GROWTH AND DEVELOPMENT OF

JAPANESE CONSTITUTION

Submitted to:
Mr. Aashutosh Kumar Ahire
Faculty,Political Science, H.N.L.U, Atal Nagar

Submitted by:
Shreya Tulavi
Roll no.141, Section C
Semester IV, B.A. L.L.B. (Honors)

Hidayatullah National Law University

Uparwara Post, Abhanpur, Atal Nagar ,492002
 DECLARATION
I hereby declare that this project titled “Growth and Development of Japanese constitution” is
my own work and represents my own ideas, and where others‟ ideas or words have been
included. I have adequately cited and referenced the original sources. I also declare that I have
adhered to all principles of academic honesty and integrity and have not misrepresented or
fabricated or falsified any idea/data/fact/source in my submission.

Shreya Tulavi

Section C, Roll no. 141

II
 ACKNOWLEDGEMENT
The practical realization of this project has obligated the assistance of many persons. I express
my deepest regard and gratitude for Aashutosh Kumar Ahire sir. His consistent supervision,
constant inspiration and invaluable guidance have been of immense help in understanding and
carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement this
project would not have been a reality.

I take this opportunity to also than the University and the Vice Chancellor for providing
extensive database resources in the library and through Internet. I would be grateful to receive
comments and suggestions to further improve this project report.

I feel highly elated to work on the topic “Growth and Development of the Japanese constitution”.

Shreya Tulavi
Roll no.141, Section C

III
 TABLE OF CONTENTS

Declaration ................................................................................................... II

Acknowledgement ........................................................................................ III

Chapter 1 : Introduction .............................................................................. 1

Literature review .......................................................................................... 2

Research question ......................................................................................... 3

Objectives of the study .................................................................................. 3

Scope of the study ......................................................................................... 3

Methodology of the study ..............................................................................3

Organization of the study .............................................................................. 3

Chapter 2: The Potsdam declaration and occupation ................................ 4

Chapter 3: First effort to revise the Japanese constitution......................... 12

Chapter 4: Salient features of Japanese constitution .................................. 16

Conclusion ..................................................................................................... 18

Bibliography ...................................................................................................26

IV
 CHAPTER 1: INTRODUCTION

Japan’s Political Tradition

The Japanese archipelago, situated off the east of the Asian Continent consists of the four
principal islands of Honshu, Hokkaido, Shikoku, and Kyushu plus thousands of small islands.
In area Japan is 369,622 square kilometers or 147,727 square miles (only for the area under
actual administration of Japan) and it stretches 2,000 kilometers or 1,500 square miles in a
north, south-west direction, between 27 and 45 degree north. Japan is roughly one twentieth
the size of the United States of America, one-eighth of the size of India, but is slightly larger
than that of the United Kingdom or Italy.

Japan is an island empire characterised by complex features and this fact has profoundly
affected the political character of the country during the past two thousand years and more. In
the first place, the island and the mountains made land communications pretty difficult and,
consequently, have produced regional outlook and psychology of the people. Each region has
its own distinct history and traditions and possessed in the past some sort of political identity
too. This sort of localism and fragmentation disappeared after the Restoration in 1868, when
Japan was unified for the first time in her history. Yet this outlook did not disappear
altogether from the minds of the people. Their political behaviour and, as such, the practical
politics of the country are still prominently influenced by the historical legacy of the political
decentralization and localism.

Secondly, Japan‟s insularity provided for her a well defined frontier which created amongst
her people a sense of group identity and strong nationalist feelings. Japan‟s nationalism is
proverbial. Then, unlike Korea, which is physically contiguous to China, the Japanese have

5
developed their own culture by selecting only those elements of civilisation which suited their
genius and served their needs. In due course such elements were assimilated into Japanese
culture completely and „ „ in such a manner as to lose their original identity, frequently giving
rise to prodtucts far different from and even superior to original.” The cultural homogeneity of
the Japanese has produced such a sense of social solidarity amongst them that at no stage of
Japan‟s history there has been development of any kind of racial antagonism. Racism,
therefore, has been unknown throughout her history and racial problems have never arisen in
Japanese politics for racial groups have never existed to form a minority. Japan had a
population of 121,050,000 as of October 1, 1985 of which only 0.7 per cent belonged to
registered minority group. There is no other major nation with so small an admixture of
identifiable minority elements. This also helps to explain the strong nationalism frequently
displayed by the Japanese in modern times. Their geographical isolation, common language
and long history combined with racial identity to facilitate the development of very strong „in-
group‟ feeling against foreigners. The result is a nation which although subject to a number of
domestic cleavages, has in the past usually presented a strong and united front to the rest of
the world. Nature has also endowed Japan with a degree of national security. Prior to 1945 no
one had ever successfully invaded Japan since the pre-historic times. Her national
development was, therefore, achieved without the disruptive effects of foreign invasions and
in accordance with the expression of the native genius. “This fact”, according to Robert Ward
“has had two prime consequences for the Japanese. First, it has enabled them to tum on and
off almost at will the stream of intercourse with the Asian countries or the rest of the world. It
made possible. For example, the effective adoption of deliberate policy of national seclusion
for almost 250 years prior to 1854. Second, it has enabled the Japanese to concentrate
exclusively and almost fiercely on domestic political issues, domestic power struggles and
with little or no concern for the effect that might have on the external safety of the nation.
National security carried to this extent is unparalleled among the other great states of modern
history.”

There are three stages which cover the development of the Japan‟s constitutional history--
from the dawn of history to l 185 A.D., from 1185 to 1868; and the third from 1868 onwards.
Chitoshi Yanaga describes the three stages as pre-feudal period, the feudal period, and the
post-feudal period. For our purposes we are primarily concerned with the post-feudal period.

6
The end of the eighteenth century witnessed vital changes in the social and political life of
Japan. The country was being put to an increasing pressure for opening her ports to foreign
ships and there appeared to be no alternative to the Government but to revise the previous
decision. There were also quite visible signs everywhere indicating decay of the feudalistic
social and political structure. Historic clan enmities against the Tokugawa became
significantly prominent. All these factors coupled with the dissatisfaction of the Samurai on
their deteriorating economic and social status gave birth to a movement for the restoration of
the power to the Emperor. The movement was strengthened when in 1854, Japan abandoned
the policy of isolation and concluded a treaty of amity with the United States to be soon
followed by similar treaties with other European countries. The enemies of the Shogun found
a favourable climate to impress upon the Japanese people that such treaties posed a serious
threat to the integrity of Japan and would lead to Western imperialistic exploitation. The
movement gained momentum and its leaders rallied round the Emperor by proclaiming:
“Revere the Emperor, expel the barbarians.” The Tokugawa regime ultimately collapsed.

7
 RESEARCH QUESTIONS

 How did the Japanese constitution came into existence and its growth with the passage
of time?
 What were the efforts to revise the constitution?
 What are the salient features of the constitution?

OBJECTIVES OF THE STUDY

 To study about the history and origin of Japanese Constitution
 To study about the Potsdam declaration and occupation
 To study about the first effort to revise the Japanese constitution
 Salient features of the constitution

SCOPE OF THE STUDY

The scope of study includes the purview within which the project work lies. This topic has
been clearly enunciated with the help of articles from magazines, newspapers and other such
e-article databases that have been explored.

METHODOLOGY OF THE STUDY

This project work is descriptive and analytical in approach. It is largely based on secondary
and electronic sources of data. Internet and other references as guided by faculty of political
science were primarily helpful for the completion of this project. My research methodology
requires gathering relevant data from the specified books and other online sources. Several
magazines and reports and newspapers and journals were used in the study.

ORGANIZATION OF THE STUDY

At first the project talks about the basic introduction of the Japanese constitution. Secondly
it mentions the Potsdam declaration and the occupation, it also specifically mentions the Mc
Arthur constitution. Thirdly it talks about the efforts that were put in to revise the
constitution. At last, salient features of the constitution has been discussed.

8
 CHAPTER 2: THE POTSDAM DECLARATION AND OCCUPATION

According to the commonly accepted story, Japan chose to spurn the Potsdam Declaration of
July 26, 1945, which called upon her to surrender, and thereby brought down upon her head
the atomic bombing and the Russian declaration of war against her. A close examination of
the Japanese response to the Potsdam Declaration will show, however, that the Japanese
government never intended to reject the Potsdam Declaration. Its policy was that of
mokusatsu, which was quite a different thing from rejection.' The subsequent course of event
predicated on the assumption that Japan had rejected the Potsdam Declaration represents a
tragedy of errors for which the major responsibility must be attributed to the inexcusable
bungling of the Japanese officials. But some measure of responsibility also rests upon the
more excusable but unfortunate deficiency in per-ception on the part of the Western allied
leaders and upon the calculated reluctance of the Russian authorities to share their
information with their Western allies.
It is no new revelation that Japan was moving toward surrender long before the issuance of
the Potsdam Declaration by the Allied powers on July 26, 1945. Some preliminary
maneuvers in that direction were apparent as early as the spring of 1944. By the time the
Suzuki cabinet assumed office on April 7, 1945, the securing of peace on any terms was the
unannounced but clearly recognized aim of the Japanese government.

An appearance of negotiating for terms less onerous than unconditional surrender was
maintained, It seems clear however that in extremis the peace-makers would have peace, and
peace on any terms. This was the gist of the advice given to Hirohito by the Jushin in
February, the declared conclusion of Kido in April, the specific injunction of the Emperor to
Suzuki on becoming premier which was known to all members of the Cabinet."As the climax
to the repeated efforts to establish indirect contact with the Allied powers, the Japanese
government in the early part of July,1945, sought to send Prince Fumimaro Konoye to
Moscow to solicit Russia's intercession with the United States in order to stop the war.
Konoye has testified that when Sato, the Japanese ambassador at Moscow, sounded out the
Russians they had indicated they would not consider a peace role unless the terms were
unconditional surrender. Apparently with full knowledge of this Russian attitude, the
Emperor instructed Konoye to accept any terms he could get.' When the Russians on July 13
put off the Japanese overtures with the excuse that Stalin and Molotov were about to leave
for Potsdam and could therefore give no answer until their return, the Japanese came to
suspect that the eventual answer might be unfavorable, and hence they even toyed with the
idea of broad casting a peace appeal directly to the United States."
In view of this background which indicates that an overwhelming desire for peace at any
price had come to obsess the Japanese leaders by this time, it hardly seems likely that they
would have summarily rejected the Potsdam Declaration. And, indeed, a careful examination
will reveal that the Japanese government never did actually reject the Potsdam Declaration,
although it is true that the confused character of the Japanese action caused the Allied
powers to assume that Japan had rejected it.
The Potsdam Declaration became known to the Japanese authorities at a time when they
were hoping against hope that the Russians would agree to receive Konoye's mission. On
July 2o, despite the fact that Japan's desires had previously been intimated to the Russians
many times, a message was relayed from the Russian leaders already at Potsdam to the
effect that Konoye could not be received unless the purpose of his mission was defined more
clearly. On July 25 the Japanese government replied in most specific terms that Konoye's
mission would be for the purpose of requesting Russia's good offices for peace with the
United States and Great Britain, and of seeking an improvement of Russo-Japanese
relations.
On the very next day came the Potsdam Declaration in which the governments of the United
States, Great Britain, and China demanded the unconditional surrender of Japan on pain of
complete annihilation if she refused. It was a pretty clear indication that the Russians, for
reasons of their own, had failed to acquaint their allies with the efforts which Japan was
already making to approach the Allied powers for peace. But the Japanese did not become
entirely discouraged, for they discerned in the terms of the Potsdam Declaration a definition
of the "conditions" of the unconditional surrender. The Japanese Foreign Office,
immediately sensing the significant difference between these terms and the terms of the
surrender imposed upon Germany, argued that they provided an attractive basis for the
opening of discussions with the Allies. The majority of the members of the cabinet, as well
as others in high quarters, were inclined toward this point of view.
As was to be expected, however, War Minister General Korechika Anami, supported by the
army and navy chiefs of staff but not by the navy minister, argued that the Potsdam terms
were too severe and urged that the government issue a point by point rebuttal of the Potsdam
Declaration for foreign broadcast. At the same time the army insisted that all knowledge of
the Potsdam Declaration be strictly withheld from the Japanese public. But Foreign Minister
Shigenori Togo, knowing that news of this sort was bound to leak out anyway and anxious
to prepare the public for an unfavorable peace which he considered inevitable, argued in the
cabinet from two until six o'clock on the afternoon of July 27 for the prompt release of the
Potsdam Declaration to the newspapers.
Togo finally won his point, and late that evening the text of the Potsdam Declaration was
made threatening portions warning of "utter destruction of the Japanese homeland," the
clause concerning "stern justice" for all war criminals, the clause promising the return of the
disarmed soldiers "to their homes with the opportunity to lead peaceful and productive
lives," and a few strong words here and there like "self-willed military cliques of traitors."'
The reason for these deletions was the fear that these words would invite popular disquiet,
but the effect of this toning down of the original text was to make the Potsdam Declaration
appear more lenient and attractive to the Japanese public than it really was.
The government, in contrast to the sentiments of the army and navy, thus obviously had no
intention of rejecting the Allied demands, and, although it could not immediately bring itself
to accept the Potsdam Declaration in toto, fumbled around for some way to respond to the
Allies. Its hope was to convey its feelings through the Russians, but there had been no
response to its latest communication of the twenty-fifth to the Soviet government. In the
meantime, the cabinet decided not to
commit itself publicly one way or the other, and, while allowing the press to publish the text
of the Potsdam Declaration, ordered that there should be no editorial comment or criticisms
whatever. Obviously the enemy's demand for surrender could not be praised, but equally
obviously the government did not want it criticised inasmuch as tentative moves toward its
conditional acceptance were being contemplated. The only possible course for the moment
was to remain silent, and the government accordingly announced that its policy was one of
mokusatsu.
But here the Japanese language played a fateful trick on the government's policy.
Mokusatsu is a word which has no exact equivalent in the English language. It is a word
which is ambiguous even in the Japanese.
 It might be translated roughly as "to be silent" or "to withhold comment" or "to ignore." "To
withhold comment" probably comes the closest to its true meaning, implying that
something is being held back, that there is something significant impending. Certainly that is
what the Japanese government meant . Hence it was with great displeasure that the Foreign
Office officials greeted the Tokyo Mainichi's headline "Laughable Matter" spread above the
text of the Potsdam Declaration, although obediently enough the paper ran no editorial
comment.
The Japanese government soon discovered to its dismay, however, that the meaning of its
policy of mokusatsu had been completely misinterpreted by the outside world. Japan's own
propaganda agencies were partly to blame, for Radio Tokyo and the Domei News Agency,
without stopping to reflect on the implications of the word mokusatsu, had rushed to
broadcast to the world in English the bald statement that Japan was "ignoring" the Potsdam
Declaration. The cabinet was even more to blame for having used such an ambiguous term
in the first place without taking adequate precautions to forestall an embarrassing
interpretation. In any case, the world's interpretation was that Japan had spurned the
Potsdam Declaration, disdaining even to take notice of it. Thus the Japanese government's
intention of holding the matter open for an eventual favorably inclined response came to
naught with the ensuing stiffening of the Allied attitude.

If the Americans had fully realized how favorably disposed toward the Potsdam Declaration
so many of the key Japanese leaders were from the beginning, it is conceivable that that
knowledge might have significantly modified the decision to use the atomic bomb.
Apparently that realization did not exist, to judge from American reaction to Japan's supposed
response to the Potsdam Declaration. To a Japanese, that is a regrettable and disappointing
fact, for American military intelligence seemed to know so surprisingly much about so many
other things in wartime Japan. The failure of the Americans to discern the real attitude of the
Japanese government toward the Potsdam Declaration, though regrettable, is easy enough to
understand and excuse. But the failure of the Russians to inform their Western allies of
Japan's readiness for surrender is something else again. For the Russians could have easily
enlightened their allies of Japan's eagerness for peace if they had been so minded.
Obviously Russia was determined that Japan should be given no opportunity to surrender
until after Russia had declared war on Japan. And, cynically, the Russian declaration of war
on Japan, when it came on August 8, stated:

The demand of the Three Powers-the United States of America, Great Britain and China-of
July 26th of this year on the unconditional surrender of the Japanese armed forces has been
declined by Japan. Thus, the proposal of the Japanese Government, addressed to the Soviet
Union on mediation in the Far Eastern War, loses every ground. Considering Japan's refusal
to surrender, he Allies proposed to the Soviet Government that it join the war. The Soviet
Government accepted the Allies' proposal and joined the declaration of the Allied Powers of
July 26th of this year.' To the Japanese government which had never intended to reject the
Potsdam Declaration outright and which had counted on the Russians to make known to the
Allies Japan's readiness to surrender, this was the crowning irony.
CHAPTER 3: FIRST EFFORT TO REVISE THE JAPANESE
CONSTITUTION

On May 3, 1947, Japan‟s postwar constitution goes into effect. The progressive constitution
granted universal suffrage, stripped Emperor Hirohito of all but symbolic power, stipulated a
bill of rights, abolished peerage, and outlawed Japan‟s right to make war. The document was
largely the work of Supreme Allied Commander Douglas MacArthur and his occupation staff,
who had prepared the draft in February 1946 after a Japanese attempt was deemed
unacceptable.

As the defender of the Philippines from 1941 to 1942, and commander of Allied forces in the
Southwest Pacific theater from 1942 to 1945, Douglas MacArthur was the most acclaimed
American general in the war against Japan. On September 2, 1945, aboard the USS Missouri
in Tokyo Bay, he presided over the official surrender of Japan. According to the terms of
surrender, Emperor Hirohito and the Japanese government were subject to the authority of the
Supreme Commander for Allied Powers in occupied Japan, a post filled by General
MacArthur.

On September 8, Supreme Commander MacArthur made his way by automobile through the
ruins of Tokyo to the American embassy, which would be his home for the next five and a
half years. The occupation was to be a nominally Allied enterprise, but increasing Cold War
division left Japan firmly in the American sphere of influence. From his General
Headquarters, which overlooked the Imperial Palace in central Tokyo, MacArthur presided
over an extremely productive reconstruction of Japanese government, industry, and society
along American models. MacArthur was a gifted administrator, and his progressive reforms
were for the most part welcomed by the Japanese people.

The most important reform carried out by the American occupation was the establishment of a
new constitution to replace the 1889 Meiji Constitution. In early 1946, the Japanese
government submitted a draft for a new constitution to the General Headquarters, but it was
rejected for being too conservative. MacArthur ordered his young staff to draft their own
version in one week. The document, submitted to the Japanese government on February 13,
1946, protected the civil liberties MacArthur had introduced and preserved the emperor,
though he was stripped of power. Article 9 forbade the Japanese ever to wage war again.

Before Japan‟s defeat, Emperor Hirohito was officially regarded as Japan‟s absolute ruler and
a quasi-divine figure. Although his authority was sharply limited in practice, he was consulted
with by the Japanese government and approved of its expansionist policies from 1931 through
World War II. Hirohito feared, with good reason,that he might be indicted as a war criminal
and the Japanese imperial house abolished. MacArthur‟s constitution at least preserved the
emperor as the “symbol of the state and of the unity of the people,” so Hirohito offered his
support. Many conservatives in the government were less enthusiastic, but on April 10, 1946,
the new constitution was endorsed in popular elections that allowed Japanese women to vote
for the first time. The final draft, slightly revised by the Japanese government, was made
public one week later. On November 3, it was promulgated by the Diet–the Japanese
parliament–and on May 3, 1947, it came into force.

In 1948, Yoshida Shigeru‟s election as prime minister ushered in the Yoshida era, marked by
political stability and rapid economic growth in Japan. In 1949, MacArthur gave up much of
his authority to the Japanese government, and in September 1951 the United States and 48
other nations signed a formal peace treaty with Japan. On April 28, 1952, the treaty went into
effect, and Japan assumed full sovereignty as the Allied occupation came to an end.

First Effort to Revise the Japanese Constitution

The declared object of the Potsdam Declaration was to establish in Japan a peacefully inclined
and respon-sible government in accordance with the freely expressed will of the Japanese
people and it was made a condition precedent for the withdrawal of the Occupation Forces of
the Allies. On October 4, 1945, General MacArthur urged upon Prince Konoye Fumimaro,
Vice-Premier in the Higashi Kumi Cabinet, to take the initiative in revising the Meiji
Constitution. Prince Konoye was not taken in the succeeding Shidehara Cabinet, but he
managed to obtain a commission from the Emperor to investigate whether the Constitution
required any revision and if so to what extent. Konoye held a number of private conferences
with George C. Atcheson Jr., SCAP‟s9 Political Adviser, and three US. State Department
Officials who happened to be in Tokyo then. Various parts of the Meiji Constitution, which
these officials felt required revision, were pointed out to Konoye, but no reference was made
for the abolition of the institution of the Emperor.'0 There was, however, widespread feeling
among the Allies that Konoye should have nothing to do with any scheme of constitutional
reforms because of his alleged war guilt. It had been stated that the conference held between
US. State Department officials and Konoye angered the Supreme Commander and he directed
the former to have no more parleys With Konoye.

On November 1, SCAP Headquarters announced that MacArthur “had not chosen Konoye to
reform the Japanese Constitution.”

But Konoye continued on his job and late in November submitted his report on constitutional
reforms to the Emperor. He recommended that the Meiji Constitution required revision with a
view to strengthening the Diet, but such revisions should not destroy the basic principle of the
Constitution that sovereignty resided in the Emperor. In December Konoye was indicted as a
war criminal, but before he could be arrested, he committed suicide.

In October, just When Prince Konoye had obtained his commission from the Emperor
authorizing him to investigate whether the Constitution needed revision, General MacArthur
summoned Prime Minister Shidehara and pointedly advised him that the Government of
Japan must immediately be reformed and, accordingly, the Constitution required to be
liberalised. The Prime Minister pleaded that the legislation enacted by the Diet to enlarge the
franchise and other reforms connected thereto adequately served the purpose and,
consequently, there was no need to revise the Constitution. But MacArthur did not agree. He
rather pulled up the Prime Minister and forced him to set up a committee to recommend
proposals for reforms and revision of the Constitution.

The Committee on the Constitution, headed by Matsumoto, Togi, was not in the beginning
inclined to propose substantial alterations in the Constitution. But toward the end of
December, when pressed hard, it was made to suggest some concrete proposals for revision.
By that time the political parties, too, had presented their proposals for reforms. The Liberal
and Progressive Parties proposed that the power of the Diet should be increased, but without
impairing the principle that sovereignty resided in the Emperor. The Social Democratic Party
recommended that while sovereignty resided in the State the political authority should vest in
the Diet and the Emperor, the D' t sharing the most important part of it.
The Communists, on the other hand, pleaded for the establishment of a Republic, and the trial
of Emperor as a war criminal.

The Matsumoto Committee submitted its draft of the revised Constitution on February I 1946,
which Was reelected by the Supreme Arthur thereupon directed the SCAP Government
Section to prepare the draft which should serve as a ' „ guide' ' for the Japanese Government.
In his directive to the SCAP Government Section, MacArthur„s instruction was that “guide
should provide for the institution of the Emperor, but the powers of the Emperor should be
exercised according to the WI" of the people.“ The Government Section worked with utmost
speed to prepare the draft Constitution and within a week's time it completed the job. The
draft Constitution was presented to the Japanese Government on February 13. It is reported
that General Courtney Whitely, Chief of Government Section, while presenting the draft
Constitution which was intended to serve as a “guide” to the Cabinet, made its members
clearly understand that if they did not accept the general principles contained therein, General
MacArthur would present the Constitution straightway to the people of Japan and in that case
“The person of the Emperor” could not be guaranteed.

The Shidehara Government was left with no option but to accept the draft. When it was
shown to the Emperor he also observed that there was no other alternative. The Prime
Minister, then, reported to his Cabinet that „we are making an extremely grave commitment in
accepting such a Constitution as this. Perhaps this commitment will also bind our posterity.
When this draft is made public, some will applaud and others will keep silence. The latter will
undoubtedly be highly indignant at bottom towards us. However, I believe that we are
following the only possible course in view of the situation controlling us." There was a deep
sense of shock and it was known to all that almost all Ministers wiped tears from their eyes.

The adoption of the draft constitution was, thus, an accomplished fact. Still to observe the
formality the draft was sent to the Matsumoto Committee to serve as a “guide.” The
Committee made some minor revisions in it in close consultation with the Government
Section, SCAP. It was then sent back to the Cabinet. The draft was made public on March 6,
as if it was actually Shidehara Government„s own revision of the Constitution. To make it still
reassuring an Imperial Rescript announced the adoption of the draft and explained the
democratic principles on which it was based. General MacArthur, too, kept with the track and
issued his approval of the draft constitution to authenticate that it was the handiwork of the
Japanese themselves and not an American made constitution.

The Draft Constitution was, then, finally submitted to the Diet for its approval in accordance
with the provisions of the Meiji Constitution. But the Houses of the Diet took pains to fully
debate it “always honouring the fiction that it was of Japanese origin.” The Diet made some
minor alterations too. But all this was done with the final approval of the Occupation
Authorities The Diet gave its approval on October 7, 1946, and the Constitution was
promulgated on November 3, 1946 to synchronize with the birthday of Emperor Meiji.
 CHAPTER 4: SALIENT FEATURES OF THE JAPANESE CONSTITUTION

1) The Constitution as a Document

Although the Constitution was adopted as an amendment of the Meiji Constitution, 1889, but
actually it was a total revision which drastically transformed the nature and structure of the
Government in Japan. It consisted of 103 Articles grouped in X1 Chapters (Chapter XI
contains Supplementary Provisions, Articles 100 to 103) written in a simple style and easily
comprehensible language. Both in broad principle and in specific details the Constitution of
1946 differs completely from the Constitution of 1889, which it replaced. It‟s three basic
principles are : sovereignty of the people, the guarantee of the Fundamental Rights, and the
renunciation of war, the last being a most peculiar feature of the Constitution and an object of
the country‟s greatest Constitutional controversy. Japan‟s Constitution is the only instance
which constitutionally renounce: war.

The structure of the government which the Constitution sets up completely supplants the
institutions Japan had proudly inherited since the “ages eternal.” It was the avowed policy of
the Allied Powers to obliterate the image of divinity which the Japanese people believed
surrounded the Throne and to eliminate completely from their minds the concept of national
policy.

2) Sovereignty of the People

Sovereignty of the people which runs through the entire Constitution is its basic feature. It is a
revolutionary change as it destroys the old principle of Imperial Sovereignty. The Meiji
Constitution was a gift of the Emperor to the nation and its Preamble declared that “the right of
sovereignty of State, We (the Emperor) have inherited from our Ancestors, and we shall
bequeath to our descendants.‟ ‟ It further provided, “the Empire of Japan shall be reigned over
and governed by a line of Emperors unbroken for ages eternal.‟ ‟ Article IV provided that „The
Emperor it the head of the Empire, combining in himself the rights of sovereignty and exercises
them according to the provisions of the Constitution.”

Under the Constitution of 1946 sovereignty belonged to the people and that the Emperor was
only the symbol of the State and unity of the people,‟ and be derived his position from the will
of the people with whom “resides sovereign tower."

3) Renunciation of war

A peculiar, rather unprecedented, feature of the Constitution is that it unequivocally renounces

war for ever. Article 9, which constitutes a single Article in Chapter II and is titled
“Renunciation of War,” reads : “Aspiring sincerely an international peace based on justice and
order, 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.” It is provided that “in order to
accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war
potential, will never be maintained. The right of belligerency of the State will not be
recognised.” The ideals of liberty and „ „desire for peace for all time” and the Japanese people
pledged by their “national honour to accomplish these high ideals and purposes” by resolving
that never again “shall we be visited with the horrors of war through the action of government”
and expressed their determination to “secure for ourselves and our posterity the fruits of
peaceful co-operation with all nations and the blessings of liberty throughout the land.‟ ‟

The constitutional provision of renunciation of war should, indeed, be the most cherished goal
of State policy if all other States provided for the same in their Constitutions and their
government.

4) Rigid Constitution

The supremacy of the Constitution is ensured if it is not alterable under the ordinary law-
making procedure. The Constitution of Japan prescribes the procedure for amending the
Constitution and it is distinct from that of an ordinary. It means that the Constitutional law is
not at par with the statutory law and the former has precedence in status over the latter, that is,
the constitutional law is fundamental and supreme. Article 96 provides that proposals for
amending the Constitution may be initiated either in the House of Councillors or in the House
of Representatives. Such a proposal must separately pass in each House by a majority of two-
thirds or more of its membership. After the amendment has been passed by the Diet, it is
submitted to the people at a referendum for their ratification. If majority of the people voting at
the referendum approves it, it becomes an amendment of the Constitution and is immediately
promulgated by the Emperor “in the name of the people.”

The Constitution has not so far been amended even once. In spite of the strong pressure of the
Conservatives for its revision and the setting up of a Commission on the Constitution

2) Judicial Review

The Constitution explicitly vests in the Supreme Court the power of judicial review, though it
establishes a unitary system of government. Article 81 provides that the Supreme Court is the
court of last resort with power to determine the constitutionality of any law, order, regulation,
or official Act, Here Japan introduces an American element of institutions. But whereas in the
United States the Supreme Court does not derive its power of judicial review from the
Constitution, the Japanese Supreme Court has the constitutional power to interpret the
Constitution and to maintain its sanctity and supremacy.

The Supreme Court in Japan has not so far held, with the exception of certain laws passed to
implement Occupation Directives, any law, order, regulation or official Act void and
unconstitutional, but has upheld a few as constitutional. In the Sunakawa case (1959) the
Supreme Court declared that the stationing of American forces in Japan did not violate Article
9 of the Constitution. It also set the principle that unless a treaty is “obviously unconstitutional
and void, it falls outside the pview of the power of judicial review granted to the Court.‟ ‟

3) Parliamentary system of government

The Government of the United States had decided to establish in Japan a Parliamentary system
of government in preference to the Presidential system and the Secretary of State, Bymes, had
accordingly advised George Atcheson, Jr., SCAP‟s Political Adviser. But a peculiar feature of
Parliamentary government, which the Constitution established in Japan, is that the Emperor
does not perform even those acts and functions which are associated with the constitutional
Head of the State, for example, appointment of the Prime Minister and dissolution of the
legislature. The Emperor is the symbol of the State and of the unity of the people who derives
his position from the will of the people. The Executive power is vested in the Cabinet and it is
made collectively responsible to the Diet. The Prime Minister heads the Cabinet and a majority
of the number of Ministers, including the Prime Minister, must be members of the Diet. The
Diet designates the Prime Minister and on his resignation the Cabinet resigns en masse.23 If
the House of Representatives passes a no-confidence resolution or rejects a confidence
resolution, the Cabinet resigns en masse.24 All these are the attributes of a Parliamentary
system of government and ensure the smooth working of the Cabinet. In the United Kingdom
these well-recognised principles of the Cabinet government are the result of deep-rooted
government.

4) A Unitary Constitution

The 1946 Constitution of Japan is unitary and all authority flows from the Government at
Tokyo, though there is much of devolution. The Provinces derive their authority in exercise of
their jurisdiction and powers from the Acts of the Diet. The Diet may expand or diminish that
authority and jurisdiction as and when it may deem necessary and proper. The provinces are,
thus, subordinate units of Government and they do not possess plenary powers as in federal
polity.

5) Diet is Bicameral

The Diet is bicameral in structure and consists of two chambers: the House of Councillors and
the House of Representatives. The House of Councillors consists of 250 members, out of which
150 are elected on a geographical basis whereas the remaining 100 are elected by the nation at
large; a voter, thus, exercises two votes, one for the candidate in a local constituency and the
other for the candidate in the national constituency. The term of office is six years with one-
half of the Councillors retiring after every three years. The Chamber is not subject to
dissolution. The House of Representatives consists of 51 1 members elected for a term of four
years and the House is subject to dissolution. Both the Houses of the Diet possess identical
legislative powers, but in case the House of Councillors makes a decision different from the
House of Representatives and such a difference cannot be resolved in the Joint Committee of
the two Houses, it becomes a lbw of the Diet when the House of Representatives passes the Bill
for the second time by a majority of two-thirds of members present. The Constitution
unequivocally establishes the supremacy of the House of Representatives over the House of
Councillors in financial matters.
6) Local Autonomy

Finally, the Constitution prominently introduces the principle of local autonomy. Local
Governments, prefectures and city, town and village municipalities have been granted by the
Constitution extensive rights of self-government. Article 93 provides that the „ „local public
entities shall establish assemblies as their deliberative organs” and that “the Chief executive
officers of all local public entities, the members of their assemblies, and such other local
officials as may be determined by law shall be elected by direct popular vote within their
several communities.” The Local Autonomy Law, 1947, which supplements Article 92 of the
Constitution, provides for the exercise of initiative and recall by the voters of local entities.
Such a democratic potential was hitherto unknown in Japan.
 CONCLUSION
Pacifism, popular sovereignty, and the guarantee of fundamental human rights have served the
nation well. Pacifism, coupled with powerful assistance from an international situation that has
not produced a credible threat to Japan's security, has spared the country involvement in war and
the
staggering costs of becoming a military superpower, thus freeing resources for the betterment of
national life. Popular sovereignty has resulted in a system of government and politics that has
maintained domestic tranquillity, enabled the government to work effectively, if not perfectly, in
addressing domestic and foreign problems, and spared the country from the debilitating
effects of political instability. Fundamental human rights have permitted both individuals and
groups to function with an unprecedented degree of political, social, and economic freedom.
The rhetoric, surely not empty in this instance, of the preamble provides the means for a broader
evaluation of the three principles. The Japanese people have not been "visited with the horror of
war through the action of government" for virtually half a century. They have preserved their
"security
and existence" and in the process have come to "occupy an honoured place in international
society." Government has been treated as "a sacred trust of the people," in spite of a far from
flawless performance, through the firm rejection of revision of its constitutional basis. Political
parties, competition among them, and free elections have assured that the government and its
leaders have derived "their authority from the people," that the powers of government "are
exercised by representatives of the people," and that beyond challenge the benefits of such a
government have been "enjoyed by the people."
The three fundamental principles have operated powerfully to make a Constitution, which
originated from a military occupation and was based on concepts arising in a radically different
political, social, and historical environment, into the broadly accepted and firmly rooted
fundamental law of a viable democracy. The people of Japan made the Constitution their own,
and thus carried to completion one of the most successful and significant political
transformations of the twentieth century.
One determination that has yet to be made is whether the Constitution will endure into the future.
We can predict with considerable confidence that as long as the pattern ofJapanese national life
remains roughly as it has been for the past four decades, the nation will remain stable, and its
Constitution will flourish.
We cannot predict the shape of the forces that may change the course: the shifting patterns of
world politics, both near and far from Japan's island redoubt; the state of the Japanese and world
economies; the social, political, and economic consequences for Japan of the global
environmental crisis; and the molding influence on constitutionalism of possible fundamental
shifts in the deep currents of Japanese politics.
The year 2005 will be appropriate for reexamining Japan's constitutionalism. In that year, the
Sh6wa Constitution will witness its fifty eighth anniversary, marking the same span of years
covered by the Meiji Constitution. The national tragedy of a physically and spiritually
devastating lost war brought the old constitutional order to an end. It is not unreasonable to hope
that the fifty-eighth year of the current constitutional order will witness not a destructive tragedy
but a confirmation of the brilliance of the achievement of the Japanese and American founding
fathers in building a strong, durable, and democratic Constitution based on pacifism, popular
sovereignty, and the guarantee of fundamental human rights.
 BIBLIOGRAPHY

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