were impressed to learn that all the guest speakers met their great
responsibilities with awareness of the importance of their power, mandate and authority
and exercised them in a coordinated manner as the proper way to ensure that theconstitutional structure functions smoothly. The political system of modern democracy
sometimes precipitates unilateral majority decisions, with the risk of self-righteous
operation in extreme cases. It may be said that democracy within the context of theConstitution of Japan was enriched by the practice of the heads seeking common groundbetween majority and minority to explore compelling conclusions in the eyes of most of
the people. Although this ‘self-awareness’ among the key figures in constitutional
practice is not explicit in the Constitution of Japan, our third achievement is that we
gained the understanding that it is indeed embedded in the current constitutional structure.

3. Publication of outcomes
New discoveries from the ‘empirical knowledge of the six former heads’ andthe Summary of Issues
The working group witnessed part of the vibrant scene of constitutional practice that is
only visible to the former heads of the three branches of the government. Constitutional
practice as acted out by the heads is a collective entity comprising attached organic laws,
constitutional and judicial precedents, as well as the constitutional provisions. In thisrespect, their empirical knowledge provided extraordinary insights that are worthy of
substantial attention as a key constitutional issue. The members of the working grouplearned much and were inspired at each session from the talks and ensuing discussion.
The sessions also allowed them to discover new issues to be addressed in discussions on
the Constitution, parliamentary politics and the Supreme Court’s precedent going forward.
In concluding its activities, the working group decided to summarise the issues regarding
necessary viewpoints for deliberation on the direction to be adopted for constitutional
debate based on the collective wisdom obtained through discussion with the former headsof the government, and to publish them as ‘Challenges for Constitutional Practice’ alongwith the comments of individual members. The working group thinks this is of great value,
creating a basis for more developed constitutional debate in the years ahead.
It should be noted that the guest speakers were invited on condition that the details of the
discussions at the sessions would not be made fully public. In publishing the outcomes,
therefore, it was decided not to attribute any remarks to a specific speaker, and tosummarise the issues on the working group’s own account (please refer to Summary ofIssues below).
Next steps
Not all issues of constitutional practice were fully elucidated in the activities of theworking group over the two years. Although a gender balance was achieved among us, it
could not invite any female guest speakers as there are very few women who have served
as the head of one of the three branches of the government. Hopefully, the working groupwill see the launch of the second and third rounds of meetings or a separate initiative with3

similar interest. In future, some former heads of the three branches of the government
might gather at the same meeting to engage in a candid exchange of opinions based on
their valuable experience. Also, people interested in the operation in general, and not only
researchers in constitutional law and parliamentary politics, might initiate similar
discussions on constitutional practice. It would be beneficial for the discipline ofconstitutional law to seek further collaboration with institutional actors involved in its
practice, based on the theory of constitutional interpretation supported by compelling
facts and robust logic.
The working group strongly hopes that the outcomes of the group will help demonstrate
wisdom regarding constitutional practice in a more organic manner for further
deliberation on constitutional matters.
Finally, the working group would like to extend its heartfelt gratitude to the guest speakers
who shared their extraordinary insights, understanding the objective of our rather
iconoclastic attempt to elucidate the realities of the Constitution from a novel and original
approach focusing on the empirical knowledge of the heads of the three branches of thewhole government, as well as all those who supported our activities in every possible way,
including Mr. Yoichi Eda, the former Executive Secretary to Mr. Satsuki Eda, thePresident of the House of Councillors. The empirical knowledge of the heads of the threebranches of the government was more than we could have imagined. Once again, we
sincerely thank the guest speakers, who met their great responsibilities by tackling thecomplex challenges for constitutional law and politics head on.
The working group would also like to express its great appreciation to PHP ResearchInstitute, especially Mr. Masafumi Kaneko and Dr. Toshio Nagahisa, for their sincere
support and cooperation in financial matters, arrangement of meeting venues andpreparation of transcripts, as well as publication of the outcomes.

4Challenges for Constitutional Practice: Summary of Issues
The empirical knowledge and insights shared by the former heads of the three branchesof the government – legislative, executive or judicial – covered a wide range of subjects
including: practical activities as the ‘head’ of each branch and the roles of supporting
institutions and officials; unwritten constitutional precedents prevailing in each
institution; the intent of ‘one of the three institutional actors in the whole government inexercising its constitutional authority’ and interaction among the institutions. Specifically,
the following issues were taken up for discussion.
First, regarding the relationship between the legislative and executive branches, the issues
included: the change of government and parliamentary government; bicameralism andthe implications of the ‘divided Diet’; the feasibility of changing the position as majority
and minority in each house; the exercise of the power to dissolve the House ofRepresentatives (the Lower House); the power of each House to investigate
administrative matters; appointments of senior officials requiring the consent of the Diet;the roles of the ruling and opposition parties; initiatives of politics handled by the Cabinetor the members of the Diet; bills submitted by members of each House and bills submitted
by the Cabinet; and the purpose of international cooperation and contributions. The
discussions also extended to the internal problems of the each branch. As regards thelegislative branch, such issues included: parliamentary procedures and proceedings;
electoral system; the roles of each House; and the supremacy of the House ofRepresentatives versus the powerful House of Councillors. With regard to the executive
branch, issues included the role and operation of the Cabinet.
Second, regarding the relationship of the juridical branch with the legislative andexecutive branches, the issues included: the approach to constitutional interpretation of
the Supreme Court as observed by the legislative and executive branches, and response
to rulings of the Supreme Court on the unconstitutionality of the government. For the
judicial branch, issues included: relationships among the Chief Justice of the Supreme
Court, other Justices and the General Secretariat of the Supreme Court; and the
management of panels to discuss judgements, etc.
Third, regarding the overall picture, the issues included: the roles of the Diet (and/orHouse of Representatives and House of Councillors), the Cabinet and Supreme Court as
major actors in constitutional practice; the roles of subsidiary bodies and staff; document
management and information disclosure; the constitutional settlement of political parties;
relationship with the Emperor and the Imperial Family; the operation of the Diet, Cabinet
and Court in a globalised society; the relationships of the constitutional code with attachedorganic laws, precedents and the case law; and the future direction of discussion on
constitutional reform.
Based on the empirical knowledge and insights of the former heads of the three branchesof the government, the working group summarised the issues related to the challenges forconstitutional practice. Future discussions on the Constitution of Japan should preferably
take the form of deliberation taking the following matters into account.

51. Introduction
Relationships among the constitutional code, attached organic laws, andconstitutional and judicial precedents in the framework of constitutional
practice
Practical implementation of the Constitution is based on the constitutional provisions. It
also takes the form of constitutional politics, supported by attached organic laws,
precedents, the unwritten constitution and the case law. In Japan, constitutional issues
typically involve the interpretation and application of the provisions of the constitutionalcode, and whether their amendment or repeal is right or wrong is debated, butconstitutional debate should also consider its canons and the realities of constitutional
practice.

2. Relationship between the legislative and executive branches
Parliamentary government and bicameralism The Constitution of Japan assumes the possibility of a change of position of the
majority and minority in each house of the Diet, and hence the possibility of changesof Cabinet and government. Based on this assumption, any changes of Cabinet andgovernment raise the issue of how to ensure continuity of policy through a smoothtransition. The possibility of such changes also requires action to reduce the policy
information gap between the ruling and opposition parties.
 The Constitution of Japan assumes the possibility of a ‘divided Diet’, where different
parties form a majority in the House of Representatives and the House of Councillors.
In the event that the ruling and opposition parties change places, both should provide
the wisdom obtained in their former positions for the operation of each House if
constitutional practice is to navigate through the change of government.
 When the Diet malfunctions due to sharp divisions between the ruling and opposition
parties, the leadership of the Speakers and the President of each House and the Prime
Minister in breaking the deadlock is institutionally limited. Parliamentary
management and system reform are needed to demonstrate the significance ofbicameralism through the advancement of joint meetings to deliberate and discuss
consensus-building in the Conference Committees of both Houses.
 Each of the Houses should be managed so that the power to investigate administrative
matters functions adequately. Furthermore, it is important to promote the disclosureof information held by government, as well as the proper preparation, management
and storage of government archives.
Role and operation of the legislative branch The legislative branch, dubbed the ‘forum for debate’, should further evolve thediscussion method to allow sufficient time for deliberation and for listening tominority opinions, in order to build consensus, instead of rushing to majority ruledecisions.
 It should not be forgotten that under a parliamentary government, the legislative
branch is also the ‘forum for decisions’. This is why the Constitution paves the way

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for the House of Representatives to re-adopt a bill rejected by the House ofCouncillors. Since this mechanism only works where the ruling party has a qualified
majority of at least two thirds in the House of Representatives, care should be taken
not to drive the ruling and opposition parties to a stalemate.
The core part of the legislative process is implemented at informal forums outside
the Diet, such as a preliminary review by the ruling parties and multiparty
consultation for amending a bill outside the Committee of each House. It is important
to examine the possibility of opening these processes of building consensus so thatconflict points and discussions to break the deadlock become widely known.
Both Houses are required to disclose to the general public the information materials
presented or distributed to members in their committee deliberations, in addition to
publishing the minutes of the House.
In exercising the power to investigate administrative matters, each House should
consider ways to respect the opinions of minority parliamentary groups, while
recognising the importance of unanimity in exercising any such power.
Parliamentary reform is at a standstill. Each House, and the Diet as a whole, urgently
need to review their election system and time period for election campaigning, as
well as rules and procedures, from the perspective of whether they are fully playing
their roles in democracy, in light of the differences in the roles of the two Houses andtheir members.

Role and operation of the Cabinet
 The Prime Minister’s leadership in the workings of the Cabinet and its relationshipwith the Diet has been exercised in moderation from the perspective of separation of
powers, a key component of constitutional practice. Now, discussion needs to focus
on how it should be exercised going forward or whether the required moderation
should continue to be ensured by the conscience of the Prime Minister, or byinstitutional constraints.
 The exercise of the power to dissolve the House of Representatives has been left tothe sole discretion of the Cabinet. Now, we need to consider whether some kind ofrestraint should be introduced, such as unwritten rules calling for moderation or
codified written rules.

3. Relationship between the judicial branch and the legislative andexecutive branches
Supreme Court’s approach to constitutional judgement
 Depending on the case to be handled, the Supreme Court should be required toconsider a constitutional commitment of the issue to coordinate legislative andexecutive departments, in addition to its role to make the final legal judgement on
the case in question.
Ruling of Unconstitutionality of Law
 The relevant institution is required to respond to any ruling of unconstitutionality of
the law by the Supreme Court, in light of its role as an actor in the constitutional
exercise of its constitutional authority and in the doctrine of separation of powers.

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Role and operation of the Supreme Court
 Thus far, the acting Chief Justice of the Supreme Court has been designated inaccordance with internal regulations and precedents. Given that the scope of duty forthe acting Chief Justice is invisible and that the Supreme Court also plays a role in‘judicial administration’, however, it is recommended to improve its governing
structure in preparation for contingencies, including how to respond to the vacancyof the Chief Justice due to an accident.

4. Other issues that have emerged as crucial challenges
Political parties
 Political parties and parliamentary groups place restrictions on their members
regarding the division of roles in the Diet, voting behaviour and the preliminary
review of bills, among others. It is not clear whether these practices are desirable ornot, given that they might detract from the meaningfulness of parliamentary debate.
It is necessary to discuss how those practices should be positioned in the frameworkof parliamentary government and bicameralism.
Sustainable government finance The proper roles played by the Diet, the Cabinet, the Supreme Court and the Board
of Audit in order to ensure the sustainability of government finance should be
examined.
Relationship between the Emperor and actors in the whole government
 By the constitutional precedent, the heads of the three branches of the government
have an audience with the Emperor in the Imperial Palace at the time of their
appointment. The heads rarely get together except on the occasion of events held at
the Imperial Palace, such as Their Majesties’ New Year Reception and Niinamesai(rice-harvesting ritual performed by the Emperor to give thanks for good harvests),
as well as some of the events attended by the Emperor, including the Memorial to the
Nation’s War Dead. It would be worth reconsidering the approach to such rituals.
Operation of the Diet, the Cabinet and the Supreme Court in a globalised
society Discussion is needed on: how we should distinguish among relationships withforeign countries and international organisations, Imperial diplomacy andparliamentary members including the Speaker, the President and members; how weshould position involvement in and the control of international administration andframeworks within constitutional practice; and above all, how we should address thedivision of roles among the three branches of the government in responding to
globalisation of the world.
Procedures to amend the Constitution (constitutional provisions) It should be discussed whether the process of amending the Constitution requires thesame procedure as ordinary legislative procedures (for the enactment and revision of8

laws), i.e. a review by the ruling party, followed by the preparation of bills bylawmakers, restrictions on party debate and voting. It is necessary to consider a better
way, including a new technique of lawmaker-initiated legislation, such as the
preparation of bills by a supra-partisan project team and/or a joint meeting of themembers of both Houses, for example.

References
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The Constitution of Japan
https://www.ndl.go.jp/constitution/e/etc/c01.html
The National Diet of Japan
https://www.sangiin.go.jp/eng/pamphlet/pdf/english/2703-all.pdf
Prime Minister of Japan and His Cabinet
https://japan.kantei.go.jp/
Government Directory
https://www.japan.go.jp/directory/#cabinet
Court System of Japan
https://www.courts.go.jp/english/vcms_lf/2018_Court_System_of_Japan.pdf

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