Constitution of Japan
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Template:Politics of Japan The Constitution of Japan 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 de facto head of state but exercises a purely ceremonial role. The constitution is perhaps most famous for the renunciation of the right to wage war contained in Article 9.
The constitution was drawn up under the Allied occupation that followed World War II and was intended to replace Japan's previous imperial system with a form of liberal democracy. It is a rigid document and no subsequent amendment has been made to it since its adoption.
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Historical origins
Meiji Constitution
The Constitution of the Empire of Japan of 1889, more commonly known as the Imperial or Meiji Constitution, was the first modern constitution of Japan. Enacted as part of the Meiji Renewal, it provided for a form of constitutional monarchy based on the Prussian model, in which the Emperor of Japan was an active ruler and wielded considerable political power, but shared this with an elected diet.
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The Potsdam Declaration
On 26 July, 1945, Allied leaders Winston Churchill, Harry S. Truman, and Joseph Stalin 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 In addition, the document stated: "The occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives have been accomplished and there has been established in accordance with the freely expressed will of the Japanese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. Prime Minister Shidehara Kijuro and many of his colleagues were extremely reluctant to take the drastic step of replacing the 1889 Meiji Constitution with a more liberal document. In late 1945, Shidehara appointed Matsumoto Joji, 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
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 twothirds 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 LDP, the constitution was not disadvantageous. 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
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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. Suplementary 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
Main article: Government of Japan
The constitution establishes a parliamentary system of government. The emperor carries out most 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 provides 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 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 ones 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 guarantees
- Right to petition government (Article 16).
- Right to sue the state (Article 17).
- Freedom of thought and conscience (Article 19).
- Freedom of religion (Article 20).
- Academic freedom (Article 23).
- Prohibition of forced marriage (Article 24).
- Right to free compulsory education (Article 26).
- Right of access to the courts (Article 32).
- Protection against entries, searches and seizures (Article 35).
- Prohibition of torture and cruel punishments (Article 36).
- Prohibition of ex post facto laws (Article 39).
- Prohibition of double jeopardy (Article 39).
Other provisions
- Renunciation of war: Under Article 9 of the constitution the "Japanese people renounce war as a sovereign right of the nation". To this end the article provides that "land, sea, and air forces, as well as other war potential, will never be maintained". However the courts have ruled that Japan may raise an army, navy and air force provided it is used for the purposes of self-defence.
- 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
Article 96 provides that amendments 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 two-thirds majority of the total number of members of each (rather than of the total number of votes cast). 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.
Proposed changes to the document often come from the political right. This constituency's suggestions include altering Article 9 as well as amending provisions relating to the emperor, so as to explicitly state that he is the "head of state". The latter is suggested in order to clarify the emperor's role and to enhance his prestige, rather than to grant him any new powers.
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. Proposed changes to Article 9 or to the role of the emperor touch on particularly sensitive areas.
LDP proposals in 2005
In August 2005, the 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 include:
- 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 permit corresponding state funding of religious institutions.
- Changes to Article 92 and Article 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.
Per the current constitution, this proposal must be passed by a two-thirds vote in the Diet, then be put to a national referendum. Since there is no legislation providing for a national referendum, this legislation must also be passed. The new draft constitution is sparking debate, including opposition from non-governmental organisations of other countries. A grassroots Japanese organisation, Save Article 9, was formed in 2005 to oppose the changes to Article 9.
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 groups such as 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.
Provisions of the constitution guaranteeing equality have been interpreted as only applying to Japanese nationals, and therefore cannot be invoked by visiting foreigners, or by Japan's millions of native residents of Korean and Chinese descent who do not enjoy citizenship. Furthermore, despite the constitution's egalitarian provisions, Japan is unusual in the developed world in that racial discrimination has not been made an offence in ordinary law.
Despite constitutional guarantees of the right to a fair trial, conviction rates in Japan exceed 99%. Despite Article 38's categorical requirement that "no person shall be convicted or punished in cases where the only proof against him is his own confession" defendants are routinely convicted solely on the basis of a signed confession. Although the same article bans coerced confessions, defendants are commonly held in confinement and interrogated by police for periods of time not permissible in other developed nations. In spite of Article 36's prohibition of torture and cruel punishments, the unusual form of strict regimentation found in Japanese prisons is widely held to be degrading and inhumane.
References
- Kishimoto, Koichi. Politics in Modern Japan. Tokyo: Japan Echo, 1988. ISBN 4915226018. Pages 7–21.
- This article contains material from the Library of Congress Country Studies which, as a United States government publication, is in the public domain. - Japan
- Template:Cite web Web page of the Shin Kenpou Seitei Suishin Honbu, Center to Promote Enactment of a New Constitution, of the Liberal Democratic Party. In Japanese.
- Template:Cite web Shin Kenpou Sou-an, Draft New Constitution. As released by the Liberal Democratic Party on November 22, 2005. PDF format, in Japanese.