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Constitutionalism in Japan – MBA 1/2008 – Prof. Teruji Suzuki Kozminski Academy, Warsaw Constitutionalism in Japan The Characteristics Despite of such a socio-political backgro- of the Meiji Constitution of 1889 und, Japan could not avoid introducing some The history of modern constitutional law constitutionalism prevailed among the We- in Japan was divided by the two constitutions; stern scholarship at the time. namely, the Meiji Constitution of 1889 and the Hirobumi Ito, chief drafting member, and Showa constitution of 1946. then prime minister, was himself visited to Germany and Austria to study constitutional The Meiji Constitution of 1889 was the first law and its political repercussions in Europe. written constitution in Asia, which was put As a result the constitution had received into effect on November 29, 1890, and was some of the scholarly influences on constitu- given to the people from above in the name tional thinking at the end of the 19th century, of “Tenno”, Emperor. Although needs of le- in particular that of the German school. gal reform was felt among the leaders from There were two distinctive views on the the beginning of the Restoration of 1868, Meiji Constitution; the one who understood drafting of constitution had been prolonged that the Constitution was a step for further by political considerations. There were two development of authentic constitutionalism in reasons why the leaders had finally decided to Japan and the other who treated the Consti- draft the constitution; first, the government tution as basis of strong authoritarian state of was confronted with political demands of the divine Emperor (Takayanagi 1963). the people for democratization, called “Jiyu- minkenundou”, which claimed to realize the Emperor is the English translation of “Ten- five principles declared at the beginning of the no” and the usage of emperor as connoted by Restoration and, second from external aspects, Tenno originates from the official English text the building of modern legal system, compa- of the Meiji Constitution. The official title of rable with the West, was imperative in order the Meiji Constitution is “The Constitution to persuade the Western countries to revise of the Empire of Japan”. It is understood that the unequal treaties that had been concluded an empire should be as with the Holy Roman with these Western countries at the middle of Empire or the British Empire, more than a the 19th century. mere kingdom. Although the definition of empire could be applicable to the Meiji state, The Meiji constitution was completed in its constitution proclaimed it to be an empire. such a background. Therefore, it was true, To that extent, under the Meiji Constitution, as some criticized, that it was a constitution the word emperor, corresponding with the ex- which was classified as a “pseudo” modern pression empire, is appropriate, if not accurate constitution (Okudaira 1993). (Okudaira 1993). 12 – MBA 1/2008 – Ohtsu Incident of 1891 lowed any direct control and its authority was Looking back the 45 years of the constitutio- to be limited by imperial retention of compre- nal era since it was promulgated in 1889, there hensive prerogative powers. Yatsuka Hozumi were cases which indicated symbolically these who then, was a professor of constitutional two political stances on the Constitution. The law at the Imperial University of Tokyo, was first was a case of the “Ohtsu Incident case of known as a man of an authoritative interpret- 1891”, which during the official visit of Russian ing the Constitution at the end of the 19th prince to Japan in 1891 he was assaulted and century. According to his theory the elements injured by one of the policemen at the local of the state-hood based on the Constitution station, who was inspired by a ultra nationalistic were distinctive for the two categories be- political intention. Then, the government had tween “Kokutai” form of state and “Seitai” urgently dispatched a mission for apology taken form of government. The form of state could the fear of the bad inf luences on the diplomatic not be changed, but the form of government relations with the strong Imperial Russia into was subject to change. consideration. In addition, the government strongly demanded the Supreme Court to sen- The sovereignty of the Emperor consti- tence the accused policeman a heavy penalty, tuted the Kokutai of Japanese state. In that namely death penalty, due to political conside- way the absolute authorities of Emperor had ration. Responding to the political pressure, established. Tatsukichi Minobe, a professor of the chief judge of the Supreme Court Kojima constitutional law at the Imperial University emphasized on independence of judiciary under of Tokyo inspired by German scholar, Rudolf the Meiji Constitution and it should be neutral Ihering (1818–1892) challenged the theory by and justified by rules of law concerning inter- insisting upon that sovereignty resided in the pretation of laws in general and application of state, of which the Emperor was but an organ, the criminal code even in a case like that. As the “Tennno kikansetsu”. result, the court had succeeded to make a sen- tence based on adequate rules, but not a death Although at the beginning the contro - penalty, as an ordinary case in order avoid such versy was an academic and theoretical one on a political consideration (Miyazawa 1952). constitutional theories over the status of the Emperor, it concealed a political controversy Minobe Theory between proponents of executive supremacy Since theory of separation of power was first and of legislative supremacy. Besides, the de- in a certain degree, appearance, introduced bates had influenced on political circled and into the Constitution the relation between the it was ill-fated by the political atmosphere. In executive and the legislature was not precisely 1935, one of the extreme conservative senates defined. It was considered that the Constitu- of the Upper House, who was supported by tion envisaged a strong bureaucracy with social some ultra conservative and militant groups prestige and honors from the divine Emperor accused officially the Minobe theory as a dan- because they were nominated formally by the gerous one, unnecessarily provocative against divine Authorities. The Diet was not to be al- the divine statehood of Japan. 13 – MBA 1/2008 – Although responding to it Minobe had been Some Characteristics of the Showa given a chance to explain his theoretical stance Constitution of 1946 at the Upper House because he was himself As the result of the unconditional surrender member of the Upper House, and for his state- of the Second World War Japan‘s status was in ment the public applauded. Minobe, however, revolutionary manner changed. According to the had to later resign post of the member but conditions defined by the Potsdam Declaration also as a professor of constitutional law at the of 1945 Japan’s territories were limited by ma- Imperial University of Tokyo because of politi- inly four islands including of Honshu, Kyushu, cal pressure, and in addition, his writings also Shikoku and Hokkaido. Most of the other terri- were banned to publish (Takayanagi 1963). tories like Taiwan (Formosa), Korea and Sacha- Thus above, under the Meiji Constitution rin (Karafuto), which were annexed or taken as true and unreserved democracy could not the results of wars and administrated until 1945 be attained. The very word “democracy” had to be returned the previous ethnic peoples or “liberty” was not permissible, although historically lived there. These procedures had to there were a slight bright time like “Taisho be decided later by the Allied Powers. Democracy” recorded (1905–25). Under After the surrender was signed on 2nd Sep- Emperor’s sovereignty the state and the people tember 1945, Japan was officially under the as a whole, were ruled with the utmost cautio- Occupation of the Allied Powers. us (paternalistic) attentions subjected to the Under the Occupation of the Allied Powers rules of the divine state (Miyazawa 1952). since 1945, although the government of Japan However, the democratic element s of the formally existed, the de fact administrative Meiji Constitution gave way to totalitarianism power on the basis of the Potsdam Declaration and militarism after the Manchurian Incident of 1945 was controlled by the Occupation Aut- of 1931. horities, mainly the government of the USA. In 1932 a group of young military officers as- Comparing the situation with the German’s sassinated Prime Minister Inukai who had been case Japan was different from Germany be- one of the leaders of constitutional government cause Japan was permitted to sustain her own thinking. In this way the self-styled nationalists unified government under the Occupation killed the party cabinet system. They succeeded (indirect occupation of the Allied powers). in gaining direct control over the government Under such a socio-political environments at the sacrifice of democratic control though the Showa Constitution of 1946 was drafted parliament. Again the incident of 1936, a group by the experts of both the Japanese side and young officers assassinated a number of leaders the staff of the Occupation authorities with in- of political and business leaders and demanded fluential advises of the occupation authorities the establishment of renovated government. (Supreme Commander for the Allied Powers The decision on military expansion by “Chi- = SCAP, or delegates of the members ) and na Incident of 1937” and successive declaration then, Parliament adopted
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