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The Meiji Constitution: Theory and Practice

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The Meiji Constitution: Theory and Practice East Asian History VOLUME 1 • JUNE 1991 THE CONTINUATION OF Papers on Far Eastern History Institute of Advanced Studies Australian National University Editor Geremie Barme Assistant Editor Helen Lo Editorial Board John Clark Igor de Rachewiltz Mark Elvin (Convenor) John Fincher Helen Hardacre Colin Jeffcon W.].F.Jenner Lo Hui-min Gavan MacCormack David Marr Michael Underdown Business Manager Marion Weeks Production Oahn Collins Design Maureen MacKenzie, Em Squared Typographic Design Printed by Goanna Print, Fyshwick, ACT This is the first issue of EastAsian History in the series previously entitled Papers on Far Eastern history. As before, the journal will be published twice a year. Contributions should be sent to The Editor, EastAsian History Division of Pacific and Asian History, Research School of Pacific Studies Australian National University, GPO Box 4, Canberra ACT 2601, Australia Phone 06 249 3140 Fax 06 249 1839 Subscription Enquiries The Business Manager, EastAsian History,at the above address Annual Subscription Rates Australia A$20 Overseas US$20 iii Jt CONTENTS 1 The Three Kingdoms and WesternJin: A History of China in the Third Century AD Raje deCrespigny 37 City Planning and Palace Architecture in the Creation of the Nara Political Order: The Accomodation of Place and Purpose at HeijO-ky6 WilliamH. Coaldrake 55 The Darqad and the Uriyangqai of Lake Kobsogol Ceveng (C.t.tamcarano�translatedby I. deRachewiltz &j.R.Krneger 81 Concepts of Nature and Technology in Pre-Industrial Japan TessaMorris-Suzuki 98 The Ching-shan Diary: A Clue to its Forgery Lo Hui-min 125 The Meiji Constitution: Theory and Practice Masuda Tomo�translatedby A. Fraser 141 Using the Past to Save the Present: Dai Qing's Historiographical Dissent GeremieBarme iv Cover calligraphy Yan Zhenqing M�J�O, Tang calligrapher and statesman Cover illustration 'Rokuro'[Lathel, by Tachibana Minko ��IttI, in Saiga shokunin burui�il�A m� [Illustrations of different types of craftsmenl, Edo, 1770 THE MEIJI CONSTITUTION: THEORY AND PRACTICE (1890-1913) � Masuda Tomoko To explain the Emperor system of pre-war Japan requires a correct This is a modified translation of the first understanding of the Meiji Constitution as it operated in politics, but this is sectionof Masuda's "Meiji rikkenseito tenno,· Shakai kagaku kenkyU41, no. 4 (December a surprisingly hard task. One reason is that Ito Hirobumi's Commentarieson 1989): 61-74. tbe Constitutionldid not carry much weight in government circles; practical lIto Hirobumi, KempOgikai(1889). For the politics gave rise to other interpretations necessary for the running of the English edition, see Count Hirobumi Ito, post-1890 regime.2 An example of this can be seen in the actual oper­ Commentaries on the constitution 0/ the ation of emergency ordinances CkinkyU-cbokurei�;it fJJ �prescribed ) by empirr!o/Japan (1889; reprint ed.,Westport: Greenwood Press, 1978). Drafted by Inoue Article 8 of the Constitution: Kowashi, with revisions and deletions by It6 The emperor, in consequence of an urgent necessity to maintain public safety or after joint investigations with Ito Miyoji, to avert public calamities, issues, when the Imperial Diet is not Sitting, imperial Hozumi Yatsuka, Tomii Masaaki and others, who had taken part in the drafting lOVER ordinances in the place of law. Such imperial ordinances are to be laid before the Imperial Diet at its next session, and when the Diet does not approve the said ordinances, the government shall declare them invalid for the future. Figure1 Emperor Meiji in mid-reign In May 1891, just after the formation of the 1st Matsukata cabinet, the Crown Prince of Russia while on a state visit was wounded at Otsu by aJapanese policeman. Home Minister Shinagawa Yajiro obtained an emergency ordi­ nance requiring prior inspection of newspaper articles by the government to prevent "fickle rumours and speculative reports."3 Next, in January 1892, the cabinet drew up an emergency ordinance (yokaireiTJ&�)providing for strict measures against disorderly conduct during general elections and presented this to the Diet during its 2nd session (May-June 1892). This Diet was dissolved while the ordinance was still under scrutiny, but the cabinet enforced it anyway in the ensuing general election. When the 3rd Diet opened in November 1892, the ordinance was presented for Diet approval; it was passed by the House of Peers but rejected by the House of Representatives, so the cabinet finally cancelled it. 125 126 MASUDA TOMOKO lof the Constitution or who held posts as The 3rd Ito cabinet in February1898 laid down new penalties for electoral professors of law. See Inada Masatsugu, infringements by an emergency ordinance, and after applying it in the next Meiji kempo seiritsu shi, vol.2 (Tokyo: general election put it before the 12th Diet of May 1898. The House of Peers Yiihikaku, 19(2), pp.859-88. approved, but it was still under scrutiny in the House of Representatives 2 Although the Commentaries were inten­ ded to bedefinitive its drafters had their own when this Diet was dissolved. Ito's cabinet resigned shortly afterwards; the views, which were often quite diverse. For Okuma Shigenobu cabinet in July 1898 declared this emergency ordinance the political skills deployed by the drafters to be invalid, while issuing one of its own. But the Okuma cabinet collapsed of the Constitution in handling the first so Diets, see Banno )unji, Meijikemp6 taisei no before the next Diet met, it was left to the 2nd Yamagata cabinet to put kakuritsu (Tokyo: Tokyo Daigaku Shup­ this ordinance before the 13th Diet (Nov.-Dec. 1898). When rejected by the pankai, 1971). Also, for the discordant views House of Representatives, the cabinet announced its cancellation without of Inoue Kowashi, see Sakai Yiikichi,Inoue even consulting the House of Peers. Kowashi 10 Meiji kokka (Tokyo: Tokyo Dai­ gaku Shuppankai, 1983), p.207 fT. In September 1905 certain concessions in the Treaty of Portsmouth 3 Tokyo nichinichi shim bUll, 1 December ending the Russo-Japanese war aroused anger throughout the nation; rioting 1891. See Nihon kokusei jiten kanko­ broke out in Tokyo after demonstrations in Hibiya park, with attacks on kai, Nihon kokuseijilen, voL 1 (Tokyo: Rengo police outposts, newspaper offices and various other agencies. To restore Shuppansha, 1953), p.33. public order the 1st Katsura Taro cabinet issued an emergency ordinance putting "Tokyo Metropolitan City, in whole or in part" under martial law and Figure 2 providing for "control over newspapers and magazines.,,4 One month before Hihiya riots in September 1905 THE MEI)I CON STITUTION : THEORY AND PRACTICE 127 the next Diet met in December 1905, the cabinet itself cancelled this 4 Sumitsuin kaigi gijiroku, vo1.10 (Tokyo: emergency ordinance with another one. Tokyo Daigaku Shuppankai, 1984), pp.220- 40. As one can see from these examples, emergency ordinances were issued 5 Minobe Tatsukichi, Cbikujo kempaseigi by successive cabinets on their own volition, seemingly without any ftxed 0927; reprint ed., Tokyo: Yiihikaku, 1932), principle. The 1st Matsukata cabinet did indeed seek the approval of both p.207. Also his "Kinkyii jorei ni tsuite" in Houses of the Diet as prescribed in the second clause of Article 8. But the Kempaoyobi kempashi kenkyU(reprint ed., ftrst party cabinet headed by Okuma declared an emergency ordinance to Tokyo: Yiihikaku, 1908)criticized the inter­ pretation of Article 8 and its application by be invalid without consulting the Diet, as did the 1st Katsura cabinet. While Ichiki KitokurO, head of the Legislation the Okuma cabinet cancelled Ito's emergency ordinance on the ground that Bureau under the 1st Katsura cabinet at the it violated Article 9 of the Constitution with its provision that "no ordinance time of the Hibiya Riots. This article is a shall in any way alter any of the existing laws," the Katsura cabinet took the digest of three essays Minobe wrote in controversy with Hozumi Yatsuka on this different step of using one emergency ordinance to cancel another.5 issue. According to Ito's Commentariei' an emergency ordinance had the 6 Ito Hirobumi's Kempagi !eai (Tokyo: Maru­ power to alter laws, but this infringed Article 5 of the Constitution, which zen, 1940), pp.19-22, in its interpretation of states: The Emperor exercises the legislative power with the consent of the Article 8 was a revision by Ito Miyoji and Diet. So the Commentariesdeclare that emergency ordinances issued under others of Inoue Kowashi's original draft. According to lnada (Meiji kempa seiritsu Article must at all costsbe restricted to "cases of urgent necessity." Chapter 8 sbi , p.885), this cut out a provision that "at 2 of the Constitution on the Rights and Duties of Subjects guarantees times of urgency, the emperor decides individual freedom "within the limits of law."7 Why it was so necessary to whether it is appropriate to issue an emer­ gency ordinance or not,· and added provi­ seek approval fo r emergency ordinances in the next Diet if they were to sions that the cabinet must submit them to remain in fo rce becomes clear from the fo llOWing: the next Diet for approval if they were to Article 29 Japanese subjects shall, within the limits of law, enjoy the liberty remain in force; if it did not do so, or failed to cancel them when the Diet withheld its of speech, writing, publication, public meeting and associations. consent, the cabinet would be held respon­ And in addition: sible for violating the Constitution. Article 23 No Japanese subject shall be arrested, detained, tried or punished, 7 On the relationship between the rights of subjects and the emperor's prerogative to unless according to law. issue orders, seeOkudaira Yasuhiro, "Senzen The Commentaries, with a high respect fo r "the limits of law," ftrmly Nihon kempa ni okeru 'kihonken' no kan­ nen,· SbakaiKagakuKenkyU18, no.6(967).
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