Japan’s 1947 Constitution was one of the most groundbreaking liberal democratic constitutions of its time. Made up of 103 articles and just under 5,000 words, it enshrines a wide range of individual human rights and civil liberties, renounces war in its famous Article 9, ends feudalism, and transforms Japanese society from one under imperial rule to one where citizens live under democratic rule.
United States Occupation Forces under Supreme Commander For Allied Powers (SCAP) General Douglas MacArthur were concerned that a future Japanese government might try to amend the Constitution to remilitarize. With that in mind, they made the document extraordinarily difficult to change. Any amendments require approval of two-thirds of each of the Lower and Upper Houses of the Diet and a majority of voters in a national referendum.
As a result, Japan has the world’s oldest written constitution that has never been revised. By comparison, India’s constitution, which came into force after its independence in 1950, has been amended over 100 times, and Germany’s Allies-drafted 1949 constitution more than 50 times.
The current Japanese Constitution came into force on May 3, 1947, some 20 months after the Occupation began following the war’s end. Yet, this document has taken on almost mystical qualities.
Who and how was it created? How does it compare to other constitutions globally? What might be changed to make it more current and supportive of Japanese citizens’ aspirations looking to the future?
A ‘MacArthur Constitution’?
One of the first directives from SCAP was to replace the Meiji Constitution of Japan that had been in place since 1890.
Two attempts began in October 1945. Initially encouraged by SCAP, the pre-war prime minister and member of the imperial family, Fumimaro Konoe, led one effort. It was quickly rejected even before Konoe’s suicide in December 1945, in the early hours just before his planned arrest by GHQ for alleged war crimes.
A committee formed by the newly formed Japanese Diet on October 13, 1945, led the second effort. Their first draft was presented to GHQ in January 1946 and rejected out of hand.
By this point, exasperation had set in, and General MacArthur personally wrote an outline of what he had in mind. He then ordered a team within the Government Section of his GHQ to produce a new constitution based on that outline which remarkably they did in about 10 days.
That so-called “MacArthur draft” was then handed to the Diet committee on February 13, 1946.
Over the next nine months, there was considerable give and take. The future legal status of the Emperor, the continued existence of the pre-war peerage, among others, were the subject of heated debates.
Multiple proposed changes to the document were made by the Diet committee, some quite material. And many more changes were made to the official Japanese wording. Each was scrutinized, some rejected, and others approved by Occupation personnel.
Essentially, what the Government Section of MacArthur’s GHQ tendered in February 1946, with all changes subsequently approved by SCAP, was then submitted by Prime Minister Shigeru Yoshida and ratified by the Diet. It was formally promulgated 75 years ago, on November 3, 1946.
How Does it Compare to Other Modern Constitutions?
The Japanese Constitution is unusually short. There are less than a handful in the world that are shorter. But it also has other unusual characteristics as compared to most constitutions in the world.
It devotes a disproportionate amount of detail to an elucidation of civil rights and liberties. But it is vague about governing bodies beyond establishing a bicameral Diet with representatives elected in popular elections. That combination of details on rights but vagueness on structure makes it quite unusual, perhaps even unique.
What Areas Could be Changed?
Keeping in mind that not every legal change needs to be in the 1947 Constitution, here is a partial list of the areas that have been frequently proposed for updating by political parties and academics:
- Change Article 9 to explicitly legalize the Self-Defense Force.
- Create new constitutionally protected rights to free education up to high school and a “clean environment.”
- Change voting rights: Direct election of the prime minister; mandatory voting.
- Change the authority of the prime minister: Increase authority during an emergency; limit power to call snap elections.
- Change the government structure: Create a new constitutional court that would exclusively deal with constitutional matters; merge the Upper House with an expanded Lower House; revise the current 47 prefecture system into regional blocks.
The most famous provision of the Constitution establishes Japan’s renouncement of war to resolve international disputes.
While the postwar Occupation was still underway, but with his attention now on the Korean Peninsula, General MacArthur thought better of the severity of the provision. He began applying pressure on Yoshida to create a Japanese force that could protect Japan without US military forces.
The Supreme Command of the Allied Powers itself pushed the argument that Article 9 did not prohibit self-defense.
Yoshida eventually caved, and Japan began a 70-year journey of periodically updating the interpretation of Article 9 to enhance the capability and role of Japan’s self-defense forces.
This journey commenced in July 1950 with the creation of a 75,000-man “National Police Reserve.” It was a name proposed by Yoshida, but a force that the US military armed with tanks, aircraft, and artillery.
Under continued pressure from SCAP, it grew to 110,000 men in 1952 under a new name, “National Safety Force.”
In 1954, it became the Self-Defense Force, and today it is the 5th most powerful military in the world. At the same time, it is a force that some Japanese legal scholars and members from a few opposition parties, such as the Japan Communist Party, continue to call “unconstitutional” and advocate its complete dissolution.
There are a variety of proposed amendments. The only one thought to have any chance of being approved is a simple addition that expressly names the “Japan Self-Defense Force” as fully compatible with the war-renouncing provisions of Article 9.
Several parties both in the ruling camp of the Liberal Democratic Party (LDP) and Komeito coalition and among the opposition have proposed new constitutionally guaranteed rights. The most frequently mentioned are free education and a right to a clean environment.
Many European constitutions have added environmental rights in their most recent amendments. With the global focus on climate change, these are likely to be the least controversial of all proposed amendments.
Given Japan’s recent voter turnout was a tick under 56%, the third lowest in history, there may be momentum building to consider measures to encourage eligible voters to exercise voting as not just as a right but also a civic duty.
The stick: Not mentioned as frequently but also worthy of discussion are proposals to “mandate” voting, perhaps in the form used in Australia and several other countries that had voter turnout issues in their past.
The carrot: Allowing for the direct election of the prime minister is another way to try and gain more voter attention to the nation’s politics and participation in the political process.
Give a Little but Take Away a Little?
What happens if there is a massive earthquake or other emergency that seriously impacts the ability of the central government to function, especially should it take place when the Diet is not in session? The LDP and Japan Innovation Party (Ishin) support increasing the prime minister’s authority during an emergency (including natural disasters, pandemics, and so on) to control people’s movements and otherwise impact individuals’ rights. The opposition parties strongly oppose this idea.
A number of the opposition parties have proposed that the prime minister’s ability to call a snap election should be permitted only after a successful no-confidence motion has passed the Diet. The LDP has not shown much enthusiasm for this proposal.
Is this an area for compromise where neither or both amendments are proposed?
Government Structural Changes
Legal scholars and several opposition parties have proposed creating a new Constitutional Court, separate from the existing Supreme Court. Cases that raise questions about the Constitution would then become the new court’s exclusive purview.
France, Germany, and over 80 other countries have established a constitutional court. First implemented in Austria’s Constitution of 1920, Germany founded its court in its Basic Law of 1949. Most of Europe and countries like South Korea that implemented a European model have followed.
These countries saw a perceived weakness in that the supreme courts tend to avoid many issues that are “political” in nature, such as laws or executive actions that involve elections, or relationships between governing bodies such as between a member country and the European Union. But each country with such a court has defined its scope differently.
While Ishin and the Constitutional Democratic Party have proposed this new court, it is not clear what they have in mind. People outside the legal community are unlikely to see this as one of the top priorities.
The LDP and other parties have proposed changes in the relationship between the national government and the regional and local governments. These proposals, however, do not coalesce around one or a series of recommendations. And some of them are entirely contradictory.
Ishin and other regional groups are interested in shifting more authority from the national government to themselves as regional authorities. The power to directly issue debt and the power to tax are at the center of this proposal.
Other proposals focus on improving the efficiency of government, given continuing population shifts, by consolidating the complex web of government layers. For example, by reducing 47 prefectures, each with their own elected assemblies, into 7 to 10 regional blocks. It is theorized that cost savings from this delayering would be available to enhance community services.
Another idea is to directly address the perceived low added value and overlapping function of the Upper House by merging it with the Lower House. Lower House representatives might then increase from 465 to 550-600. The new seats would be allocated to end the perennial voting disparities between rural and urban constituencies.
The irony of this last proposal is it would return the Diet to what had been in the original “MacArthur’s draft” — a unicameral (one-house) parliament.
Before a national referendum, you need two-thirds approval of the Diet. That is 310 of 465 votes in the Lower House and 162 of the 245 votes in the Upper House.
After the recent Lower House election, the four parties supporting the amendment (LDP, Ishin, Komeito, and Democratic Party for the People or DPP) hold 352 or over 75% of the votes. Until the next Upper House election set for July 2022, the same four parties control 170 or 69%. Theoretically they could achieve the required support and move to the next step of a national referendum.
But the issue is that not all of the parties agree on all of the major proposals. For example, Komeito remains cautious in supporting either the proposed increase of the prime minister’s power during an emergency or the proposed change to Article 9 to end the legal debate over the Self-Defense Forces.
Excluding Komeito, LDP, Ishin, and DPP hold 320 seats or more than the needed two-thirds in the Lower House, but only 142 in the Upper House or 58%. Depending upon the specific amendment, independents and members of other parties could join.
While the media necessarily simplifies the discussion for their readers, the reality is that any amendment approved for a national referendum will have different margins and the support of different combinations of groups in the Diet. Compromises will need to be struck between the four parties supporting a constitutional amendment and the opposition, and even among the pro-amendment parties.
After 75 years, Japan should be mature enough as a democracy to have citizens sit down and discuss what we Japanese want our future to look like and what the supreme law of our land should say.
No further progress in Japan’s democracy can be expected unless and until that discussion can be held — openly, peacefully, unemotionally, and based on facts, not on the specters of the 1930s.
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Author: Edo Naito