The Constitution of Japan (
Shinjitai
are the simplified forms of kanji used in Japan since the promulgation of the Tōyō Kanji List in 1946. Some of the new forms found in ''shinjitai'' are also found in Simplified Chinese characters, but ''shinjitai'' is generally not as extensiv ...
: ,
Kyūjitai
''Kyūjitai'' ( ja, 舊字體 / 旧字体, lit=old character forms) are the traditional forms of kanji, Chinese written characters used in Japanese. Their simplified counterparts are ''shinjitai'' ( ja, 新字体, lit=new character forms, lab ...
: ,
Hepburn: ) is the
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
of
Japan and the supreme law in the state. Written primarily by American civilian officials working under the
Allied occupation of Japan
Japan was occupied and administered by the victorious Allies of World War II from the 1945 surrender of the Empire of Japan at the end of the war until the
Treaty of San Francisco took effect in 1952. The occupation, led by the United States w ...
, the constitution replaced the
Meiji Constitution
The Constitution of the Empire of Japan (Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in for ...
of 1890 when it came into effect on 3 May 1947.
The constitution provides for a
parliamentary system
A parliamentary system, or parliamentarian democracy, is a system of democratic governance of a state (or subordinate entity) where the executive derives its democratic legitimacy from its ability to command the support ("confidence") of th ...
of government and guarantees certain
fundamental rights
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Susta ...
. In contrast to the Meiji Constitution, which invested the
Emperor of Japan
The Emperor of Japan is the monarch and the head of the Imperial Family of Japan. Under the Constitution of Japan, he is defined as the symbol of the Japanese state and the unity of the Japanese people, and his position is derived from "the ...
with supreme political power, under the new charter the Emperor was reduced to "the symbol of the State and of the unity of the people" and exercises only a ceremonial role acting under the
sovereignty
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
of the people.
The constitution, also known as the MacArthur Constitution, , or the , was drafted under the supervision of
Douglas MacArthur, the
Supreme Commander for the Allied Powers, during the
Allied occupation of Japan
Japan was occupied and administered by the victorious Allies of World War II from the 1945 surrender of the Empire of Japan at the end of the war until the
Treaty of San Francisco took effect in 1952. The occupation, led by the United States w ...
after
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposing ...
.
Japanese scholars reviewed and modified it before adoption.
It changed Japan's previous system of semi-
constitutional monarchy
A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in decision making. Constitutional monarchies dif ...
and
stratocracy
A stratocracy (from στρατός, ''stratos'', "army" and κράτος, ''kratos'', "dominion", "power", also ''stratiocracy'') is a form of government headed by military chiefs. The branches of government are administered by military forces, ...
with a
parliamentary monarchy
A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in decision making. Constitutional monarchies dif ...
. The Constitution is best known for
Article 9, by which Japan renounces its right to wage war and maintain military forces.
The Japanese constitution is the oldest unamended constitution in the world. It has not had any amendments to its text in more than 70 years. It is a short constitution with only 5,000 words, compared to the average constitution with 21,000 words.
Historical origins
Meiji Constitution
The
Meiji Constitution
The Constitution of the Empire of Japan (Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in for ...
was the fundamental law of the
Empire of Japan
The also known as the Japanese Empire or Imperial Japan, was a historical nation-state and great power that existed from the Meiji Restoration in 1868 until the enactment of the post-World War II Constitution of Japan, 1947 constitu ...
, propagated during the reign of
Emperor Meiji ().
It provided for a form of mixed
constitutional
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these prin ...
and
absolute monarchy
Absolute monarchy (or Absolutism (European history), Absolutism as a doctrine) is a form of monarchy in which the monarch rules in their own right or power. In an absolute monarchy, the king or queen is by no means limited and has absolute pow ...
, based on the
Prussia
Prussia, , Old Prussian: ''Prūsa'' or ''Prūsija'' was a German state on the southeast coast of the Baltic Sea. It formed the German Empire under Prussian rule when it united the German states in 1871. It was ''de facto'' dissolved by an ...
n and British models. In theory, the
Emperor of Japan
The Emperor of Japan is the monarch and the head of the Imperial Family of Japan. Under the Constitution of Japan, he is defined as the symbol of the Japanese state and the unity of the Japanese people, and his position is derived from "the ...
was the
supreme leader, and the cabinet, whose prime minister was elected by a
privy council, were his followers; in practice, the Emperor was
head of state
A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and l ...
but the Prime Minister was the actual head of government. Under the Meiji Constitution, the prime minister and his cabinet were not accountable to the elected members of the
Diet
Diet may refer to:
Food
* Diet (nutrition), the sum of the food consumed by an organism or group
* Dieting, the deliberate selection of food to control body weight or nutrient intake
** Diet food, foods that aid in creating a diet for weight loss ...
, and increasingly deferred to the
Imperial Japanese Army
The was the official ground-based armed force of the Empire of Japan from 1868 to 1945. It was controlled by the Imperial Japanese Army General Staff Office and the Ministry of the Army, both of which were nominally subordinate to the Emperor o ...
in the lead-up to the
Second Sino-Japanese War
The Second Sino-Japanese War (1937–1945) or War of Resistance (Chinese term) was a military conflict that was primarily waged between the Republic of China and the Empire of Japan. The war made up the Chinese theater of the wider Pacific Th ...
.
The Potsdam Declaration
On 26 July 1945, shortly before the end of the
Second World War
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposi ...
,
Allied leaders of the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
, the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
, and the
Republic of China issued the
Potsdam Declaration
The Potsdam Declaration, or the Proclamation Defining Terms for Japanese Surrender, was a statement that called for the surrender of all Japanese armed forces during World War II. On July 26, 1945, United States President Harry S. Truman, Uni ...
. The Declaration demanded Japan's unconditional surrender, demilitarisation and democratisation.
The declaration defined the major goals of the post-surrender
Allied occupation: "The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people.
Freedom of speech, of
religion
Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, ...
, and of thought, as well as respect for the fundamental human rights shall be established" (Section 10). In addition, "The occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives have been accomplished and there has been established in accordance with the freely expressed will of the Japanese people a peacefully inclined and responsible government" (Section 12). The Allies sought not merely punishment or reparations from a militaristic foe, but fundamental changes in the nature of its political system. In the words of a political scientist
Robert E. Ward: "The occupation was perhaps the single most exhaustively planned operation of massive and externally directed political change in world history."
The Japanese government accepted the conditions of the Potsdam Declaration, which necessitates amendments to its Constitution after the surrender.
Drafting process
![Rowell memo 1946](https://upload.wikimedia.org/wikipedia/commons/7/74/Rowell_memo_1946.jpg)
The wording of the Potsdam Declaration—"The Japanese Government shall remove all obstacles ..."—and the initial post-surrender measures taken by
MacArthur, suggest that neither he nor his superiors in Washington intended to impose a new political system on Japan unilaterally. Instead, they wished to encourage Japan's new leaders to initiate democratic reforms on their own. But by early 1946, MacArthur's staff and Japanese officials were at odds over the most fundamental issue, the writing of a new Constitution.
Emperor Hirohito
Emperor , commonly known in English-speaking countries by his personal name , was the 124th emperor of Japan, ruling from 25 December 1926 until his death in 1989. Hirohito and his wife, Empress Kōjun, had two sons and five daughters; he was ...
, Prime Minister
Kijūrō Shidehara
Baron was a pre–World War II Japanese diplomat and politician. He was Prime Minister of Japan from 1945 to 1946 and a leading proponent of pacifism in Japan before and after World War II. He was the last Japanese Prime Minister who was a mem ...
, 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.
Konoe Fumimaro, Shidehara Cabinet and the civil constitutional study groups formed original constitutions. The formal draft constitution which was created by the Shidehara Cabinet was rejected by GHQ and the government reviewed the revised drafts by various political parties and accepted liberal ways of thinking especially toward the emperor as the symbol of nationals and dispossession of a military power.
After World War II, the Allied Powers concluded an "Instrument of Surrender" with Japan, which stated that "the Emperor and the Government of Japan shall come under the subordination of the Supreme Commander of the Allied Powers”. Koseki
interprets this statement as the GHQ's indirect rule through the Emperor and the Japanese government, rather than direct rule over the Japanese people. In other words, GHQ regarded the Emperor Hirohito not as a war criminal parallel to Hitler and Mussolini but as one governance mechanism.
The Japanese government at the end of World War II was organized by the cabinet of Prince Higashikuninomiya, with Fumimaro Konoe, who had served as the prime minister during the Manchurian Incident in 1931, as a minister without portfolio. The trigger of constitutional amendment was from GHQ General MacArthur's word to Fumimaro Konoe. After an unsuccessful first visit on September 13, 1945, Fumimaro Konoe paid another visit to MacArthur at the GHQ headquarters on October 4, 1945. Although the GHQ later denied this fact, citing a mistake by the Japanese interpreter, diplomatic documents between Japan and the U.S. state that "the Constitution must be amended to fully incorporate liberal elements".
"At the meeting, the General told Konoe that the Constitution must be amended".
In this regard, it can be said that the GHQ granted Konoe the authority to amend the Constitution. However, at this point, the Higashikuninomiya Cabinet was succeeded by the Shidehara Cabinet, and Joji Matsumoto, the then Minister of State, stated that the Cabinet should be the only one to amend the Constitution, and the Constitutional Problems Investigation Committee was established. In other words, there was a conflict between the Konoe and Shidehara cabinets as to who should take the initiative in constitutional amendment.
However, this conflict ended with Konoe being nominated as a candidate for Class A war criminal due to domestic and international criticism. To begin with, Konoe was able to have the initiative to amend the Constitution because he had been assigned full-time by the GHQ to amend the constitution, although he was not an unappointed minister when the cabinet was changed. However, due to domestic and foreign criticism of Konoe, the GHQ announced on November 1 that Konoe had not been appointed to amend the Constitution and that he had no authority to lead the amendment of the constitution since the cabinet had changed. At that time, Konoe belonged to the Office of the Minister of the Interior, which was in charge of politics related to the Imperial Household, but since the Office of the Minister of the Interior was about to be abolished, he decided to submit a proposal for amendment before then. Konoe's proposal reflected the wishes of the GHQ and was very liberal in content, including "limitation of the royal prerogative," "independent dissolution of the Diet," and "freedom of speech," but it was never finally approved as a draft, and Konoe committed suicide by poisoning himself. After this, the authority to amend the Constitution was completely transferred to Shidehara's cabinet.
In late 1945, Shidehara appointed
Jōji Matsumoto
was a legal scholar, politician and cabinet minister in the pre-war Empire of Japan. He is also the author of the “Matsumoto Draft”, a proposal for revision of the Constitution of the Empire of Japan in the immediate post-war period.
Matsu ...
, state minister without portfolio, head of a blue-ribbon committee of Constitutional scholars to suggest revisions. The Matsumoto Committee was composed of the authorities of the Japanese law academia, including Tatsuki Minobe (美濃部達吉), and the first general meeting was held on October 27, 1945. Joji Matsumoto presented the following four principles of constitutional amendment to the Budget Committee of the House of Representatives in 1945.
Four principles of constitutional amendment
1. Do not change the basic principle of the Constitution of the Empire of Japan that the Emperor has total control.
2. To expand the power of the parliament and, as a reflection, limit the matters related to the Emperor's power to some extent.
3. Put the responsibility of the Minister of State on all national affairs, and the Minister of State shall be responsible to the Parliament.
4. Expand the protection of people's freedoms and rights and take adequate relief measures.
The Matsumoto Committee has prepared a constitutional amendment outline based on these principles.
The
Matsumoto Commission's recommendations (
:ja:松本試案), made public in February 1946, were quite conservative as "no more than a touching-up of the Meiji Constitution". MacArthur rejected them outright and ordered his staff to draft a completely new document. An additional reason for this was that on 24 January 1946, Prime Minister Shidehara had suggested to MacArthur that the new Constitution should contain an article renouncing war.
As the momentum for constitutional amendment increased, interest in the constitution increased among the people. In fact, not only political parties but also private organizations have announced draft constitutional amendments.
The most famous of these is the outline of the draft constitution by the Constitution Study Group. The Constitutional Study Group was established on October 29, 1945 to study and prepare for the establishment of the Constitution from a leftist approach. While many political party drafts only added to the Meiji Constitution, their drafts included the principle of popular sovereignty, which grants sovereignty to the people and regards the Emperor as a symbol of the people. The Constitutional Study Group submitted a draft to the Prime Minister's Office on December 26, 1945. On January 2, 1946, GHQ issued a statement that it would focus on the content. Toyoharu Konishi states that the GHQ may have included the opinion of the Constitutional Study Group in the draft, reflecting the situation in the United States, where people disregarded popular sovereignty at that time. Also, regarding the symbolic emperor system, since the members of the Constitutional Study Group came into contact with the GHQ dignitaries earlier than the drafting of the guidelines, the Constitutional Study Group proposed the symbolic emperor system through the GHQ dignitaries. It is analyzed that it was reflected in the GHQ proposal.
The Constitution was mostly drafted by American authors.
A few Japanese scholars reviewed and modified it.
Much of the drafting was done by two senior army officers with law degrees:
Milo Rowell and
Courtney Whitney
Major General Courtney Whitney (May 20, 1897 – March 21, 1969) was a lawyer and United States Army commander during World War II who later served as a senior official during the American occupation of Japan (1945–1951). He played a major r ...
, although others chosen by MacArthur had a large say in the document. The articles about equality between men and women were written by
Beate Sirota
Beate Sirota Gordon (; October 25, 1923 – December 30, 2012) was an Austrian-born American performing arts presenter and women's rights advocate. She was the former Performing Arts Director of the Japan Society and the Asia Society and w ...
.
MacArthur gave the authors less than a week to complete the draft, which was presented to surprised Japanese officials on 13 February 1946. MacArthur initially had a policy of not interfering with the revision of the Constitution, but from around January 1946, he made a statement to the Constitutional Draft Outline of the Constitutional Study Group and activated movements related to the Constitution. There are various theories as to the reason. Kenzo Yanagi mentioned the memorandum of Courtney Whitney, who was the director of the Civil Affairs Bureau of the General Headquarters, on February 1, 1946 as a reason for the attitude change. In the memorandum, it is mentioned that the
Far Eastern Commission
The Far Eastern Commission (FEC) was an Allied commission which succeeded the Far Eastern Advisory Commission (FEAC), and oversaw the Allied Council for Japan following the end of World War II. Based in Washington, D.C., it was first agreed on at ...
was about to be established. The Far Eastern Commission is the supreme policy-making body established by the United States, Great Britain, the Soviet Union, China, Australia and other allies to occupy and control Japan, and its authority was higher than that of GHQ. MacArthur learned that the Far Eastern Commission was interested in constitutional amendment, and thought that constitutional authority could be transferred to the Far Eastern Commission after the commission was established. Therefore, he might be eager to end the constitutional issue with unlimited authority before it was founded.
On February 18, the Japanese government called on the GHQ to reconsider the MacArthur Draft, which is significantly different from the Matsumoto Draft, but Whitney rejected the proposal on February 20. On the contrary, he asked the Japanese government for a reply within 48 hours. Then, Prime Minister Shidehara met with MacArthur on February 21 and decided to accept the MacArthur draft by a cabinet meeting on the following day.
After the Cabinet decision, Joji Matsumoto aimed to draft a Japanese government bill based on the MacArthur Draft, and the draft was completed on March 2 of the same year.
On March 4 Joji Matsumoto presented the draft to Whitney, but GHQ noticed that there were differences between the MacArthur Draft and the March 2 Draft. In particular, the March 2 Draft did not include a preamble, and a heated argument ensued. Finally, adjustments were made by the Japanese government and GHQ, and the draft was completed on March 6.
On 6 March 1946, the government publicly disclosed an outline of the pending Constitution. On 10 April, elections were held for 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.
In the process of passing through the House of Representatives in August 1946, the draft of the Constitutional Amendment was modified. This is called the Ashida Amendment, since the chairman of the committee at the time was Hitoshi Ashida. In particular, Article 9, which refers to the renunciation of armed forces, was controversial.
The phrase "In order to accomplish the aim of the preceding paragraph," was added to paragraph 2 by Hitoshi Ashida without the diet deliberations. Although the reason is not clear, this addition has led to the interpretation of the Constitution as allowing the retention of force when factors other than the purpose of the preceding paragraph arise. Even now there is a great debate over whether force for self-defense, such as the Self Defense Forces, is a violation of the Constitution.
Article 9.
1) Aspiring sincerely to 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.
2) 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 recognized.
Unlike most previous Japanese legal documents, the constitution is written in modern colloquial Japanese instead of
Classical Japanese. The Japanese version includes some awkward phrasing and scholars sometimes consult the English drafts to resolve ambiguities.
The MacArthur draft, which proposed a
unicameral
Unicameralism (from ''uni''- "one" + Latin ''camera'' "chamber") is a type of legislature, which consists of one house or assembly, that legislates and votes as one.
Unicameral legislatures exist when there is no widely perceived need for multi ...
legislature, was changed at the insistence of the Japanese to allow a
bicameral one, with both houses being elected. In most other important respects, the government adopted the ideas embodied in the 13 February document 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
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
and human rights, and the renunciation of war. The constitution followed closely a 'model copy' prepared by MacArthur's command.
In 1946, criticism of or reference to MacArthur's role in drafting the constitution could be made subject to
Civil Censorship Detachment (CCD) censorship (as was any reference to censorship itself). Until late 1947, CCD exerted pre-publication censorship over about 70 daily newspapers, all books, and magazines, and many other publications.
Adoption
![Nihon Kenpo02](https://upload.wikimedia.org/wikipedia/commons/c/c1/Nihon_Kenpo02.jpg)
It was decided that in adopting the new document the Meiji Constitution would not be violated. Rather, to maintain legal continuity, the new 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, which was elected by
universal suffrage
Universal suffrage (also called universal franchise, general suffrage, and common suffrage of the common man) gives the right to vote to all adult citizens, regardless of wealth, income, gender, social status, race, ethnicity, or political stan ...
, which
was granted also women, in 1946, by the Emperor through an imperial
rescript
In legal terminology, a rescript is a document that is issued not on the initiative of the author, but in response (it literally means 'written back') to a specific demand made by its addressee. It does not apply to more general legislation.
Over ...
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 to become law. Both chambers had made amendments. Without interference by MacArthur,
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
added Article 17, which guarantees the right to sue the State for the tort of officials, Article 40, which guarantees the right to sue the State for wrongful
detention, and Article 25, which guarantees the
right to life. The house also amended
Article 9. And the
House of Peers approved the document on 6 October; the
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
adopted it in the same form the following day, with only five members voting against. It became law when it received the Emperor's
assent on 3 November 1946.
Under its own terms, the constitution came into effect on 3 May 1947.
A government organisation, the ''
Kenpō Fukyū Kai
The was a Japanese group founded in 1946 to promote the reformed Constitution of Japan.
After World War II, the Allied occupation required that the existing Meiji Constitution of Japan be amended to replace the absolute rule of the Emperor with ...
'' ("Constitution Popularisation Society"), was established to promote the acceptance of the new constitution among the populace.
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
Nationalism is an idea and movement that holds that the nation should be congruent with the state. As a movement, nationalism tends to promote the interests of a particular nation (as in a group of people), Smith, Anthony. ''Nationalism: The ...
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
was a Japanese politician who served as Prime Minister of Japan and President of the Liberal Democratic Party from 1982 to 1987. He was a member of the House of Representatives for more than 50 years. He was best known for pushing through the ...
, 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.
Provisions
The constitution has a length of approximately 5,000 words and consists of a preamble and 103 articles grouped into 11 chapters. These are:
* I. The Emperor (Articles 1–8)
* II. Renunciation of War (Article 9)
* III. Rights and Duties of the People (Articles 10–40)
* IV. The Diet (Articles 41–64)
* V. The Cabinet (Articles 65–75)
* VI. Judiciary (Articles 76–82)
* VII. Finance (Articles 83–91)
* VIII. Local Self–Government (Articles 92–95)
* IX. Amendments (Article 96)
* X. Supreme Law (Articles 97–99)
* XI. Supplementary Provisions (Articles 100–103)
Edict
![Constitution of Japan origin signatures 20140506](https://upload.wikimedia.org/wikipedia/commons/1/1e/Constitution_of_Japan_origin_signatures_20140506.jpg)
The constitution starts with an imperial edict made by the
Emperor
An emperor (from la, imperator, via fro, empereor) is a monarch, and usually the sovereignty, sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife (empress consort), ...
. It contains the Emperor's
Privy Seal and signature, and is countersigned by the
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
and other
Ministers of State
Minister of State is a title borne by politicians in certain countries governed under a parliamentary system. In some countries a Minister of State is a Junior Minister of government, who is assigned to assist a specific Cabinet Minister. In o ...
as required by the previous
constitution of the Empire of Japan
The Constitution of the Empire of Japan ( Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in ...
. The edict states:
I rejoice that the foundation for the construction of a new Japan has been laid according to the will of the Japanese people, and hereby sanction and promulgate the amendments of the Imperial Japanese Constitution effected following the consultation with the Privy Council and the decision of the Imperial Diet made in accordance with Article 73 of the said Constitution.
Preamble
The constitution contains a firm declaration of the principle of
popular sovereignty
Popular sovereignty is the principle that the authority of a state and its government are created and sustained by the consent of its people, who are the source of all political power. Popular sovereignty, being a principle, does not imply any ...
in the preamble. This is proclaimed in the name of the "
Japanese people
The are an East Asian ethnic group native to the Japanese archipelago."人類学上は,旧石器時代あるいは縄文時代以来,現在の北海道〜沖縄諸島(南西諸島)に住んだ集団を祖先にもつ人々。" () Jap ...
" and declares that "sovereign power resides with the people" and that:
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
Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism, philosophy of law and democratic theory. It is not limited by country or juri ...
that sovereignty resided in the Emperor. The constitution asserts that the Emperor is merely a symbol of the
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
, 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
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hum ...
. 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.
The Emperor (Articles 1–8)
Under the constitution, the Emperor is "the symbol of the State and of the unity of the people". Sovereignty rests with the people, not the Emperor as it did under the
Meiji Constitution
The Constitution of the Empire of Japan (Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in for ...
.
The Emperor carries out most functions of a
head of state
A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and l ...
, formally
appointing the
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
and
Chief Justice of the
Supreme Court, convoking the
National Diet and dissolving the
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
, and also promulgating statutes and treaties and exercising other enumerated functions. However, he acts under the
advice
Advice (noun) or advise (verb) may refer to:
* Advice (opinion), an opinion or recommendation offered as a guide to action, conduct
* Advice (constitutional law) a frequently binding instruction issued to a constitutional office-holder
* Advice (p ...
and approval of the
Cabinet or the Diet.
In contrast with the
Meiji Constitution
The Constitution of the Empire of Japan (Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in for ...
, the Emperor's role is entirely ceremonial, as he does not have powers related to government. Unlike other
constitutional monarchies
A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in decision making. Constitutional monarchies dif ...
, he is not even the ''nominal'' chief executive or even the nominal commander-in-chief of the
Japan Self-Defense Forces (JSDF). The constitution explicitly limits the Emperor's role to matters of state delineated in the constitution. The constitution also states that these duties can be delegated by the Emperor as provided for by law.
Succession to the
Chrysanthemum Throne
The is the throne of the Emperor of Japan. The term also can refer to very specific seating, such as the throne in the Shishin-den at Kyoto Imperial Palace.
Various other thrones or seats that are used by the Emperor during official functions ...
is regulated by the
Imperial Household Law
is a statute in Japanese law that governs the line of imperial succession, the membership of the imperial family, and several other matters pertaining to the administration of the Imperial Household.
In 2017, the National Diet changed the law ...
and is managed by a ten-member body called the
Imperial Household Council
The is a ten-member body to approve the statutory matters on the Imperial House of Japan. The Council was established in 1947, when the current Imperial Household Law took effect.
Functions
The Imperial Household Law provides that the Counci ...
. The budget for the maintenance of the
Imperial House
A dynasty is a sequence of rulers from the same family,''Oxford English Dictionary'', "dynasty, ''n''." Oxford University Press (Oxford), 1897. usually in the context of a monarchical system, but sometimes also appearing in republics. A d ...
is managed by resolutions of the
Diet
Diet may refer to:
Food
* Diet (nutrition), the sum of the food consumed by an organism or group
* Dieting, the deliberate selection of food to control body weight or nutrient intake
** Diet food, foods that aid in creating a diet for weight loss ...
.
Renunciation of war (Article 9)
Under Article 9, 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 another war potential, will never be maintained". The necessity and practical extent of Article 9 have been debated in Japan since its enactment, particularly following the establishment of the
Japan Self-Defence Forces (JSDF), a ''de facto'' post-war Japanese military force that substitutes for the
pre-war Armed Forces, since 1 July 1954. Some lower courts have found the JSDF unconstitutional, but the
Supreme Court never ruled on this issue.
Individuals have also challenged the presence of U.S. forces in Japan as well as the
U.S.-Japan Security Treaty under Article 9 of the Constitution.
[Chen, Po Liang; Wada, Jordan T. (2017). "Can the Japanese Supreme Court Overcome the Political Question Hurdle?". ''Washington International Law Journal''. 26: 349–79.] The
Supreme Court of Japan
The , located in Hayabusachō, Chiyoda, Tokyo, is the highest court in Japan. It has ultimate judicial authority to interpret the Japanese constitution and decide questions of national law. It has the power of judicial review, which allows it t ...
has found that the stationing of U.S. forces did not violate Article 9, because it did not involve forces under Japanese command.
The Court ruled the U.S.-Japan Security Treaty to be a highly sensitive political question, and declined to rule on its legality under the
political question doctrine
In United States constitutional law, the political question doctrine holds that a constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution ...
.
Various political groups have called for either revising or abolishing the restrictions of Article 9 to permit collective defense efforts and strengthen Japan's military capabilities.
The United States has pressured Japan to amend Article 9 and to rearm
as early as 1948
with Japan gradually expanding its military capabilities, "sidestepping constitutional constraints".
Individual rights (Articles 10–40)
"The rights and duties of the people" are featured prominently in the post-war constitution. Thirty-one of its 103 articles are devoted to describing them in detail, reflecting the commitment to "respect for the fundamental human rights" of the
Potsdam Declaration
The Potsdam Declaration, or the Proclamation Defining Terms for Japanese Surrender, was a statement that called for the surrender of all Japanese armed forces during World War II. On July 26, 1945, United States President Harry S. Truman, Uni ...
. 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" and could be limited by legislation.
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
Lèse-majesté () or lese-majesty () is an offence against the dignity of a ruling head of state (traditionally a monarch but now more often a president) or the state itself. The English name for this crime is a borrowing from the French, w ...
). Such freedoms are delineated in the post-war constitution without qualification.
Individual rights under the Japanese constitution are rooted in Article 13 where 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". This article's core notion is ''jinkaku'', which represents "the elements of character and personality that come together to define each person as an individual", and which represents the aspects of each individual's life that the government is obligated to respect in the exercise of its power. Article 13 has been used as the basis to establish constitutional
rights to privacy, self-determination and the control of an individual's own image, rights which are not explicitly stated in the constitution.
Subsequent provisions provide for:
*
Equality before the law: The constitution guarantees equality before the law and outlaws discrimination against Japanese citizens 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. Honors 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
Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
: Guaranteed by Article 18. Involuntary servitude is permitted only as punishment for a crime.
*
Separation of Religion and State: The state is prohibited from granting privileges or political authority to a religion, or conducting religious education (Article 20).
*
Freedom of assembly
Freedom of peaceful assembly, sometimes used interchangeably with the freedom of association, is the individual right or ability of people to come together and collectively express, promote, pursue, and defend their collective or shared ide ...
,
association
Association may refer to:
*Club (organization), an association of two or more people united by a common interest or goal
*Trade association, an organization founded and funded by businesses that operate in a specific industry
*Voluntary associatio ...
,
speech, and secrecy of communications: All guaranteed without qualification by Article 21, which forbids
censorship
Censorship is the suppression of speech, public communication, or other information. This may be done on the basis that such material is considered objectionable, harmful, sensitive, or "inconvenient". Censorship can be conducted by governments ...
.
*
Workers' rights
Labor rights or workers' rights are both legal rights and human rights relating to labor relations between workers and employers. These rights are codified in national and international labor and employment law. In general, these rights influen ...
: Work is declared both a right and obligation 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
Welfare, or commonly social welfare, is a type of government support intended to ensure that members of a society can meet basic human needs such as food and shelter. Social security may either be synonymous with welfare, or refer specifical ...
". 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". Article 32, which provides that "No person shall be denied the right of access to the courts", originally drafted to recognize criminal due process rights, is now also understood as the source of due process rights for civil and administrative law cases.
* 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
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'', 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
A fair (archaic: faire or fayre) is a gathering of people for a variety of entertainment or commercial activities. Fairs are typically temporary with scheduled times lasting from an afternoon to several weeks.
Types
Variations of fairs incl ...
: Article 37 guarantees the right to a
public trial
Public trial or open trial is a trial that is open to the public, as opposed to a secret trial. It should not be confused with a show trial.
United States
The Sixth Amendment to the United States Constitution establishes the right of the accus ...
before an impartial tribunal with counsel for one's defence and compulsory access to witnesses.
* Protection against
self-incrimination
In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (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
The right to petition government for redress of grievances is the right to make a complaint to, or seek the assistance of, one's government, without fear of punishment or reprisals.
In Europe, Article 44 of the Charter of Fundamental Rights of ...
government (Article 16)
** Right to
sue the state (Article 17)
**
Freedom of thought
Freedom of thought (also called freedom of conscience) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints.
Overview
Every person attempts to have a cognitive proficiency ...
and conscience (Article 19)
**
Freedom of expression
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
(Article 19)
**
Freedom of religion
Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freed ...
(Article 20)
** Rights to change residence, choose employment, move abroad and relinquish nationality (Article 22)
**
Academic freedom
Academic freedom is a moral and legal concept expressing the conviction that the freedom of inquiry by faculty members is essential to the mission of the academy as well as the principles of academia, and that scholars should have freedom to teac ...
(Article 23)
** Prohibition of
forced marriage
Forced marriage is a marriage in which one or more of the parties is married without their consent or against their will. A marriage can also become a forced marriage even if both parties enter with full consent if one or both are later force ...
(Article 24)
**
Compulsory education (Article 26)
** Protection against entries,
search and seizure
Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confisca ...
s (Article 35)
** Prohibition of
torture
Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogational torture, interrogation for information, or intimidating third parties. definitions of tortur ...
and cruel punishments (Article 36)
** Prohibition of ''
ex post facto'' laws (Article 39)
** Prohibition of
double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
(Article 39)
Under Japanese case law, constitutional human rights apply to corporations to the extent possible given their corporate nature. Constitutional human rights also apply to foreign nationals to the extent that such rights are not by their nature only applicable to citizens (for example, foreigners have no right to enter Japan under Article 22 and no right to vote under Article 15, and their other political rights may be restricted to the extent that they interfere with the state's decision making).
Organs of government (Articles 41–95)
![Politics Under Constitution of Japan 04](https://upload.wikimedia.org/wikipedia/commons/5/5e/Politics_Under_Constitution_of_Japan_04.svg)
The constitution establishes a parliamentary system of government in which legislative authority is vested in a bicameral
National Diet. Although a bicameral Diet existed under the existing constitution, the new constitution abolished the upper
House of Peers, which consisted of members of the
nobility
Nobility is a social class found in many societies that have an aristocracy. It is normally ranked immediately below royalty. Nobility has often been an estate of the realm with many exclusive functions and characteristics. The character ...
(similar to the British
House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
). The new constitution provides that both chambers be directly elected, with a lower
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
and an upper
House of Councillors
The is the upper house of the National Diet of Japan. The House of Representatives is the lower house. The House of Councillors is the successor to the pre-war House of Peers. If the two houses disagree on matters of the budget, treaties, or ...
.
The Diet nominates the Prime Minister from among its members, although the Lower House has the final authority if the two Houses disagree.
Thus, in practice, the Prime Minister is the leader of the majority party of the Lower House.
The House of Representatives has the sole ability to pass a
vote of no confidence
A motion of no confidence, also variously called a vote of no confidence, no-confidence motion, motion of confidence, or vote of confidence, is a statement or vote about whether a person in a position of responsibility like in government or mana ...
in the Cabinet, can override the House of Councillors' veto on any bill, and has priority in determining the national budget, and approving treaties.
Executive authority is vested in a
cabinet, jointly responsible to the Diet, and headed by a
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
.
The prime minister and a majority of the cabinet members must be members of the Diet, and have the right and obligation to attend sessions of the Diet. The Cabinet may also advise the Emperor to dissolve the House of Representatives and call for a general election to be held.
The judiciary consists of several lower courts headed by a
Supreme Court. The
Chief Justice of the Supreme Court is nominated by the Cabinet and
appointed by the Emperor, while other justices are nominated and appointed by the Cabinet and attested by the Emperor. Lower court judges are nominated by the Supreme Court, appointed by the Cabinet and attested by the Emperor. All courts have the power of
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
and may interpret the constitution to overrule statutes and other government acts, but only in the event that such interpretation is relevant to an actual dispute.
The constitution also provides a framework for
local government
Local government is a generic term for the lowest tiers of public administration within a particular sovereign state. This particular usage of the word government refers specifically to a level of administration that is both geographically-l ...
, requiring that local entities have elected heads and assemblies, and providing that government acts applicable to particular local areas must be approved by the residents of those areas. These provisions formed the framework of the
Local Autonomy Law
The , passed by the House of Representatives and the House of Peers on March 28, 1947 and promulgated as Law No. 67 of 1947 on April 17,Ministry of Justice, Japanese Law Translation Database SystemLocal Autonomy Act/ref> is an Act of devolution t ...
of 1947, which established the modern system of
prefectures
A prefecture (from the Latin ''Praefectura'') is an administrative jurisdiction traditionally governed by an appointed prefect. This can be a regional or local government subdivision in various countries, or a subdivision in certain international ...
,
municipalities
A municipality is usually a single administrative division having corporate status and powers of self-government or jurisdiction as granted by national and regional laws to which it is subordinate.
The term ''municipality'' may also mean the go ...
and other local government entities.
Amendments (Article 96)
Under Article 96, amendments to the constitution "shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify". The constitution has not been amended since its implementation in 1947, although there have been movements led by the
Liberal Democratic Party to make various amendments to it.
Other provisions (Articles 97–103)
Article 97 provides for the inviolability of fundamental human rights. Article 98 provides that the constitution takes precedence over any "law, ordinance, imperial rescript or other act of government" that offends against its provisions, and 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
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
concluded by the state will be reflected in its domestic law; under Article 98, however,
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
and the treaties Japan has ratified automatically form a part of domestic law. Article 99 binds the Emperor and public officials to observe the constitution.
The final four articles set forth a six-month transitional period between adoption and implementation of the Constitution. This transitional period took place from 3 November 1946, to 3 May 1947. Pursuant to Article 100, the
first House of Councillors election was held during this period in April 1947, and pursuant to Article 102, half of the elected Councillors were given three-year terms. A
general election was also held during this period, as a result of which several former House of Peers members moved to the House of Representatives. Article 103 provided that public officials currently in office would not be removed as a direct result of the adoption or implementation of the new Constitution.
Amendments and revisions
Process
Article 96 provides that
amendment An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
s can be made to the Constitution if approved by
super majority of two-thirds of both houses of the Diet, and then by a simple majority in a popular
referendum
A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
. The Emperor promulgates the successful amendment in the name of the people, and cannot veto it. Details of the process is determined by the and the .
Unlike some constitutions (e.g. the German, Italian, and French Constitutions), Japan's Constitution does not have an explicit
entrenchment provision limiting what can be amended.
However, the Preamble of the Constitution declared democracy to be the "universal principle of mankind" and Article 97 proclaims the fundamental rights guaranteed by the Constitution to be "for all time inviolable."
Because of this, scholars generally believe that basic principles such as the sovereignty of the people, pacifism, and respect for human rights are unamendable.
More broadly, fundamental norms written in the Constitution by constituent power cannot be amended. The preamble of the Constitution states: "We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith".
Pacifism
Pacifism is the opposition or resistance to war, militarism (including conscription and mandatory military service) or violence. Pacifists generally reject theories of Just War. The word ''pacifism'' was coined by the French peace campaign ...
,
popular sovereignty
Popular sovereignty is the principle that the authority of a state and its government are created and sustained by the consent of its people, who are the source of all political power. Popular sovereignty, being a principle, does not imply any ...
and respect for basic
human rights
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
are among them according to the Preamble and Article 11.
History
The Constitution has not been amended since its enactment in 1946.
Some commentators have suggested that the Constitution's American authors favoured the difficulty of the amendment process from a desire that the fundamentals of the regime they had imposed would be resistant to change. Among the 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,
although amendment of the Constitution has been one of the party line of the
LDP since it was formed. In the 1990s, right-leaning and conservative voices broke some taboos,
for example, when the newspaper ''
Yomiuri Shimbun
The (lit. ''Reading-selling Newspaper'' or ''Selling by Reading Newspaper'') is a Japanese newspaper published in Tokyo, Osaka, Fukuoka, and other major Japanese cities. It is one of the five major newspapers in Japan; the other four are ...
'' published a suggestion for Constitutional revision in 1994.
This period saw a number of right-leaning groups pushing aggressively for Constitutional revision and a significant number of organizations and individuals speaking out against revision and in support of "the peace Constitution".
The debate has been highly polarised. The most controversial issues are proposed changes to Article 9—the "peace article"—and provisions relating to the role of the Emperor. Progressive, left, centre-left and peace movement-related individuals and organizations, as well as the opposition parties, labor and youth groups advocate keeping or strengthening the existing Constitution in these areas, while right-leaning, nationalist and 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 JSDF by turning it officially into a military. Other areas of the Constitution and connected laws discussed for potential revision related 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.
Numerous grassroots groups, associations, NGOs, think tanks, scholars, and politicians speak out on either side of the issue.
Amendment Drafts by the LDP
The
Liberal Democratic Party (LDP), one of the most influential political parties in Japan that has been in majority in the Diet for most of the time since its 1955 establishment, has adopted several party platforms each of which lists "revision of the current constitution" as a political motive. One of the earliest platforms, "The Duties of the Party" in 1955, points out as follows:
In recent years the LDP has committed itself more to constitutional revision, following its victory in the September 2005 general election of the representatives. Currently, the party has released two versions of amendment drafts, one in 2005 and another in 2012.
2005 Draft
In August 2005, the then Japanese Prime Minister,
Jun'ichirō Koizumi, proposed an amendment to the constitution to increase Japan's Defence Forces' roles in international affairs. A draft of the proposed constitution was released by the 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 another war potential" is replaced by an Article 9-2 which permits a "defense force", under the control of the Prime Minister, to defend the nation and which may participate in international activities. This new section uses the term "軍" (''gun'', "army" or "military"), which has been avoided in the current constitution. It also adds Article 76 about military courts; members of the JSDF 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" for "ethnocultural 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 prompted debate, with strong opposition coming even from non-governmental organizations of other countries, as well as established and newly formed grassroots Japanese organizations, 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
Shinzō Abe
Shinzo Abe ( ; ja, 安倍 晋三, Hepburn: , ; 21 September 1954 – 8 July 2022) was a Japanese politician who served as Prime Minister of Japan and President of the Liberal Democratic Party (LDP) from 2006 to 2007 and again from 2012 to 20 ...
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.
By that time there was little public support for changing the Constitution, with a survey showing 34.5% of Japanese not wanting any changes, 44.5% wanting no changes to Article 9, and 54.6% supporting the current interpretation on self-defense.
On the 60th anniversary of the Constitution, on 3 May 2007, thousands took to the streets in support of Article 9.
The Chief Cabinet secretary and other top government officials interpreted the survey to mean that the public wanted a pacifist Constitution that renounces war, and may need to be better informed about the details of the revision debate. 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.
2012 Draft
On 27 April 2012, the LDP drafted a new version of amendment with an explanatory booklet for general readers. The booklet states that the spirit of the amendment is to "make the Constitution more suitable for Japan" by "drastically revising the translationese wording and the provisions based on the
theory of natural human rights currently adopted in the Constitution". The proposed changes includes:
* Preamble: In the LDP draft, the Preamble declares that Japan is reigned by the Emperor and adopts the
popular sovereignty
Popular sovereignty is the principle that the authority of a state and its government are created and sustained by the consent of its people, who are the source of all political power. Popular sovereignty, being a principle, does not imply any ...
and ''
trias politica'' principles. The current Preamble refers to the government as a trust of the people (implying the "natural rights codified into the constitution by the
social contract" model) and ensures people "the right to live in peace, free from fear and want", but both mentions are deleted in the LDP draft.
* Emperor: Overall, the LDP draft adopts a wording that sounds as though the Emperor has greater power than under the current Constitution. The draft defines him as "
the head of the State" (Article 1). Compared to the current Constitution, he is exempted from "the obligation to respect and uphold this Constitution" (Article 102). The draft defines ''
Nisshōki'' as the national flag and ''
Kimigayo
is the national anthem of Japan. The lyrics are from a ' poem written by an unnamed author in the Heian period (794–1185), and the current melody was chosen in 1880, replacing an unpopular melody composed by John William Fenton eleven years ...
'' the national anthem (Article 3).
* Human rights: The LDP draft, as the accompanying booklet states, revises many of the human rights provisions currently adopted in the Constitution. The booklet describes the reason for these changes as: "Human rights should have ground on the State's history, culture and tradition" and "Several of the current Constitutional provisions are based on the Western-European theory of
natural human rights; such provisions, therefore, require to be changed."
[''Nihon-koku Kenpou Kaisei Souan Q & A'', p. 14.] The draft lists every instance of the basic rights as something that is ''entitled'' by the State as opposed to something that human beings inherently possess as seen in the draft provisions of "new human rights" (see below).
The current Constitution has the phrase "
public welfare
Welfare, or commonly social welfare, is a type of government support intended to ensure that members of a society can meet basic human needs such as food and shelter. Social security may either be synonymous with welfare, or refer specifical ...
" in four articles (Articles 12, 13, 22 and 29) and states that any human right is subject to restriction when it "interferes with the public welfare". The majority of legal professionals argue that the spirit of such restriction against rights based on "public welfare" is to protect other people's rights from infringement. In the LDP draft, every instance of the phrase "public welfare" is replaced with a new phrase: ''"public interest and public order"''. The booklet describes the reason for this change as "to enable the State to restrict human rights for the sake of purposes ''other than'' protecting people's rights from infringement",
but it remains unclear under what conditions the State can restrict human rights. It also explains that what "public order" means is "order of society" and its intention is ''not'' to prohibit the people from making an objection to the government, but it explains nothing about "public interest".
Provisions regarding the people's rights modified or added in the LDP draft include:
*
ndividualism The LDP draft replaces the word "individuals" with "persons" (Article 13). This change reflects the draft authors' view that "excessive individualism" is an ethically unacceptable thought.
* Human rights and the supremacy of the constitution: The current constitution has Article 97 at the beginning of the "Supreme Law" chapter, which stipulates that the constitution guarantees basic human rights to the people. The current, prevalent interpretation of Article 97 is that this article describes the ''essential reason why this constitution is the supreme law'', which is the fact that the constitution's spirit is to guarantee human rights. In the LDP draft, this article is deleted and the booklet does not explain any reason for the deletion.
* Freedom of assembly, association, speech and all other forms of expression: The LDP draft adds a new paragraph on Article 21, which enables the State to prohibit the people from
performing expressions "for the purpose of interfering with public interest and public order". The LDP explains that this change makes it easy for the State to take countermeasures against criminal organizations like
Aum Shinrikyo
, formerly , is a Japanese doomsday cult founded by Shoko Asahara in 1987. It carried out the deadly Tokyo subway sarin attack in 1995 and was found to have been responsible for the Matsumoto sarin attack the previous year.
The group says ...
.
* Right to property: The LDP draft adds a new paragraph stating that the State shall define intellectual property rights "for the sake of promotion of the people's intellectual creativity" (Article 29).
* Workers' rights: Workers have the right to participate in a labor union, but currently there is a dispute on whether
public official
An official is someone who holds an office (function or mandate, regardless whether it carries an actual working space with it) in an organization or government and participates in the exercise of authority, (either their own or that of their ...
s should be entitled to this right. The LDP draft adds a new paragraph to make it clear that public officials shall not enjoy this right or part thereof (Article 28).
* Freedom from torture and cruel punishments: Under the current constitution,
torture
Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogational torture, interrogation for information, or intimidating third parties. definitions of tortur ...
and cruel
punishments are "absolutely forbidden", but the LDP draft deletes the word "absolutely" (Article 36). The reason for this change is not presented in the booklet.
* "New human rights": The LDP draft adds four provisions regarding the concept collectively called "new human rights": protection of
privacy (Article 19–2),
accountability of the State (Article 21–2),
environmental protection
Environmental protection is the practice of protecting the natural environment by individuals, organizations and governments. Its objectives are to conserve natural resources and the existing natural environment and, where possible, to repair dam ...
(Article 25–2), and rights of
crime victim
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
s (Article 25–4). However, the draft only requires the State to make a good faith effort to meet the stated goals and does ''not'' entitle the people to these "rights", as the booklet points out.
* Obligations of the people: The LDP draft can be characterized by its obligation clauses imposed on the people. The current constitution lists three obligations: to work (Article 27), to pay taxes as provided for by law (Article 30), and to have all boys and girls under their protection receive ordinary education as provided for by law (Article 26). The LDP draft adds six more:
** The people must respect the national anthem and flag (Article 3).
** The people must be conscious of the fact that there are responsibilities and obligations in compensation for freedom and rights (Article 12).
** The people must comply with the public interest and public order (Article 12).
** The people must help one another among the members of a household (Article 24).
** The people must obey commands from the State or the subordinate offices thereof in a state of emergency (Article 99).
** The people must uphold the constitution (Article 102).
Additionally, although
defence
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense indus ...
of the national territory (Article 9–3) and
environmental protection
Environmental protection is the practice of protecting the natural environment by individuals, organizations and governments. Its objectives are to conserve natural resources and the existing natural environment and, where possible, to repair dam ...
(Article 25–2) are literally listed under the LDP draft as obligations of the State, these provisions let the State call for the "cooperation with the people" to meet the goals provided, effectively functioning as obligation clauses on the people's side.
* Equality: The current constitution guarantees equality to citizens, prohibiting any discrimination based on "race, creed, sex, social status or family origin". The LDP draft adds "
handicaps" (Articles 14 and 44) between "sex" and "social status", improving the equality under the law. On the other hand, the sentence "No privilege shall accompany any award of honor, decoration or any distinction" in the current paragraph (2) of Article 14 is deleted in the LDP draft, which means that the State shall be allowed to grant "
privilege" as part of national awards. The reason for this change is not presented in the booklet.
* National security: The LDP draft deletes the current provision declaring that armed forces and another war potential shall never be maintained, and adds new Articles 9-2 and 9-3 stating that the "National Defense Force" shall be set up and the
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
shall be its
commander-in-chief. According to the paragraph (3) of the new Article 9–2, the National Defense Force not only can defend the territory from a foreign attack and can participate in international peacekeeping operations, but also can operate to ''either'' maintain domestic public order ''or'' to protect individual rights.
* State of emergency: The LDP draft grants the Prime Minister the authority to declare a "state of emergency" in a national emergency including foreign invasions, domestic rebellions, and natural disasters (Article 98). When in a state of emergency, the Cabinet can enact orders that have the effect of the laws passed by the
ational Diet(Article 99).
* Relaxation of separation of religion and the State: The LDP draft deletes the current clause that prohibits the State from granting "political authority" to a
religious organization
Religious activities generally need some infrastructure to be conducted. For this reason, there generally exist religion-supporting organizations, which are some form of organization that manages:
* the upkeep of places of worship, such as ...
, and enables the State to perform religious acts itself within the scope of "social protocol or ethnocultural practices" (Article 20).
* Political control over the courts: Unlike the current constitution, which guarantees that the
Supreme court judges shall not be dismissed unless the "review" procedure stipulated by the constitution, the LDP draft enables the
Diet
Diet may refer to:
Food
* Diet (nutrition), the sum of the food consumed by an organism or group
* Dieting, the deliberate selection of food to control body weight or nutrient intake
** Diet food, foods that aid in creating a diet for weight loss ...
to define this review procedure through a Diet-enacted law, not the constitution (Article 79). The draft also states that the salary of a judge of both the Supreme Court and inferior courts could be decreased in the same manner as any other kind of public official(s) (Articles 79 and 80) by the subordinate offices of the State (namely, the
National Personnel Authority).
* Further amendments: The LDP draft states that a simple majority in the two Houses shall be adequate for a motion for a constitutional amendment (
Article 96). An actual amendment shall still require a national referendum, but a simple majority in "the number of ''valid'' votes actually cast", as opposed to "the number of qualified voters" or "the number of votes", shall enact the amendment (
Article 96).
2014 Reinterpretation
On 1 July 2014, a Cabinet meeting issued a decision on Article 9, reinterpreting the Constitution and approving
collective defense operations by the JSDF.
This decision was challenged as a violation of the Constitution by Japanese Federation of Bar Associations. Historically, the government has maintained that Article 9 forbids the right to collective defence.
See also
Former constitutions
*
Seventeen-article constitution (604) - rather a document of moral teachings, not a constitution in the modern meaning.
*
Meiji Constitution
The Constitution of the Empire of Japan (Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in for ...
(1889)
Others
*
Article 9 of the Japanese Constitution
is a clause in the national Constitution of Japan outlawing war as a means to settle international disputes involving the state. The Constitution came into effect on 3 May 1947, following World War II. In its text, the state formally renounces th ...
*
Article 96 of the Japanese Constitution Article 96 of the Japanese Constitution is a clause in the national Constitution of Japan specifying the process for making amendments. Details of the process is determined by the and the . The Constitution has remained unchanged since coming into ...
*
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany (german: Grundgesetz für die Bundesrepublik Deutschland) is the constitution of the Federal Republic of Germany.
The West German Constitution was approved in Bonn on 8 May 1949 and came in ...
*
Constitution Memorial Day
is a public holiday in Japan. It takes place on May 3 in celebration of the enactment of the 1947 Constitution of Japan. It is a part of the collection of holidays known as Golden Week (Japan), Golden Week.
History
After the Atomic bombings of H ...
*
Constitution of Italy
The Constitution of the Italian Republic ( it, Costituzione della Repubblica Italiana) was enacted by the Constituent Assembly on 22 December 1947, with 453 votes in favour and 62 against. The text, which has since been amended sixteen times, ...
*
History of Japan
*
Politics of Japan
Politics of Japan are conducted in a framework of a dominant-party bicameral parliamentary constitutional monarchy, in which the Emperor is the head of state and the Prime Minister is the head of government and the head of the Cabinet, which d ...
*
Proposed Japanese constitutional referendum Article 9 of the Japanese Constitution Referendum is a referendum that was expected to take place in 2020. In May 2017, then Japanese Prime Minister Shinzo Abe
Shinzo Abe ( ; ja, 安倍 晋三, Hepburn: , ; 21 September 1954 – 8 July 2022) ...
Notes
References
* The Constitution of Japan Project 2004. ''Rethinking the Constitution: An Anthology of Japanese Opinion''. Trans. by F. Uleman. Kawasaki, Japan: Japan Research Inc., 2008. .
*
* Kishimoto, Koichi. ''Politics in Modern Japan''. Tokyo: Japan Echo, 1988. . Pages 7–21.
* Matsui, Shigenori. ''The Constitution of Japan: A Contextual Analysis''. Oxford: Hart Publishing, 2011. .
*
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*
External links
Full text of Constitutionfro
*
Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Judicial Decisions for 2004 trans. Daryl Takeno, Asian-Pacific Law & Policy Journal
Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2005 trans. John Donovan, Yuko Funaki, and Jennifer Shimada, Asian-Pacific Law & Policy Journal
Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2006 trans. Asami Miyazawa and Angela Thompson, Asian-Pacific Law & Policy Journal
Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2007 trans. Mark A. Levin and Jesse Smith, Asian-Pacific Law & Policy Journal
Beate Sirota Gordon(Blog about Beate Sirota Gordon and the documentary film "The Gift from Beate")
* ''Shin Kenpou Sou-an'', Draft New Constitution. As released by the Liberal Democratic Party on 22 November 2005.
* Web page of the ''Shin Kenpou Seitei Suishin Honbu'', Center to Promote Enactment of a New Constitution, of the
Liberal Democratic Party.
* ''Nihon-koku Kenpou Kaisei Souan'', Amendment Draft of the Constitution of Japan. As released by the Liberal Democratic Party on 27 April 2012.
* ''Nihon-koku Kenpou Kaisei Souan Q & A''. As released by the Liberal Democratic Party in October 2012.
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1947 documents
May 1947 events in Asia
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