Japan's Contested Constitution

Documents and Analysis

Glenn D. Hook, Gavan McCormack

• Publisher: Routledge
• Year: 2004
• eBook ISBN: 9781134549887
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

Japan's Contested Constitution is essential reading for anyone with an interest in Japanese domestic politics and the international role of Japan. Subjects covered include;
* the no war, `pacifist' clause
* tension between the constitution and the US-Japan security treaty
* the political import of the constitution for Japanese political parties
* the significance of the constitution for the Japanese people

Part 1
Analysis

1
Parchment and politics

Japan’s living constitution

INTRODUCTION

Japan enters the twenty-first century with the world’s oldest unrevised constitution (Kempō). The words of Japan’s supreme law remain as when first drafted, despite over fifty years of change through political interpretation.¹ The circumstances in which it was drawn up and adopted are now plain. References in the Preamble to the ‘We, the Japanese people’ as the progenitors notwithstanding, its key principles were actually dictates from the office of the Supreme Commander for the Allied Powers (SCAP), General Douglas MacArthur’s allied high command, presented as a virtual ultimatum to the Government of Japan just half a year after it had surrendered to the Allies in August 1945.² In the early months of 1946, Japan was a defeated, exhausted, occupied country, still at that time without any representative institutions. The constitution’s three central featuresthe ‘symbolic emperor’ system, popular sovereignty, and state pacifism—were non-negotiable demands imposed by the war’s victors.

In January 2000, fifty-three years after it was promulgated, Constitutional Research Councils were set up in both the Upper House of Councillors and the Lower House of Representatives of the Japanese Diet. Their purpose is to consider, debate, and in due course make appropriate recommendations in regard to the constitution. The process is almost certain to lead eventually to revision of one kind or another. In view of the inauspicious circumstances in which the Constitution of Japan was born and came into force in 1947, and the hugely different circumstances of today, it is perhaps more remarkable that the constitution has survived intact as long as it has, than that its revision is now being seriously contemplated.

The opening of deliberations in the Constitutional Research Councils brings to a head a process of reconsideration of post-war Japanese history, identity and place in the world that has been building over a long period, but developed with growing momentum during the decade of the 1990s. The momentum to reconsider Japan in this way followed the ending of the Cold War and the Gulf crisis and war of 1990–1. Unlike the dramatic and sudden changes in Eastern Europe and the Soviet Union symbolized by the collapse of the Berlin Wall and the break-up of the West’s nuclear antagonist throughout the Cold War period, in Japan change only began to gather momentum after a prolonged period of unravelling, fatigue and uncertainty, during which the framework and direction imposed by Cold War politics and the growth economy dissolved slowly. The call on Japan to make a military contribution to the resolution of the Gulf War made the search for a new way forward all the more imperative, but it was only when it was clear that old ways no longer worked that the national debate slowly turned to focus on the options available for Japan in the emerging new world order.

Constitutions are statements of the raison d’être of states and nations. Written or unwritten, they define the balance of powers and duties between states, their parliaments, courts, governments, bureaucracies and armies, on the one hand, and their subjects, citizens, peoples or civil societies, on the other. Inevitably, they reflect the time of their conception and, so long as no absolute statement of the ideal mode of government is forthcoming, constitutions are bound to change.

The Japanese constitutional debate involves the three issues which may be described as ‘classic’ in constitutional theory—location of sovereignty, division of powers, and definition of the rights and duties of citizens and state. What is distinctive if not unique about the Constitution of Japan, however, is that it also involves a fourth issue, the declaration of state orientation (as pacifist or, more precisely, antimilitarist), as stated in Article 9. Much of the debate has revolved, and still revolves, on this matter.

Parties to the debate include those who insist on strict and literal interpretation, especially of Article 9 (constitutionalists, or advocates of goken), those who favor outright revision, commonly with Article 9 most prominently in their sights (revisionists, or advocates of kaiken), those who resile from the strict literal interpretation but prefer continuing the practice of the past half-century rather than actual revision, believing that it is enough to change the interpretation, not the words (advocates of kaishaku kaiken), as well as those who would retain the words and their literal meaning, but resolve the many problems surrounding them by passing various supplementary legislation (creative constitutionalists, or proponents of sōken). While the line between kaishaku kaiken and sōken may be blurred in practice, now many, but not all of these, have come together in a new category—those who, irrespective of their position, favor constitutional debate (ronken).

ORIGINS

Before the present constitution was promulgated in November 1946 and then came into force in May 1947, Japan was governed under the Imperial Constitution of 1889, often known as the ‘Meiji Constitution’ after the era (1868– 1912) of its birth. Sovereignty then was plainly in the hands of the Emperor, who claimed to rule by divine right. He held supreme power, while all popular rights were circumscribed and the duty of people to serve and obey him was absolute, despite periods when in practice a government responsible to a Diet elected on a limited franchise managed most of the affairs of state. In sharp contrast, the postwar constitution of 1947 proclaimed the sovereignty of the people, defined a set of unequivocal rights, established formal separation of powers and also a strict separation of state and religion, and declared pacifism to be a central policy of the Japanese state.

The constitution was born of a week’s intensive brainstorming by a specially appointed panel at the direction of General MacArthur. Not one Japanese was on this committee. The guidelines under which it operated were clear: the Emperor must be retained—he had been assigned an especially important role in United States planning and therefore was to be given immunity from prosecution as a war criminal; Japan must not be allowed to possess any armed forces; and ‘feudalism’ had to be abolished.³ Once drafted, the document was handed to the Japanese Cabinet of Prime Minister Shidehara Kijuro and published in March 1946. Paradoxically for a document which was to establish democracy in Japan, it came accompanied by a special Rescript from the Emperor ordering change, commanding that ‘the constitution of our empire be revised drastically upon the basis of the general will of the people and the principle of respect for fundamental human rights.’⁴ Significantly, the Meiji Constitution was therefore not rejected, but revised. The process was characterized by continuity rather than rupture, something that would have been inconceivable in post-war Germany or Italy. The responsibility for passing the Constitution Bill into legislation was assumed by Prime Minister Shidehara in the unreformed wartime (militarist) Diet. The bill was subsequently in some respects revised, and then, after the first post-war, that is, democratic, elections in April 1946, adopted in the Diet in June. Certain territories remained outside the purview of the constitution, however, most notably Okinawa, which was only returned to Japanese administration in 1972. Because of the special problems to which this has given rise, Okinawa is analyzed separately.

Symbolic emperor and popular sovereignty

Under the new dispensation, the Emperor was the ‘symbol of the state and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power’ (Article 1). If the people were ‘sovereign,’ however, what then was the Emperor? At least he was a human being, as on New Year’s Day 1946 he renounced all claims to being divine, a disavowal of the position of the Emperor of Japan as arahitogami (god who appears in human form). However, the concession was qualified. MacArthur’s stipulation that ‘feudalism’ be abolished was mocked by the Imperial House Law (1947) under which imperial succession was confined to male heirs, contrary to the constitution’s Article 24 (2) on the ‘essential equality of the sexes’ in all matters of family and inheritance. The 1947 law also exempted the Emperor and his family from any burden of taxation or right to vote, as well as providing immunity from the provisions of both civil and criminal law. Imperial humanity was further qualified by his continuing role as intermediary to the gods through the performance of arcane religious rites and through the preservation of the pre-democratic symbols of his authority, the Three Sacred Treasures’ (mirror, sword, and jewel) preserved at Ise Shrine.⁵ The difficulty of reconciling all this with the constitutional role of an Emperor whose position was ‘derived from the will of the people with whom resides sovereign power’ (Article 1), under a constitution which forbade state involvement in any religious activity (Article 20), was plain.

One eminent Japanese constitutional specialist believes that the English word ‘emperor’ has been inappropriate to Japan ever since its empire was liquidated in 1945: ‘Without the empire of Japan, there is no basis for calling the tenno emperor.’⁶ Neither monarch nor head of state nor sovereign (genshu), his role is constitutionally confined (Article 4) to precise and limited matters of state defined in the constitution. The matter is complicated, however, by the impossibility of knowing what it could mean to be a ‘symbolic’ rather than any other kind of emperor, and by his continued performance of the quasi-religious role of Shinto high priest, for which no constitutional warrant exists. Furthermore, this religious role is crucial to the production and reproduction of the privileged notions of Japanese identity central to nationalist discourse, for he is also the ultimate source of racial and cultural purity, the quintessence of ‘Japaneseness.’ The line between his constitutional and extra-constitutional role is unclear, and his prestige stems at least as much from the one as from the other.

Scholarly accounts such as those of Koseki and Dower make clear that Japanese interventions significantly modified the American draft of February 1946 before it was finally adopted, ‘enriching the democratic content of the final text’ in Koseki’s words.⁷ Yet the record is in certain cases ambiguous. There was actually little maneuver on the central points and some of it served to dilute, rather than enrich, democratic content. Thus the substitution in the Japanese text of the phrase ‘subete no kokumin’ (‘all Japanese’) for the English ‘all people’ (literally all natural persons ‘issai no shizenjin’), which Koseki recounts, served to deprive all non-Japanese citizens of constitutional rights, including those of Korean or Chinese descent who found themselves living in Japan because they, their parents or grandparents, had earlier been mobilized one way or another to serve the Japanese Empire.⁸

On the central question of the locus of sovereign power, the 1947 Constitution’s formula was somewhat paradoxical. The strange and unique system which evolved out of the formula has recently been dubbed by Dower ‘imperial democracy.’⁹ Although the sovereignty of the people was declared, the 1889 Constitution, rooted in imperial absolutism, was not rejected but inherited. Contrary to the idea of fundamental human rights being the ‘fruits of the age-old struggle of man to be free’ (Article 97), the new constitution was presented as though it were a gift from the Emperor, a revision of the constitution earlier ‘presented’ to the nation by his grandfather; its first eight articles concerned his position and role, and the date of promulgation was November 3 1946, the birthday of his grandfather the Meiji Emperor. Having been granted immunity from prosecution as a war criminal, the Emperor was installed as the center, albeit the symbolic center, of the constitutional system (Chapter 1, Articles 1 to 8), and imperial succession was determined by ‘household’ rules beyond political scrutiny and in accord with patriarchal lines of descent.

The decision to foreclose the question of war responsibility by granting the Emperor immunity from prosecution laid the foundation for a system of obfuscated responsibility which sent out tendrils throughout the emerging state system, blocking as much as it promoted democracy. The failure of the Japanese state to consider the question of war crimes, once independence was restored to it in 1952 on ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgments
• Conventions
• Abbreviations
• Part 1: Analysis
• Part 2: Documents
• Part 3: Constitution texts