Revising the Japanese Constitution

THE circulation in 1950 of a report^[i] prepared for the Supreme Commander in Japan, General MacArthur, made known that the original draft of the postwar Constitution of Japan had been written by members of Government Section of the Supreme Command of the Allied Powers (SCAP) in February 1946. The first volume of this authoritative report included a frank statement of facts already known to many. However, it left room for questions, some of which have now been answered by General MacArthur and by General Courtney Whitney, who was Chief of Government Section. The fresh data were elicited by a "Study Group" appointed by the Japanese Research Council set up in 1956 under authority of the Diet to examine into the origin, operation and possible revision of the Constitution.^[ii] Professor Kenzo Takayanagi, Chairman of the Research Council, headed the Study Group, which visited the United States in November and December of 1958. He summarized its findings in an address before the Harvard Club in Tokyo on March 9, 1959.^[iii]

Although the SCAP draft Constitution was approved by the Japanese Diet with largely minor changes acceptable to SCAP, it has been regarded widely in Japan as a foreign imposition not wholly suited to a people of very different legal and social traditions. It has been criticized also as having been written hastily by men without adequate knowledge of Japanese civilization and with little regard either for the sensibilities of a mature citizenry or for the national right of self-determination. American scholars, the present writer among them, have made similar criticisms. Civilians employed in Government Section took part in writing the draft; although the extent of their influence has not yet been established, it undoubtedly was considerable.

The decision to prepare a constitution was made by General MacArthur, who interpreted directives from Washington very liberally. These directives required that the Japanese system of government be reformed along democratic lines, in accordance with the Potsdam Proclamation of 1945. They did not require SCAP to write a new constitution. On the contrary, they specifically laid down, as did the Potsdam Proclamation, that the new government should be established "in accordance with the freely expressed will of the Japanese people." Moreover, the victor powers had agreed at Moscow in December 1945 to set up a Far Eastern Commission to oversee the Occupational administration. Under this agreement "any directives dealing with fundamental changes in the Japanese constitutional structure . . ." were to be "issued only following consultation and the attainment of agreement in the Far Eastern Commission." Actually the Commission did not function until three months later. Before then, the draft Constitution, prepared in early February, had been presented to the Japanese Foreign Minister by General Whitney. It was not issued as a directive, but General Whitney urgently advised acceptance.

During its visit to the United States the Study Group headed by Professor Takayanagi interviewed some 20 Americans who had served with SCAP or were known to be students of Japanese politics. In my talk with members of the Group, I was impressed by their calm approach to the subject, by the apparent absence of vindictiveness, and by their desire to make clear that the purpose of their mission was non-political fact-finding. They obviously hoped to remove obstacles to reasonable consideration of constitutional revision, not to intensify prejudices in Japan or embarrass Americans. They regretted that Generals MacArthur and Whitney refused to see them but felt that the letters received from them in response to questions were quite adequate. They expressed appreciation of their cordial reception by a number of other Americans who had served in the Government Section of SCAP or had specialized in the study of Japan's political development. They also benefited from hitherto unavailable documents furnished by the Department of State.

In his address of last March, Chairman Takayanagi dealt mainly with his group's findings on the following aspects of SCAP's reformism: (1) its attitude toward the so-called Emperor system, which embodies the doctrine of the oneness of the reigning dynasty with the state, termed kokutai by the Japanese; (2) the proper interpretation of Article 9 of the Constitution, the "no war" provision; (3) SCAP's intentions in writing a draft Constitution; (4) General Whitney's attitude toward Cabinet acceptance of the draft; and (5) SCAP's authority to prepare a draft.

On the first aspect Takayanagi quotes MacArthur's letter:

The preservation of the Emperor system was my fixed purpose. It was inherent and integral to Japanese political and cultural survival. The vicious efforts to destroy the person of the Emperor and thereby abolish the system became one of the most dangerous menaces that threatened the successful rehabilitation of the nation.

General MacArthur credits Prime Minister Shidehara with suggesting that an article outlawing war be included in the new Constitution. But he did not say that otherwise he would not have insisted upon Article 9.^[iv] Dr. Takayanagi did not appear to be perturbed by inclusion of the article, in view of MacArthur's explanation that "it was aimed entirely at foreign aggression and was to give spiritual leadership to the world. . . . Nothing in Article 9 prevents any and all necessary steps for the safety of the nation." He surmises, however, that SCAP's failure to inform the Japanese Government that the article did not preclude armed forces for defensive purposes led Dr. Kanamori, deputed by the Cabinet to explain the draft Constitution to both Houses of the Diet, to misinterpret the article and thus to arouse opposition from conservative members and provide plausible ground for later Socialist intransigence toward evasion, amendment or repeal of the article.

On the point of SCAP's intent in preparing the original draft, the investigators learned that this "extraordinary step had been taken, without the knowledge of the American home government," because of the failure of a Japanese committee, headed by Dr. Joji Matsumoto, to produce an acceptable draft. However, says Dr. Takayanagi, "SCAP merely desired that the Japanese Government prepare a draft similar in fundamental principles and basic forms to the draft presented. It [the American draft] was to be a suggestion and advice within the powers of the Supreme Commander." In explanation of the haste with which it was written, Dr. Takayanagi quotes General MacArthur: "The choice was alien military government or autonomous civil government. The pressure for the former by many of the Allied nations was intense, accompanied by many drastic concepts designed to fracture the Japanese nation. My fixed determination and purpose was to avoid such violent discrimination and to reconstruct Japan's sovereignty along liberal lines as soon as possible." This statement satisfied the investigators that the American draft was advisory, not mandatory, that it did not contravene the Moscow agreement, and that General MacArthur "was still following the policy of his home government," which was faithful to the requirement of the Potsdam Proclamation that the new government of Japan be established "in accordance with the freely expressed will of the Japanese people." Dr. Takayanagi avers: "The surmise that it was the intention of SCAP to impose an American type of constitution is wrong. It loses sight of the Allied pressure on SCAP."

Speaking for his colleagues as well as himself, Dr. Takayanagi accepts General Whitney's repudiation of the interpretation placed upon a statement which he made in presenting the SCAP draft to Mr. Yoshida, the Foreign Minister.^[v] With Mr. Yoshida at this midnight meeting was Dr. Matsumoto, whose draft had been rejected as being unresponsive to the Potsdam principles. Dr. Matsumoto reported to a committee of the Liberal Party that General Whitney had expressed doubt that the person of the Emperor could be guaranteed if the SCAP draft were not accepted immediately; and he interpreted this statement as a threat to bring the Emperor before the War Crimes Tribunal. Dr. Takayanagi refutes this interpretation very definitely: "We found, however, after due scrutiny of evidence, that this was a total misunderstanding on the part of Dr. Matsumoto. General Whitney was merely explaining the severe international atmosphere then prevailing."

There would be small profit at this time in comparing earlier comments on the writing of the Constitution with the findings of the Japanese mission. American writers have not questioned SCAP's motives. They have been concerned, as were many eminent scholars in the Diet, with the propriety and possible consequences of exerting great influence upon the process of constitutional reform in another state. They have found evidence that this concern was felt also by the Far Eastern Commission. They have feared the effect of the procedure upon Japanese comprehension of democracy and upon the prospects for its development in Japan. They have noted, however, that the Japanese people seemed to comprehend the spirit of good will evinced by the Occupation and were not unwilling to experiment with a system which few of them understood.

Post-Occupation cabinets have moved cautiously toward constitutional revision, partly in deference to the policy of coöperation with the United States, partly because of opposition from the strong Socialist Party, which has tended to view revisionism as a disguise for return of the old régime. The principal obstacle in the path of the revisionists has been the widespread sympathy with the determination of the Socialists to keep Article 9 in the Constitution. To strike it out, they maintain, would open the way to a new militarist oligarchy. Although Article 9 was in effect nullified before the Occupation ended, with the approval of SCAP, it has become the symbol of Socialist neutralism. The Liberal-Democratic--and conservative--Cabinet of Prime Minister Kishi favors repeal of the article; and this might well have been done but for the fact that the Socialists hold enough seats in the Diet to prevent his party from obtaining the two-thirds majority required to amend the Constitution.

The Kishi Cabinet, which is none too secure, is not attempting to hurry the process of revision. The law authorizing the Research Council affords it wide latitude in deciding its policies and procedure. The Council plans to take six years in all in preparing its report, which means that actual revision, if decided upon, will begin in 1962. The report will be in three parts. The first will give the history of the making of the Constitution; the second will be a sociological study of its operation; and the third will embody the Council's conclusions as to whether or not there is any need of revision. The program appears to meet with the approval of the Japanese people.

An editorial in The Japan Times of Tokyo, on November 29, 1958, set forth the general Japanese attitude toward the reformist phase of the Occupation:

The military occupation of Japan was a political experiment unparalleled in history. As such there were many aspects of it which reflected the lack of foresight as well as understanding of the problems involved on the part of the generally well-meaning experimenters. Yet we fall behind no one in pointing out the enormous amount it achieved by way of democratic reforms, for which credit is due almost entirely to the United States.

Therefore, the United States Government need feel no qualms about the Occupation. What is needed now is a dispassionate reassessment of the great experiment by both the former occupier and the formerly occupied. Coöperation on the part of the United States in this respect would have a salutary effect upon the psychological attitude of the Japanese people toward the United States, which has become palpable since the end of the Occupation. Toward this goal, reëxamination of the Constitution would be a step of foremost importance.

The Department of State and the Americans interviewed by the Japanese group demonstrated the hoped-for attitude of coöperation. Whether or not the Japanese will desire further evidence of this attitude, other than cordiality toward their independent decision regarding their system of government, remains to be seen. Undoubtedly American and other Western political scientists would welcome an opportunity to serve in an advisory capacity if invited to do so by the Japanese Government. But Japanese scholarship is well equipped for the task, defined by Dr. Takayanagi as being "to assure the growth of democracy by making it workable under a constitution understandable to the people," one that will "ward off any interpretation of it that could lead to dictatorship arising either on the right or on the left." Although accustomed to bureaucracy, the Japanese have proved their desire for democracy. Democracy, however, takes different forms, evolving as the genius of a people interprets it.

We cannot now forecast the outcome of the Research Council's labors but may note some indications of the probable direction constitutional revision will take. Premier Kishi's cabinet and the Socialists are in heated controversy over the treaty of mutual security signed with the United States in 1951. The Socialists demand that the treaty be abrogated and are believed to be willing to delete Article 9 of the Constitution if their demand is accepted. The Government desires to retain the treaty, though in a form revised to satisfy Japanese claims for equal status and other changes. Apparently the underlying motivation of the Socialists is threefold: their long-standing fear of conservative recidivism; their desire for diplomatic relations with Communist China, which, they contend, are held up in deference to the United States; and their neutralism in the cold war.

Other indications are that there will be changes in the Constitution not related to the controversy over military organization. The division of opinion between the Liberal-Democrats and the Socialists which was revealed in the Diet discussion of the draft in 1946 continues. The Liberal-Democrats control not only the Diet but the prefectural governorships and the prefectural and local assemblies. The Socialists hold approximately a third of the seats in the Diet and the assemblies but their strength is increasing and, while the voters distrust the left-wing Socialists, the party's representation in office seems smaller than its present popular following. Both parties are rent by factionalism and the leftward trend among the Socialists threatens to split the party in two. Should the split occur it seems probable that conservatively-minded revision would be hastened, and that it would reflect the views of those who characterize the present instrument as alien in authorship and idiom, destructive of the traditional status of the dynasty, disruptive of the family system and restrictive of military power.^[vi] The Socialists support the Constitution but would add more specific protections of human rights and clarify provisions designed to assure democratic operation of the parliamentary system.^[vii] The Liberal-Democrats made no mention of revision in their 1959 platform, warned by losses in 1955 when they made revision a major issue; the Socialists included a plank against revision in 1959.

Recommendations for revision by groups of Japanese political scientists have not diverged from the spirit of the Constitution, as Professor Ukai points out, but have aimed at clarifying and strengthening it. Quite naturally they agree that the status of the Emperor should be raised but without departure from the parliamentary system.^[viii]

Japan's phenomenal economic progress within the past decade would seem to assure a comparatively smooth political future. Yet there are those who match the prophets of a shift to the left with one to the right. One may not, therefore, ignore the proposals of a committee of the old Liberal Party, the Jiyuto, made in 1954. They would come close to restoring the Meiji Constitution. They would remove the constitutional safeguard of human rights, put back the power to issue ordinances on a par with the legislative power, authorize the Cabinet not only to dissolve the House of Representatives but to suspend the Diet, and revive the myth of imperial rule. War would be renounced in the preamble, but a military organization would be part of the governmental structure. While these proposals recall the thinking of dominant prewar oligarchs, they ignore both the growth of liberalism that had taken place before the war--exhibited in official circles by such courageous leaders as Ozaki, Takahashi, Shidehara and others--and the present intellectual and moderate-labor spokesmen who compose a capable, vigorous and fearless alliance against the return of "behind-the-curtain" government. I believe the present Emperor and Crown Prince find this alliance worthy of moral support. Nor do they mirror progressive business attitudes, which oppose the trend toward reversion to centralized bureaucracy that has been embodied in post-Occupation legislation in such fields as education, local government, labor regulation and police administration. When I add to these protagonists of liberalism the mass sentiment for a system that has brought peace and a freer way of life, whether imported or not, I am encouraged to expect that while there will be changes in form and phraseology the Constitution to come will embody the substance of a democratic system.

^[i] Supreme Commander for the Allied Powers, Government Section, "Political Reorientation of Japan, September 1945 to September 1948," 2 v. Washington: G.P.O., 1949.

^[ii] The Research Council is composed of 30 members of the Diet and 20 non-member scholars.

^[iii] Published in The Japan Times, March 16, 1959.

^[iv] Article 9 reads: "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.

"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."

^[v] General Whitney's account of the presentation is given in his book, "MacArthur: His Rendezvous with History." New York: Knopf, 1956.

^[vi] Conservative arguments are presented by Y. Nakasone, "Reasons for Constitutional Revision," Contemporary Japan, nos. 7-9, 1956, p. 401-413.

^[vii] This position is argued by K. Inomata, "In Defence of the Constitution," Ibid., nos. 4-6, 1956, p. 200-215.

^[viii] Nobushige Ukai, "Constitutional Trends and Developments," The Annals, November 1956, p. 1-9.