Irish People are the Masters
Referendums, Citizens' Assemblies and Constitutional Law in Japan and Ireland
Japan's constitution is the oldest unamended constitution in the world. Written in one week by the American occupation forces after the Asia-Pacific War, the Japanese Constitution of 1947 remains unamended after more than 75 years.
But for how long?
The country is debating amending Article 9, in which the Japanese "forever renounce war as a sovereign right of the nation." David Kenny, a professor of constitutional law at Trinity College Dublin, gave a talk at Keio University on the lessons Japan could learn from the Irish constitutional amendment process. In particular, he discussed the role of referendums and citizens' assemblies in this process.
Unlike Japan (or Canada, for that matter) Ireland is keen on constitutional changes. It has amended its constitution several times—32 times, to be exact. And some of these amendments addressed controversial issues such as divorce, same-sex marriage, abortion, and the death penalty.
Since the population must ratify all amendments to the Irish constitution, the Irish people were called to the polls to vote on these issues. Contrary to popular belief among political scientists, far from increasing tensions over divisive issues, these referendums have been a great way to legitimize important social changes. A phenomenon Kenny describes as the "losers' consent." When people know that most of their fellow citizens voted for a constitutional amendment, they are more likely to accept the change as legitimate and abide by it.
And in recent years, what Kenny calls "Ireland's great referendum culture" has evolved into something that gives even more power to the Irish people when it comes to amending the constitution. After the 2016 election, the Irish government was considering repealing the country's constitutional ban on abortion. Fearing the political cost of proposing such a change, the ruling party outsourced the decision to a Citizens' Assembly, —i.e. a group of 100 people who were briefed by experts, and spent 12 weekends working together to come up with recommendations about the abortion issue.
The Citizens' Assembly recommended that abortion be liberalized, and (after some other rather complicated political steps) the question was eventually put to the public in a referendum. The "liberalized abortion" option won by a comfortable margin. Interestingly, according to Kenny, the fact that liberalizing abortion was what the Citizens' Assembly deemed optimal after seriously considering all aspects of the question may have had an (appreciable) impact on the outcome.
Judging by the number of questions Kenny was asked about Citizen's Assemblies, the topic seems to have been thought-provoking for the Japanese. But even for a country where constitutional amendments are off the table—say Canada, for instance—Citizens' Assemblies could hold great potential. They could help deal with complicated issues like climate change or tech regulations.