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Forty Years of the Constitution and Its Various Influences: Japanese, American, and European

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Forty Years of the Constitution and Its Various Influences: Japanese, American, and European FORTY YEARS OF THE CONSTITUTION AND ITS VARIOUS INFLUENCES: JAPANESE, AMERICAN, AND EUROPEAN YASUHIRO OKUDAIRA* I INTRODUCTION: AN OBSERVATION OF THE LEGACY OF THE OLD CONSTITUTION A few months ago when I was in West Berlin, I had an opportunity to talk with a German lawyer. Our conversation went like this: He said to me, "I understand that you are a public law professor. What field are you most interested in?" "I have been particularly interested in the field of free expression," I replied. "Aha, that is the field which is covered by Article 5 of our Constitution," the German lawyer stated. "That's right," I told him. "Whereas freedom of expression is protected by Article 5 of the Bonn Grundgesetz, the same protection is provided by Article 21 of the Japanese Constitution." The German lawyer commented, "That is to say, your Article 21 corresponds to our Article 5." A bit puzzled, he asked me, "But why does such an important institution as free speech come on the stage in such a sidetracked manner?" At first glance, his question seems to be concerned merely with the form or shape of the Japanese Constitution. But I do think that there is more to his question than that. The order of constitutional provisions establishing or guaranteeing concepts and institutions is inevitably determined by the ideas and theories that have driven the nation to making a constitution. The order of provisions is a reflection of the value system of the makers of the constitution. Now I had to try to explain to the German lawyer why freedom of expression in Japan is constitutionally guaranteed by Article 21 rather than by Article 5 or by even earlier articles. I did it as follows: While the first chapter of the German Constitution deals with the guarantee of various basic rights (Grundrechte), the first chapter of our Constitution is concerned with the tenn5 or emperor system, which is followed by the so-called "pacifist" or "peace" clause, Article 9. Article 9 by itself makes up the second chapter. Then, our Bill of Rights makes an entrance in the form of the third chapter, and of course, Article 21 is in this chapter. If those who make a constitution put at the beginning of the constitution what they deem to be the most important, the respect and guarantee of Copyright © 1990 by Law and Contemporary Problems * Professor, Faculty of Law, University of Tokyo. LAW AND CONTEMPORARY PROBLEMS [Vol. 53: No. I fundamental rights were regarded as paramount by the founders of the German Constitution. But in the case of the Constitution ofJapan, it was a bit different. Our founders seem to have considered that the most important thing to do in terms of the business of making a constitution was to let the tenni system survive, and preserve it much as it used to be under the old constitution. I concluded my observation by saying, "The sidetracked treatment of the freedom of expression in our Constitution can be understood only in relation to the survival of the tennd system or the legacy of the old constitution.", At present, more than forty years after the promulgation of our Constitution, it is quite an arguable question whether the tennj system still occupies a real, pivotal position in the constitutional regime, and whether the people still regard that system as one of the most important institutions of government. I believe that the role that the tennd is expected to perform has gotten considerably smaller-far smaller than expected at the time of the promulgation of the new Constitution, and that the people in general have become accustomed to the tenn5 playing such a small role. It should be understood that the intention of the founders of the Constitution that the tennd system be an integral part of the Constitution, and as such perform politically meaningful functions, did not come to be realized. This goal for the tennd system, which was contemplated by the elite, was largely neglected in the process of constitutional development. However, we should keep in mind the historical fact that the founders were almost fanatical about insisting that preservation of the tenn5 system be the most important aim of the Constitution. I have been referring to the constitutional founders, among whom the Supreme Commander of the Allied Powers ("SCAP") and his staff were included. It is a well-known fact that lawyers working for the Government Section of SCAP took the initiative in drafting the Constitution. As a matter of fact, the plan that a chapter dealing with the tennd system would come first originated in the so-called "MacArthur draft" of the Constitution rather than from any explicit demand of the Japanese Government. General MacArthur decided that it would be better for SCAP and for Japanese society to keep that system alive in a modified and weakened form and to utilize it to recover from the severe war damage. Needless to say, the idea of the survival of the tennj system concerned the Japanese Government immeasurably, since it had been afraid that it would be forced to abolish the tennd system altogether. 1. Perhaps some of you are puzzled with the term tennd. Emperor is the English translation of tennd and the usage of emperor prevails throughout the world. (In Germany, they refer to tenni as kaiser. Kaiser exactly corresponds to emperor.) The use of the word emperor as connoted by tenni originates from the official English text of the Meiji Constitution. The original title of the Meiji Constitution is The Constitution of the Empire ofjapan. As I understand it, empire should be, as with the Holy Roman Empire or the British Empire, more than a mere kingdom. I do not think that the definition of empire could be applicable to the Meiji state, but its constitution proclaimed it to be an empire. To that extent, under the Meiji Constitution, the word emperor, corresponding with the expression empire, is perhaps appropriate, if not accurate. However, the Empire of Japan came to naught after World War II. The Empire was gone. Thus, for example, imperial University of Tokyo became merely University of Tokyo. Without the Empire of Japan, there is no basis for calling the tenno "emperor." Page 17: Winter 1990] FORTY YEARS OF THE CONSTITUTION The constitutional modification of the tenn5 system was done in a wholesale manner. We can say that it was almost revolutionary. Sovereign power that had resided in the tenn5 system was now transferred to the people's hands.2 Why, then, did the founders dare to assign that modified institution to the first chapter in the text of the Constitution? The reason is very simple: They just followed the way of ordering chapters found in the old Constitution. Once they determined the survival of the tenn5 system, they felt that it would be better to have the appearance of continuity from the Meiji Constitution to the new Constitution. In the Meiji Constitution, the first seventeen articles were devoted entirely to the tenn5 himself. This structure was most appropriate to the Meiji Constitution, the aim of which was to establish the principle of tenn-above-all. It was natural, even necessary, for the old Constitution to begin with the tenno. It is well known that the Meiji Constitution, promulgated in 1889-exactly one hundred years ago-was made under the strong influence of the Prussian Constitution of 1850. This is true to a great extent. However, so far as the placement of the tenni clauses of the Meiji Constitution is concerned, no such influence can be seen. In the Prussian Constitution, the first chapter (Title I) deals with the state territory, which is followed by the second chapter (Title II), "concerning the rights of the Prussian People." Only in the third chapter (Title III) do provisions appear "concerning the Crown" (Articles 43-59). This fact indicates that the Prussian Constitution was not free from the impact of the 1848 revolution and the Frankfurt (Pauls-Kirche) Constitution of 1849. Of course, the draftsmen of the Meiji Constitution did not like that aspect of their Prussian model and, instead of copying that aspect of the Prussian Constitution, they adopted the style of the constitutions of such southwestern states as Bavaria (1818), Baden (1818), Wuirttemburg (1819), and Hessen 3 (1820). 2. However, it should be noted that the draftsmen of the Constitution tried everything, as I shall emphasize in the text, to conceal the appearance of this characteristic of the "revolution." For example, Article I of the 1947 Constitution reads, "The Emperor [lenno in my terminology] shall be the symbol of the state and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power." The construction of this Article is highly sophisticated. This single sentence combines two different matters into one. On one hand, it discusses the status of the tenno and gives a constitutional basis for the tennJ system. On the other hand, it explains the location of sovereign power, or, rather, it implies the transfer of sovereign power from the tennd to the people. At any rate, Article 1 is a delicate, complicated sentence. 3. Details of these constitutions vary. Some dealt first with the territory or general characteristics of the states concerned and then with the Crown and the royal family; others referred first to the crown as the Oberhaupt (head) of the state. The Belgian Constitution of 1831-in addition to the Prussian Constitution of 1850-influenced the Meiji Constitution. However, there is a vast difference between the Belgian and the Japanese Constitutions with respect to the style of the provisions concerning the Crown.
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