Supreme law of Japan
The Constitution of Japan is the supreme law of Japan. Written primarily by American civilian officials during the occupation of Japan after World War II, it was adopted on 3 November 1946 and came into effect on 3 May 1947, succeeding the Meiji Constitution of 1889. The constitution consists of a preamble and 103 articles grouped into 11 chapters. It is based on the principles of popular sovereignty, with the Emperor of Japan as the symbol of the state; pacifism and the renunciation of war; and individual rights.
Upon the surrender of Japan at the end of the war in 1945, Japan was occupied and U.S. General Douglas MacArthur, the Supreme Commander for the Allied Powers, directed prime minister Kijūrō Shidehara to draft a new constitution. Shidehara created a committee of Japanese scholars for the task, but MacArthur reversed course in February 1946 and presented a draft created under his own supervision, which was reviewed and modified by the scholars before its adoption. Also known as the "MacArthur Constitution", , or , it is relatively short at 5,000 words, less than a quarter the length of the average national constitution.
The constitution provides for a parliamentary system and three branches of government, with the National Diet (legislative), Cabinet led by a Prime Minister (executive), and Supreme Court (judicial) as the highest bodies of power. It guarantees individual rights, including legal equality; freedom of assembly, association, and speech; due process; and fair trial. In contrast to the Meiji Constitution, which invested the emperor with supreme political power, under the 1946 constitution his role in the system of constitutional monarchy is reduced to "the symbol of the State and of the unity of the people", and he exercises only a ceremonial role under popular sovereignty. Article 9 of the constitution renounces Japan's right to wage war and to maintain military forces. Despite this, it retains a "de facto" military in the form of the Self-Defense Forces and hosts a substantial U.S. military presence. Amendments to the constitution require a two-thirds vote in both houses of the National Diet and approval in a referendum, and despite the efforts of conservative and nationalist forces to revise Article 9 in particular, it remains the world's oldest un-amended constitution.
Historical origins.
Meiji Constitution.
The Meiji Constitution was the fundamental law of the Empire of Japan, propagated during the reign of Emperor Meiji (r. 1867 – 1912). It provided for a form of mixed constitutional and absolute monarchy, based on the Prussian and British models. In theory, the Emperor of Japan was the supreme leader, and the cabinet, whose prime minister was elected by a privy council, were his followers; in practice, the Emperor was head of state but the Prime Minister was the actual head of government. Under the Meiji Constitution, the prime minister and his cabinet were not accountable to the elected members of the Imperial Diet, and increasingly deferred to the Imperial Japanese Army in the lead-up to the Second Sino-Japanese War.
The Potsdam Declaration.
On 26 July 1945, shortly before the end of World War II, Allied leaders of the United States (President Harry S. Truman), the United Kingdom (Prime Minister Winston Churchill), and the Republic of China (President Chiang Kai-shek) issued the Potsdam Declaration. The Declaration demanded Japanese military's unconditional surrender, demilitarisation and democratisation.
The declaration defined the major goals of the post-surrender Allied occupation: "The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established" (Section 10). In addition, "The occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives have been accomplished and there has been established in accordance with the freely expressed will of the Japanese people a peacefully inclined and responsible government" (Section 12). The Allies sought not merely punishment or reparations from a militaristic foe, but fundamental changes in the nature of its political system. In the words of a political scientist Robert E. Ward: "The occupation was perhaps the single most exhaustively planned operation of massive and externally directed political change in world history."
The Japanese government, Prime Minister Kantarō Suzuki's administration and Emperor Hirohito accepted the conditions of the Potsdam Declaration, which necessitates amendments to its Constitution after the surrender.
Drafting process.
The wording of the Potsdam Declaration—"The Japanese Government shall remove all obstacles ..."—and the initial post-surrender measures taken by MacArthur, suggest that neither he nor his superiors in Washington intended to impose a new political system on Japan unilaterally. Instead, they wished to encourage Japan's new leaders to initiate democratic reforms on their own. But by early 1946, MacArthur's staff and Japanese officials were at odds over the most fundamental issue, the writing of a new Constitution. Emperor Hirohito, Prime Minister Kijūrō Shidehara, and most of the cabinet members were extremely reluctant to take the drastic step of replacing the 1889 Meiji Constitution with a more liberal document.
Former prime minister Fumimaro Konoe, Shidehara Cabinet and the civil constitutional study groups formed original constitutions. The formal draft constitution, which was created by the Shidehara Cabinet, was rejected by GHQ and the government reviewed the revised drafts by various political parties and accepted liberal ways of thinking especially toward the emperor as the symbol of nationals and dispossession of a military power.
After World War II, the Allied Powers concluded an "Instrument of Surrender" with Japan, which stated that "the Emperor and the Government of Japan shall come under the subordination of the Supreme Commander of the Allied Powers". Koseki interprets this statement as the GHQ's indirect rule through the Emperor and the Japanese government, rather than direct rule over the Japanese people. In other words, GHQ regarded the Emperor Hirohito not as a war criminal parallel to Hitler and Mussolini but as one governance mechanism.
The Japanese government at the end of World War II was organized by Higashikuni Cabinet (Prime Minister Prince Naruhiko Higashikuni), with Fumimaro Konoe, who had served as the prime minister during the Manchurian Incident in 1931, as a minister without portfolio. The trigger of constitutional amendment was from GHQ General MacArthur's word to Fumimaro Konoe. After an unsuccessful first visit on 13 September 1945, Fumimaro Konoe paid another visit to MacArthur at the GHQ headquarters on 4 October 1945. Although the GHQ later denied this fact, citing a mistake by the Japanese interpreter, diplomatic documents between Japan and the U.S. state that "the Constitution must be amended to fully incorporate liberal elements". "At the meeting, the General told Konoe that the Constitution must be amended". In this regard, it can be said that the GHQ granted Konoe the authority to amend the Constitution. However, at this point, the Higashikuninomiya Cabinet was succeeded by the Shidehara Cabinet, and Jōji Matsumoto, the then Minister of State, stated that the Cabinet should be the only one to amend the Constitution, and the Constitutional Problems Investigation Committee was established. In other words, there was a conflict between the Konoe and Shidehara cabinets as to who should take the initiative in constitutional amendment.
However, this conflict ended with Konoe being nominated as a candidate for Class A war criminal due to domestic and international criticism. To begin with, Konoe was able to have the initiative to amend the Constitution because he had been assigned full-time by the GHQ to amend the constitution, although he was not an unappointed minister when the cabinet was changed. However, due to domestic and foreign criticism of Konoe, the GHQ announced on 1 November that Konoe had not been appointed to amend the Constitution and that he had no authority to lead the amendment of the constitution since the cabinet had changed. At that time, Konoe belonged to the Office of the Minister of the Interior, which was in charge of politics related to the Imperial Household, but since the Office of the Minister of the Interior was about to be abolished, he decided to submit a proposal for amendment before then. Konoe's proposal reflected the wishes of the GHQ and was very liberal in content, including "limitation of the imperial prerogative," "independent dissolution of the Diet," and "freedom of speech," but it was never finally approved as a draft, and Konoe committed suicide by poisoning himself. After this, the authority to amend the Constitution was completely transferred to Shidehara's cabinet.
In late 1945, Shidehara appointed Jōji Matsumoto, state minister without portfolio, head of a blue-ribbon committee of Constitutional scholars to suggest revisions. The Matsumoto Committee was composed of the authorities of the Japanese law academia, including Tatsuki Minobe (美濃部達吉), and the first general meeting was held on 27 October 1945. Jōji Matsumoto presented the following four principles of constitutional amendment to the Budget Committee of the House of Representatives in 1945.
Four principles of constitutional amendment
The Matsumoto Committee has prepared a constitutional amendment outline based on these principles.
The Matsumoto Commission's recommendations, made public in February 1946, were quite conservative as "no more than a touching-up of the Meiji Constitution". MacArthur rejected them outright and ordered his staff to draft a completely new document. An additional reason for this was that on 24 January 1946, Prime Minister Shidehara had suggested to MacArthur that the new Constitution should contain an article renouncing war.
As the momentum for constitutional amendment increased, interest in the constitution increased among the people. In fact, not only political parties but also private organizations have announced draft constitutional amendments.
The most famous of these is the outline of the draft constitution by the Constitution Study Group. The Constitutional Study Group was established on 29 October 1945 to study and prepare for the establishment of the Constitution from a leftist approach. While many political party drafts only added to the Meiji Constitution, their drafts included the principle of popular sovereignty, which grants sovereignty to the people and regards the Emperor as a symbol of the people. The Constitutional Study Group submitted a draft to the Prime Minister's Office on 26 December 1945. On 2 January 1946, GHQ issued a statement that it would focus on the content. Toyoharu Konishi states that the GHQ may have included the opinion of the Constitutional Study Group in the draft, reflecting the situation in the United States, where people disregarded popular sovereignty at that time. Also, regarding the symbolic emperor system, since the members of the Constitutional Study Group came into contact with the GHQ dignitaries earlier than the drafting of the guidelines, the Constitutional Study Group proposed the symbolic emperor system through the GHQ dignitaries. It is analyzed that it was reflected in the GHQ proposal.
The Constitution was mostly drafted by American authors. A few Japanese scholars reviewed and modified it. Much of the drafting was done by two senior army officers with law degrees: Milo Rowell and Courtney Whitney, although others chosen by MacArthur had a large say in the document. The articles about equality between men and women were written by Beate Sirota.
MacArthur gave the authors less than a week to complete the draft, which was presented to surprised Japanese officials on 13 February 1946. MacArthur initially had a policy of not interfering with the revision of the Constitution, but from around January 1946, he made a statement to the Constitutional Draft Outline of the Constitutional Study Group and activated movements related to the Constitution. There are various theories as to the reason. Kenzo Yanagi mentioned the memorandum of Courtney Whitney, who was the director of the Civil Affairs Bureau of the General Headquarters, on 1 February 1946 as a reason for the attitude change. In the memorandum, it is mentioned that the Far Eastern Commission was about to be established. The Far Eastern Commission is the supreme policy-making body established by the United States, United Kingdom, the Soviet Union, China, Australia, and other allies to occupy and control Japan, and its authority was higher than that of GHQ. MacArthur learned that the Far Eastern Commission was interested in constitutional amendment, and thought that constitutional authority could be transferred to the Far Eastern Commission after the commission was established. Therefore, he might be eager to end the constitutional issue with unlimited authority before it was founded.
On 18 February, the Japanese government called on the GHQ to reconsider the MacArthur Draft, which is significantly different from the Matsumoto Draft, but Whitney rejected the proposal