The has
been the founding legal document of Japan
since
1947. The constitution provides for a
parliamentary system of government and
guarantees certain fundamental rights. Under its terms the
Emperor of Japan is "the symbol of the
State and of the unity of the people" and exercises a purely
ceremonial role without the possession of
sovereignty. Thus, unlike other monarchs, he is
not formally the head of state although he is portrayed and treated
as though he were. The constitution, also called "the ," is most
characteristic and famous for the renunciation of the right to wage
war contained in
Article 9 and to a
lesser extent, the provision for
de jure
popular sovereignty in conjunction with the monarchy.
The constitution was drawn up under the
Allied occupation that followed
World War II and was intended to replace
Japan's previous
militaristic absolute monarchy system with a form of
liberal democracy. Currently, it
is a rigid document and no subsequent amendment has been made to it
since its adoption.
Historical origins
Meiji constitution
"Emperor's words"
The
Constitution of the Empire of
Japan of 1889 (more commonly known as the "Imperial" or "Meiji
Constitution"), was the first modern constitution of the country.
Enacted as part of the
Meiji
Renewal, it provided for a form of
constitutional monarchy based on the
Prussian model. In effect, the
Emperor of Japan would appear to be an
active ruler wielding considerable political power, but in fact
would be wholly supported and controlled by the
Cabinet, whose
Prime Minister would be elected by a
Privy Council. Under its terms, the
Prime Minister and his Cabinet were not
necessarily chosen from the elected members of the
Diet. Pursuing the regular amending
procedure of the "Meiji Constitution", it was entirely revised to
become the Peace Constitution on 3 November 1946. The Peace
Constitution has been in force since 3 May 1947.
The Potsdam Declaration
On 26 July 1945 Allied leaders
Winston
Churchill,
Harry S Truman, and
Chiang Kai-Shek issued the
Potsdam Declaration, which demanded
Japan's unconditional surrender. This declaration also defined the
major goals of the postsurrender
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 document stated: "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 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."
Drafting process
The wording of the Potsdam Declaration—"The Japanese Government
shall remove all obstacles..."—and the initial postsurrender
measures taken by
Douglas
MacArthur, the Supreme Commander for the Allied Powers (SCAP),
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
Showa,
Prime Minister
Shidehara Kijuro 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. In late 1945, Shidehara appointed
Joji Matsumoto, state minister without
portfolio, head of a blue-ribbon committee of constitutional
scholars to suggest revisions. The
Matsumoto Commission's recommendations,
made public in February 1946, were quite conservative (described by
one Japanese scholar in the late 1980s 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.
Much of it was drafted by two senior army officers with law
degrees:
Milo Rowell and
Courtney Whitney. The articles about
equality between men and women are reported to be written by
Beate Sirota. Although the document's
authors were non-Japanese, they took into account the Meiji
Constitution, the demands of Japanese lawyers, and the opinions of
pacifist political leaders such as Shidehara and
Yoshida Shigeru. The draft was presented to
surprised Japanese officials on 13 February 1946. On 6 March 1946
the government publicly disclosed an outline of the pending
constitution. On 10 April elections were held to the House of
Representatives of the Ninetieth Imperial Diet, which would
consider the proposed constitution. The election law having been
changed, this was the first
general
election in Japan in which women were permitted to vote.
The MacArthur draft, which proposed a
unicameral legislature, was changed at the
insistence of the Japanese to allow a
bicameral legislature, both houses being elected.
In most other important respects, however, the ideas embodied in
the 13 February document were adopted by the government in its own
draft proposal of 6 March. These included the constitution's most
distinctive features: the symbolic role of the
Emperor, the prominence of guarantees of
civil and human rights, and the renunciation of war.
Adoption
"The Preamble to the
Constitution"
It was decided that in adopting the new document the Meiji
Constitution would not be violated, but rather legal continuity
would be maintained. Thus the 1946 constitution was adopted as an
amendment to the Meiji Constitution in accordance with the
provisions of Article 73 of that document. Under Article 73 the new
constitution was formally submitted to the
Imperial Diet by the Emperor, through an
imperial rescript issued on 20 June. The draft constitution was
submitted and deliberated upon as the
Bill for Revision of
the Imperial Constitution. The old constitution required
that the bill receive the support of a two-thirds majority in both
houses of the Diet in order to become law. After both chambers had
made some amendments the
House of
Peers approved the document on 6 October; it was adopted in the
same form by the
House
of Representatives the following day, with only five members
voting against, and finally became law when it received the
Emperor's assent on 3 November. Under its own terms the
constitution came into effect six months later on 3 May,
1947.
Early proposals for amendment
The new constitution would not have been written the way it was had
MacArthur and his staff allowed Japanese politicians and
constitutional experts to resolve the issue as they wished. The
document's foreign origins have, understandably, been a focus of
controversy since Japan recovered its sovereignty in 1952. Yet in
late 1945 and 1946, there was much public discussion on
constitutional reform, and the MacArthur draft was apparently
greatly influenced by the ideas of certain Japanese liberals.
The
MacArthur draft did not attempt to impose a United States
-style presidential or federal system.
Instead, the proposed constitution conformed to the British model
of parliamentary government, which was seen by the liberals as the
most viable alternative to the European
absolutism of the Meiji
Constitution.
After 1952 conservatives and
nationalists attempted to revise the
constitution to make it more "Japanese", but these attempts were
frustrated for a number of reasons. One was the extreme difficulty
of amending it. Amendments require approval by two-thirds of the
members of both houses of the National Diet before they can be
presented to the people in a referendum (Article 96). Also,
opposition parties, occupying more than one-third of the Diet
seats, were firm supporters of the constitutional status quo. Even
for members of the ruling
Liberal Democratic Party
(LDP), the constitution was advantageous. They had been able to
fashion a policy-making process congenial to their interests within
its framework.
Yasuhiro Nakasone,
a strong advocate of constitutional revision during much of his
political career, for example, downplayed the issue while serving
as prime minister between 1982 and 1987.
Main provisions
Structure
The constitution has a length of approximately 5,000 words. It
consists of a preamble and 103 articles grouped into eleven
chapters. These are:
- I. The Emperor (1–8)
- II. Renunciation of War (9)
- III. Rights and Duties of the People (10–40)
- IV. The Diet (41–64)
- V. The Cabinet (65–75)
- VI. Judiciary (76–82)
- VII. Finance (83–91)
- VIII. Local Self–Government (92–95)
- IX. Amendments (96)
- X. Supreme Law (97–99)
- XI. Supplementary Provisions (100–103)
Founding principles
The constitution contains a firm declaration of the principle of
popular sovereignty in the preamble. This is proclaimed in the name
of the "Japanese people" and declares that "sovereign power resides
with the people" and
- government is a sacred trust of the people, the authority for
which is derived from the people, the powers of which are exercised
by the representatives of the people, and the benefits of which are
enjoyed by the people.
Part of the purpose of this language is to refute the previous
constitutional theory that sovereignty resided in the Emperor. The
constitution asserts that the Emperor is merely a symbol and that
he derives "his position from the will of the people with whom
resides sovereign power" (Article 1). The text of the constitution
also asserts the
liberal doctrine of
fundamental human rights. In particular Article 97 states
that
- the fundamental human rights by this Constitution guaranteed to
the people of Japan are fruits of the age-old struggle of man to be
free; they have survived the many exacting tests for durability and
are conferred upon this and future generations in trust, to be held
for all time inviolate.
Organs of government
Politics Under Constitution of
Japan
- Main article: Government of
Japan
The constitution establishes a parliamentary system of government.
The Emperor carries out most of the functions of a
head of state but his role is merely
ceremonial and, unlike the forms of
constitutional monarchy found in
some other nations, he possesses no
reserve powers. Legislative authority is
vested in a
bicameral National Diet and, whereas previously the
upper house had consisted of members of
the nobility, the new constitution provided that both chambers be
directly elected.
Executive authority is exercised by a
Prime Minister and cabinet answerable to the legislature,
while the judiciary is headed by a Supreme
Court
.
Individual rights
"The rights and duties of the people" are prominently featured in
the postwar constitution. Altogether, thirty-one of its 103
articles are devoted to describing them in considerable detail,
reflecting the commitment to "respect for the fundamental human
rights" of the
Potsdam
Declaration. Although the
Meiji
Constitution had a section devoted to the "rights and duties of
subjects", which guaranteed "liberty of speech, writing,
publication, public meetings, and associations", these rights were
granted "within the limits of law". Freedom of religious belief was
allowed "insofar as it does not interfere with the duties of
subjects" (all Japanese were required to acknowledge the Emperor's
divinity, and those, such as
Christians,
who refused to do so out of religious conviction were accused of
lèse-majesté). Such freedoms
are delineated in the postwar constitution without
qualification.
- Liberty: The
constitution asserts the right of the people "to be respected as
individuals" and, subject to "the public welfare", to "life,
liberty, and the pursuit of happiness" (Article 13).
- Equality: The
constitution guarantees equality before the law and outlaws
discrimination based on "political, economic or social relations"
or "race, creed, sex, social status or family origin" (Article 14).
The right to vote cannot be denied on the grounds of "race, creed,
sex, social status, family origin, education, property or income"
(Article 44). Equality between the sexes is explicitly guaranteed
in relation to marriage (Article 24) and childhood education
(Article 26).
- Prohibition of peerage:
Article 14 forbids the state from recognising peerage. Honours may
be conferred but they must not be hereditary or grant special
privileges.
- Democratic elections:
Article 15 provides that "the people have the inalienable right to
choose their public officials and to dismiss them". It guarantees
universal adult (in Japan, persons age 20 and older) suffrage and
the secret ballot.
- Prohibition of slavery:
Guaranteed by Article 18. Involuntary servitude is only permitted
as punishment for a crime.
- Prohibition of establishment:
Establishment is not explicitly mentioned. However, the state is
prohibited from granting privileges or political authority to a
religion, or conducting religious education (Article 20).
- Freedom of assembly,
association, speech, and secrecy of
communications: All guaranteed without qualification by
Article 21, which forbids censorship.
- Workers'
rights: Work is declared both a right and obligation
to work by Article 27 which also states that "standards for wages,
hours, rest and other working conditions shall be fixed by law" and
that children shall not be exploited. Workers have the right to
participate in a trade union (Article
28).
- Right to property: Guaranteed subject to the
"public welfare". The state may take
property for public use if it pays just compensation (Article 29).
The state also has the right to levy taxes
(Article 30).
- Right to due
process: Article 31 provides that no one may be
punished "except according to procedure established by law".
- Protection against unlawful detention: Article 33
provides that no one may be apprehended without an arrest warrant,
save where caught in flagrante
delicto. Article 34 guarantees habeas corpus, right to counsel, and
right to be informed of charges. Article 40 enshrines the right to
sue the state for wrongful detention.
- Right to a fair
trial: Article 37 guarantees the right to a public trial before an impartial tribunal with
counsel for one's defence and compulsory access to witnesses.
- Protection against self-incrimination: Article 38
provides that no one may be compelled to testify against
themselves, that confessions obtained under duress are not
admissible and that no one may be convicted solely on the basis of
their own confession.
Other provisions
- Renunciation of war: Under Article 9 of the
constitution the "Japanese people forever renounce war as a
sovereign right of the nation and the threat or use of force as
means of settling international disputes". To this end the article
provides that "land, sea, and air forces, as well as other war
potential, will never be maintained".
- Judicial review: Article 98 provides that the
constitution takes precedence over any "law, ordinance, imperial
rescript or other act of government" that offends against its
provisions.
- International law: Article 98 provides that
"the treaties concluded by Japan and established laws of nations
shall be faithfully observed". In most nations it is for the
legislature to determine to what extent, if at all, treaties concluded by the state will be reflected in
its domestic law. Under Article 98, however, in theory at least,
international law and the treaties
Japan has ratified automatically form a part of domestic law.
Amendments and revisions
The constitution has not been amended once since its 1947
enactment. Article 96 provides that
amendment can be made to any part
of the constitution. However, a proposed amendment must first be
approved by both houses of the Diet, by at least a
super majority of two-thirds of each house
(rather than just a
simple
majority). It must then be submitted to a
referendum in which it is sufficient for it to be
endorsed by a simple majority of votes cast. A successful amendment
is finally promulgated by the Emperor, but the monarch cannot veto
an amendment.
Some commentators have suggested that the difficulty of the
amendment process was favoured by the constitution's American
authors from a desire that the fundamentals of the regime they had
imposed would be resistant to change. However, among Japanese
themselves, any change to the document and to the post-war
settlement it embodies is highly controversial. From the 1960s to
the 1980s, constitutional revision was rarely debated
[9894]. In the 1990s, right-leaning and conservative
voices broke some taboos
[9895], for example, when the
Yomiuri Shimbun published a suggestion for
constitutional revision in 1994
[9896]. This period saw a number of right-leaning
groups forming to aggressively push for constitutional revision,
but also a significant number of organizations and individuals
speaking out against revision
[9897] and in support of "the peace
constitution."
The debate has been highly polarized. The most controversial issues
are proposed changes to
Article 9, the "peace
article" and provisions relating to the role of the Emperor.
Progressive, left, center-left and peace movement related
individuals and organizations, as well as the opposition parties
[9898], labor
[9899] and youth groups advocate keeping (and
even strengthening) the existing constitution in these areas, while
right-leaning, nationalist and/or conservative groups and
individuals advocate changes to increase the prestige of the
Emperor (though not granting him political powers) and to allow a
more aggressive stance of the self-defense force, e.g. by turning
it officially into a military. Others areas of the constitution and
connected laws discussed for potential revision relate to the
status of women, the education system and the system of public
corporations (including social welfare, non-profit and religious
organizations as well as foundations), and structural reform of the
election process, e.g. to allow for direct election of the prime
minister
[9900]. There are countless grassroots groups,
associations, NGOs, think tanks, scholars, and politicians speaking
out in favor of one or the other side of the issue
[9901].
In August 2005, the then Japanese Prime Minister,
Junichiro Koizumi, proposed an amendment
to the constitution in order to increase Japan's Defence Forces'
roles in international affairs. A draft of the proposed
constitution was released by the
Liberal Democratic Party
(LDP) on 22 November 2005 as part of the fiftieth anniversary of
the party's founding. The proposed changes included:
- New wording for the Preamble.
- First paragraph of Article 9, renouncing
war, is retained. The second paragraph, forbidding the maintenance
of "land, sea, and air forces, as well as other war potential" is
replaced by an Article 9-2 which permits a "defence force", under
control of the Prime Minister, which defends the nation and may
participate in international activities. This new section uses the
term "軍" (gun, army or military), which has been avoided
under the current constitution. Also, addition in Article 76 of
military courts. Members of the Japanese Self-Defense Forces
are currently tried as civilians by civilian courts.
- Modified wording in Article 13, regarding respect for
individual rights.
- Changes in Article 20, which gives the state limited permission
within "the scope of socially acceptable protocol" or
"ethno-cultural practices". Changes Article 89 to permit
corresponding state funding of religious institutions.
- Changes to Articles 92 and 95, concerning local self-government
and relations between local and national governments.
- Changes to Article 96, reducing the vote requirement for
constitutional amendments in the Diet from two thirds to a simple
majority. A national referendum would still be required.
This draft fanned the debate, with strong opposition coming even
from
non-governmental
organisations of other countries, as well as established and
newly formed grassroots Japanese organisations, such as
Save Article 9. Per the current constitution,
a proposal for constitutional changes must be passed by a
two-thirds vote in the Diet, then be put to a national referendum.
However, there was in 2005 no legislation in place for such a
referendum.
Koizumi's successor,
Shinzo Abe vowed to push aggressively for
constitutional revision. A major step toward this was getting
legislation passed to allow for a national referendum in April 2007
[9902]. However, by that time there was little
public support for changing the constitution, with a survey showing
34.5 percent of Japanese not wanting any changes, 44.5 percent
wanting no changes to Article 9, and 54.6 percent supporting the
current interpretation on self-defense
[9903]. On the 60th anniversary of the constitution,
on 3 May 2007, thousands took to the streets in support of
Article 9 [9904]. The Chief Cabinet secretary and other top
government officials interpreted the survey to mean that the public
wants a pacifist Constitution that renounces war, and may need to
be better informed about the details of the revision debate
[9905]. The legislation passed by parliament
specifies that a referendum on constitutional reform could take
place at the earliest in 2010, and would need approval from a
majority of voters.
Human rights guarantees in practice
- See also: Human rights in
Japan
International bodies such as the
United
Nations Human Rights
Committee, which monitors compliance with the
International
Covenant on Civil and Political Rights, and
Amnesty International have argued that
many of the guarantees for individual rights contained in the
Japanese constitution have not been effective in practice. Such
critics have also argued that, contrary to Article 98, and its
requirement that international law be treated as part of the
domestic law of the state, human rights treaties to which Japan is
a party are seldom enforced in Japanese courts.
Despite constitutional guarantees of the right to a fair trial,
conviction rates in Japan approach 99%. In one study, the
conviction rate in contested Japanese trials in 1994 was found to
be 98.8%, while the comparable conviction rate in contested
United States federal
trials in 1994 was 30.9%. This was found to be due to the limited
budgets for prosecutors in Japan compared to the United States,
leading them to prosecute only the most solid cases. Bias by judges
was found not to be a factor.
See also
Notes and references
- Constitution of Japan“...do proclaim
that sovereign power resides with the people...” (Preamble); “The
Emperor shall be 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 One)
- John Dower, Embracing Defeat, 1999, pp.374, 375, 383,
384.
- Kishimoto, Koichi. Politics in Modern Japan. Tokyo:
Japan Echo, 1988. ISBN 4-915226-01-8. Pages 7–21.
- Library of Congress Country Study on Japan
- Web page of the Shin Kenpou Seitei Suishin Honbu,
Center to Promote Enactment of a New Constitution, of the Liberal Democratic Party.
In Japanese.
- Rethinking the Constitution: An Anthology of Japanese
Opinion, Uleman, F. (transl), 2008, ISBN 1419641654
- Shin Kenpou Sou-an, Draft New Constitution. As
released by the Liberal Democratic Party on 22 November 2005. PDF
format, in Japanese.
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