May 14, 2007 will be a significant milestone in the history of Japanese constitutionalism: on this day, the long-term efforts of the conservative camp of Japan aimed at preparing an audit of the current Constitution of the country were crowned with a concrete result.

A year earlier, in May 2006, the ruling Liberal Democratic Party (LDP), with the support of the New Komeito Party and the opposition Democratic Party (DP), submitted to the House of Representatives (lower) of the Parliament a "Bill on a people's referendum and procedures for expressing the Will to amend the Constitution of Japan and important national policy issues"¹. After a series of discussions, approvals, etc., the final draft was submitted to the Chamber for voting in April 2007 and was approved. And on May 14, it received approval in the House of Councillors (upper): 122 votes - "for", 99 - "against". The bill was supported by the LDP and Komeito, independent deputies, while four opposition parties - the PD, the Communist Party, the Social Democratic Party, and the People's New Party-opposed it. It is registered as the "Law on the Procedure for Amending the Constitution of Japan" ² (No. 51, 2007).

BACKGROUND TO THE QUESTION

The current Constitution of Japan was adopted on August 24, 1946 and entered into force on May 3, 1947 (which is why it is usually called the "Constitution of 1947"). It has incorporated many advanced norms and institutions of a modern civil democratic society - liberal human and civil rights and freedoms, freedom of entrepreneurship and respect for private property, electability and responsibility of State authorities, separation and mutual control of branches of government, the rule of law, national sovereignty and pacifism.

The Constitution was developed and adopted after the defeat of Japanese military-feudal imperialism in World War II, when in the context of a general democratic upsurge under the pressure of the allied powers and with the support of the left and liberal forces of Japan itself, the way was opened for eliminating feudal remnants, transferring the country's socio-economic and political system to the rails of demilitarization, demonopolization, and democratization. The adoption of the "Constitution of 1947" actually marked the bourgeois-democratic revolution in Japan, the transition from military-feudal capitalism to a model of highly developed capitalism characterized by a market economy and liberal politics.

Almost simultaneously, in the early 1950s, a political trend was developing, which in historical science was called the "reverse course". Its essence was that the American occupation authorities and the Japanese administration began to implement measures that negated what was done in the process of post-war democratization of Japan. Gradually, the armed forces of Japan began to be recreated, the Japanese state is involved in a military bloc with the United States, opponents of Japanese militarism and representatives of the country's left forces are subjected to repression, they are expelled from the state apparatus, and, conversely, are amnestied

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persons previously convicted as war criminals, etc. Such a course was in clear contradiction with the newly adopted Constitution, its declarations of peaceful policies and liberal freedoms.

Under these circumstances, the "Constitution of 1947" becomes the main political "watershed" in the country, the focus of the confrontation between the left and democratic forces, on the one hand, and the conservatives, on the other. Some were seeking a revision of the Constitution, while others were in favor of preserving the Basic Law unchanged.

In the post-war period, proponents of revising the Japanese Constitution repeatedly tried to initiate a process leading to its revision. But their efforts were frustrated by article 96, which deals with the procedure for changing the Constitution, which states that amendments to the current Constitution are made on the initiative of Parliament with the consent of at least 2/3 of the total number of members of both chambers and are then submitted for approval by the people.

An amendment is considered approved if it is supported by a majority of those who voted in a special referendum. Amendments approved in this way are immediately promulgated by the Emperor on behalf of the people as an integral part of the current Constitution.³

As you can see, in addition to the approval of proposals for its revision by two-thirds of the votes of deputies of both chambers of Parliament, a "special referendum"is also envisaged for changing the Constitution. But in Japan, there was no procedural law that defined the procedure for holding a constitutional referendum. Therefore, the Conservatives already in 1953 made the first attempts to pass this law in parliament, but then they did not succeed, because they were in the minority.

Throughout the post-war period, the "revisionists" failed. And in 1997, their activity received a new serious impetus: for the first time in the past half-century, the number of supporters of revision in society exceeded the number of supporters of preserving the current Basic Law. Their persistence eventually culminated in the adoption of the aforementioned Constitutional Referendum Law in May 2007.

Logically, the question arises to what extent the revision of the Japanese Constitution of 1947 is predetermined: can we assume that the" process has started " and has gone with fatal inevitability? Finally, what are the goals of the "revisionist" camp?

Today in Japan, there are many different projects for revising constitutional norms: political parties, major mass media agencies, parliamentary councils, etc. have put forward their own projects. Therefore, there is no sufficient reason to focus on analyzing any one of them: both behind and ahead are long-term evolution of requirements and approaches, intricate alliances, long discussions, and confusing issues. trade-offs. It is more important to imagine what major issues the opinions of Japan's political actors will face, and what the agenda of the constitutional referendum may be.

The most important issue is the preservation or repeal of article 9 of the Constitution. The article forms a separate chapter "Renunciation of war", which declares: "Sincerely striving for international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation, as well as the threat or use of armed force as a means of resolving international disputes. Land, sea, and air forces, as well as other means of warfare, will never again be created to achieve the goal indicated in the previous paragraph. The right of a State to wage war is not recognized. " ⁴

The basic law of the country, its article 9, is an obstacle to those forces that would like to return armed violence to the arsenal of Japan's foreign policy tools.

The main promoter of the revision of the Constitution and the removal of Article 9 from it is the Liberal Democratic Party of Japan. It is also supported by various right-wing radical groups in the country. In the last decade, in their arguments in favor of Japan's remilitarization, they most often refer to the DPRK's dangerous experiments in the field of nuclear and missile technologies, to the experience of international conflicts in recent years, and the argument about the need for Japan to participate in UN peacekeeping operations abroad is also popular.

However, Japanese society and the parliamentary corps as a whole take a rather prudent and restrained position regarding calls to arm themselves. Polls show that approximately 46% of members of the Japanese parliament are usually in favor of increasing the power of the Japanese armed forces, about 17% are in favor of Japan acquiring nuclear weapons, and 37% of parliamentarians are in favor of strengthening the Japanese - American military-political alliance. It is obvious that there is no immediate real prospect for the Parliament to take a decision on the need to remove Article 9 from the Constitution.

A NEW STATUS AS AN EMPEROR?

Another important issue that is constantly raised by the right-wing forces of Japan is the question of the status of the emperor. Its status is defined by the Constitution as " a symbol of the state and the unity of the people "(Article 1). The Emperor "is not vested with powers related to the exercise of state power" (Article 4), all his actions in the public sphere "can be taken only with the advice and approval of the Cabinet, and the Cabinet is responsible for them 3). Researchers often compare the modern Japanese monarchy with the English one.

Conservatives seek to legislate and ideologically raise the role of the emperor in society,

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declare him head of state. In their activities, they appeal to the traditions of pre-war Japan, to the original national religion of Shinto. In particular, on May 3, 2007, a group of conservative politicians led by former Prime Minister and recognized leader of the Japanese Conservatives Ya. Nakasone held a rally calling for the revision of the preamble to the Japanese Constitution (which specifically declares that "the people are invested with sovereign power") and the introduction of the following provisions: "The Emperor is a symbol of a united society", and Japan "defends its independence through the solidarity of a nation-loving public" ^.5

An unambiguous assessment of the calls for strengthening the institution of monarchy in Japan is hardly possible. The Japanese monarchy is one of the oldest in the world, the imperial dynasty of this country is more than a thousand years old. Her authority in the eyes of the Japanese is great, the person of the emperor, without a doubt, plays an important socializing role in modern Japanese society. By the way, the historical experience of both Europe and Asia in general teaches that the destroyed monarchy is often replaced not by democracy, but by anarchy, barbarism, usurpation of power by cliques, and foreign intervention. On the other hand, the desire of radical politicians to once again put the natural authority of the millennial dynasty at the service of their political ambitions, the desire to use it as a springboard for dictatorial, militaristic, expansionist aspirations inevitably causes painful memories in Japan itself and the surrounding countries of the tragic and criminal historical past, the period of the so-called "monarcho-fascism".

However, according to polls conducted by the Yomiuri Shimbun newspaper in parliament, about 1% of deputies usually support granting the emperor power and the right to interfere in public administration. Calls for political and military adventures under the monarchist flag clearly do not tempt Japanese society.

REFERENDUM AGENDA

The structure and functions of the Japanese Parliament were also discussed. The Parliament's reform requirements primarily concern the House of Councillors. This upper house of parliament, according to the creators of the constitution, was intended to play the role of a stabilizing principle, moderating and leveling fluctuations in the political course in the lower house. The essence of the changes proposed by supporters of parliamentary reform is to limit the prerogatives of the House of Councillors, redistributing some of its powers in favor of the lower house.

Thus, it is proposed that draft laws rejected and returned by the House of Councillors for revision to the lower house, if they are re-voted in this chamber, would be adopted by a simple majority, not by 2/3 votes, as currently provided. The second important change may concern the procedure for appointing the Prime Minister, so that it is carried out not by both chambers, as it is now, but exclusively by the lower house of Parliament.

The proposed innovations may weaken the role of the parliament as a stabilizing factor in state and public life, reduce its importance as the supreme guarantor of maintaining responsible public power, and help turn the parliament into a more malleable "effective tool" of manipulation by the financial and industrial oligarchy.

However, today in Japan there are also more radical proposals regarding the prime minister, namely, it is proposed to elect the chief executive in general elections, expanding his powers at the same time. The proposed innovation may lead to a weakening of control over the government by political parties, trade unions, and mass organizations. In general, as a result of such a neoconservative reform, society can get an executive power that is more distant from the interests of citizens and less controlled by society than it is today.

Innovations are also planned in the field of education. In Japan, the field of education and school have always played the role of the main channel for promoting state ideological programs in society. What kind of trends are emerging in this area?

Thus, since 1989, the mandatory performance of the imperial anthem "Kimi-ga ye!", which was abolished in 1948 as a symbol of the militaristic past, has been reintroduced at school ceremonies. It is quite realistic to assume that conservatives may try to return to the text of the Basic Law of the country the dogmas of the Shinto religion, which asserts the divinity of the emperor's person, and the postulates of the absolutist monarchist ideology.

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In addition, it is proposed to revise Article 89 of the current Constitution, which prohibits the allocation of public funds for education that is "not under state control." It is obvious that the repeal of this provision opens up opportunities for more active, diverse and flexible state ideological propaganda, for its introduction into private information channels, and therefore for possible restrictions on freedom of speech and conscience.

On May 17, the lower house of Parliament approved a package of three laws on education, which were actively promoted by former Prime Minister Shinzo Abe. The first law declares the education of "love for the nation" to be one of the most important tasks of school education; the second law reforms local self-government bodies, expanding the rights of the administration to manage the field of education; the third law deprives teachers of employment guarantees in their specialty, obliging them to renew their teaching license every 10 years. Thus, revisionists may try to introduce provisions in the text of the Constitution that turn the education sector into a tool for "zombifying" the population in the spirit of conservative ideology.

At the same time, proposals are being put forward to include previously absent social provisions in the Constitution, namely, to introduce constitutional guarantees of new humanitarian rights - the "right to the environment" (environmental protection), the "right to know" (transparency of governance), the "right to privacy", guarantees of assistance to people who have become victims of crimes, etc.

Many other issues are also raised: the establishment of the constitutional court; the abolition of the death penalty; the rules for choosing a surname in married couples; the simplification of obtaining Japanese citizenship for foreigners; and the admission of foreigners residing in Japan for a long time to local government elections.

As you can see, the agenda of a possible referendum on the Constitution may turn out to be very extensive and somewhat contradictory. Some issues are aimed at revising the Constitution in the spirit of a right - wing, neoconservative ideology-repealing Article 9, giving the emperor the power to interfere in state administration without control, turning the school into a factory for training thoughtless executors of government orders, and weakening the responsibility of parliament and the prime minister to the people. Other issues are caused by the need to modernize society and governance - such as territorial division reform, "new rights" in the field of social protection, etc.But the main idea of revising the Constitution is still, in our opinion, conservative, reactionary.

Japanese society has always been and still is aware that the proposals of the "revisionists" carry the danger of right-wing, militaristic revenge. Therefore, throughout the entire post-war period, the conservatives met with a firm rebuff from the democratic forces, and as a result, they could not collect 2/3 of the votes of deputies in parliament, or even pass a law on a constitutional referendum. But now such a law has been adopted.

From a formal point of view, taken outside the context of the specific political confrontation and struggle in Japan, the law does not contain anything reactionary, and its adoption makes up for the lack of one of the most important legal tools for the process of improving the Constitution.

DOMESTIC AND FOREIGN REACTIONS

The law met with a mixed reaction in Japanese society. The tone of the discussion as a whole is rather critical. The most significant comments are as follows. First, the law does not set a minimum turnout threshold, so if, for example, only 50% of eligible voters take part in a referendum, then a majority of only 25% of voting citizens can change the country's constitution, which casts doubt on the legitimacy of the upcoming referendum. Further, it seems that different political forces have received unequal chances in defending their views. For example, teachers are not allowed to participate in political propaganda, but Japanese teaching has always been the most important spiritual stronghold of the country's left and democratic forces. Etc.

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The sentiment expressed by the Japan Times newspaper is strong in liberal circles in Japan. In the article " What follows from the adoption of the draft law on the constitutional referendum?" its author Ito Masami notes: "This is the first time that Japan has taken a concrete step to revise the constitution. With this new law, which is due to enter into force in three years, Article 9, which contains the renunciation of war and deters Japan from officially possessing military force, can be revised if necessary."⁶. In short, it suggests that, as one well-known politician said, "the process has started...".

The step taken by Japan towards preparing the legal conditions for revising the country's post-war constitution has also attracted the attention of the wider international community.

America's position is consistent and easily predictable: the United States aims to maintain its military presence in the Asia-Pacific region and seeks to use Japan's potential to achieve its goals. Washington, in principle, supports the course of the ruling circles of Japan to build up the country's armed forces, to revise Article 9 of the post-war constitution, and to involve Japan in supporting US actions on the world stage. Although there is some hidden wariness about the possibility of uncontrolled militarization of Japan in the American position, in general, the current development of Japan is perceived as consistent with the interests of the United States.

Japan's neighbors have a different view of the latest innovations. The greatest concern is expressed by the South Korean press. They are well aware of the past crimes of Japanese imperialism and colonialism, and they are worried about the possibility of reviving a militaristic Japan. The Korean public calls on the Japanese authorities to rethink and critically assess the country's path, strongly condemn crimes against other peoples, and finally "become a normal state in the international arena." ⁷

Wise advice to Tokyo also came from Beijing. Chinese Foreign Ministry spokesman Jiang Yu said: "The Japanese people have chosen the right path of peaceful development after the war, and we hope that Japan will continue to follow this path." ⁸

Russia is sympathetic to Japan's concerns about plans to develop and test nuclear and missile technologies, and to Japan's desire to take a more dignified place in the world community. At the same time, we should not forget that, as the historical experience of Japan itself teaches, restrictions on the democratic rights and freedoms of citizens, militarization of foreign policy create more problems for any country than they solve. Therefore, the adopted Referendum Law should not shake the post-war democratic gains of the Japanese people, its peace-loving constitution, it should serve exclusively to further strengthen the positions of the democratic and peace-loving forces of this country, and the social gains of the Japanese people.

WHAT ARE THE PROSPECTS?

Obviously, much will now depend on how the political confrontation between the "revisionist" camp and the supporters of preserving the current constitution will develop. Since the first practical step in the post-war period towards the revision of the Constitution has been taken, in the new situation, it is necessary to assess the possible prospects for the development of the process: How close and real is the possibility of revising the constitution, and therefore accelerating the militarization of Japan?

There is no doubt that the adoption of the Referendum Law will give a powerful boost to public discussions on the full range of Japanese constitutional issues in the coming years. But what can be the specific legal steps, stages, consequences, turns in the revision of the Constitution?

First of all, the participants in the political process in Japan agreed that the process of revision of the constitution is frozen for three years, and the entry into force of the Law is postponed until May 2010. During this period, both the public and the Parliament can have broad and free discussions on the revision of the Constitution, but no legislative initiatives will be introduced in both houses of Parliament.

Only starting from May 19, 2010, can draft laws to amend the Constitution be submitted to Parliament. To launch such a legal initiative, the "revisionists" must receive the support of 100 deputies of the lower house and 50 deputies of the upper house. It can be assumed that for the current ruling party, overcoming this barrier will not pose serious difficulties.

The real stumbling block is the provision of Article 96 of the Constitution, according to which, in order to submit questions to a referendum, you must first receive the support of 2/3 of the votes of deputies of both chambers of Parliament. It is the lack of such a broad base for-

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During the post-war period, the ruling party's attempts to revise the Constitution were hindered by the lack of support in the Parliament and the large number of oppositionists. In this respect, the situation remains stable: The LDP is still as far away from its cherished goal, from reaching the two-thirds majority in its support, as it was decades ago.

Moreover, the opposition has the opportunity to divert the process of revising the constitution in general, so to speak, in a side channel. The law stipulates that each provision of the Constitution should be discussed in Parliament separately, and not in a "package". To form the agenda, the list of referendum issues, the "revisionists" must enlist the support of a qualified majority of deputies on each issue.

Separate consideration of issues on the referendum agenda makes the task much more difficult. The fact is that the ruling coalition itself is not united in its approaches. Thus, Komeito supports the idea of a referendum, guided by its desire to introduce "new rights" (to the environment, to privacy, etc.) into the Constitution, but regarding Article 9 of the Constitution, Komeito has a special position and also polemics with the LDP. If Komeito does not support the LDP's plans, it will be difficult for the LDP to gather not only a qualified majority, but also a simple majority. Consequently, then a situation may arise in which the referendum agenda will be formed and the referendum will be held without including the issue of revising Article 9 of the Constitution, although it is precisely the abolition of this article that the LDP desires. As a result, the whole process of revision of the constitution seems to take on a different direction and direction, completely far from the aspirations of the LDP. To paraphrase the saying, " A referendum is not the right one!"

But if the LDP could still muster the required qualified majority and defend the inclusion of Article 9 in the referendum agenda, then we will have to admit that the ruling camp has overcome the peak of difficulties on the way to revising the constitution. Although this is not the limit of the democratic camp's ability to resist and defend the constitution.

The next important line of resistance for the defenders of the constitution is the referendum itself. As mentioned above, since 1997, opinion polls have shown that in Japan, the number of citizens who support changing the constitution exceeds the number of supporters of maintaining the current constitution. To a large extent, this result has also been achieved by updating the calls for reform themselves, including appeals of a general modernization nature in the audit agenda. Although the "revisionists"were able to gain some advantage over the defenders of the constitution, the resistance at the referendum stage is not hopeless. The fact is that the trend of evolution of public attitudes in recent years is working in favor of the defenders of the constitution. Thus, according to surveys conducted by the Kedo News news agency, during the period from April 2004 to April 2007, the number of supporters of the revision of the constitution in society decreased from 61% to 57%, while opponents of its revision increased from 29.8% to 34.5%⁹. If this trend continues, then by the time of a possible referendum, victory will be achieved "revisionists" may not be fatally predestined.

Thus, the adoption of the Constitutional Referendum Law under consideration does not create a "chain reaction" effect, which directly and inevitably leads to a revision of the current Constitution of Japan and the elimination of pacifist and democratic provisions from it. The current success of the supporters of constitutional revision is of a secondary, tactical nature. In general, the ruling LDP party is as far from its cherished goal of abolishing Article 9 of the Constitution as it has been in all previous years.

* * *

In any development of events related to the constitutional referendum, it is useful to remember that the norms of law themselves reflect reality rather than create it. The existence of the Japanese armed forces in the position of a kind of "illegitimate" is a fait accompli, and the revision of the relevant article of the constitution may turn out to be just a legalization of this fact, bringing it de jure to de facto. So far, there is no reason to expect any explosive effect, turning Japan into a militaristic monster again. The legal recognition of the existence of the Japanese armed forces does not in itself save the ruling camp of this country from a proper reaction from the democratic forces of Japan itself, nor does it relieve it of responsibility to the international community and Japan's neighbors.

Therefore, the alarming expectations that appeared in the foreign press that the revision of the 1947 Constitution in Japan is a foregone conclusion, the process is inevitably launched, seem unfounded, at least premature.

¹ Nihonkoku kempo no kaisei oebi kokusei ni okeru juena mondai ni kakaru anken no hatsugi tetsuzuki oebi kokumin tohe ni kansuru horitsuan (Draft Law on the People's Referendum and Expression of Will Procedures on the amendment of the Constitution of Japan and Important National Policy Issues. In Japanese. language) - www.shugiin.go.jp

² Nihonkoku kempo no kaisei tetsuzuki ni kansuru horitsu (Law on the Procedure for Changing the Constitution of Japan). N 51, 18 мая 2007 - www.ron.gr.jp/law/law/kenpo_ka.htm

³ Constitution of Japan / translated from Japanese by I. A. Latyshev / / Modern Japan. Reference edition. 2nd ed., Moscow: Main Editorial Office of Eastern Literature, Nauka Publishing House, 1972, pp. 756-776.

⁴ Ibid.

^{Masami Ito.} 5 Nakasone: Constitution defective, preambule needs "love of nation" clause. The Japan Times. May 4, 2007.

^{Masami Ito.} 6 What follows from passage of Constitution referendum bill? The Japan Times. May 15, 2007.

⁷ South Korean newspapers denounce moves to rewrite the Constitution. The Japan Times. May 16, 2007.

⁸ Ibidem.

⁹ Referendum Law raises questions. The Japan Times. May 16, 2007.

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