Implementation
The implementation of the Constitution is a challenge for the country which was run under a different political, economic and social system. Therefore, the role of the GHQ/SCAP was dominant in implementing the Constitution.
Needless to say the GHQ/SCAP had the power to push the Japanese Government directly and indirectly to take necessary measures to implement.[72] There were many ways for implementation: legislation to realise the Constitution, reforms of the government systems such as bureaucracy and local government, and education at all levels and awareness programmes for the public.[73]The SCAP’s liberal occupation policy (demilitarisation and democratisation) was drastically changed because of the beginning of the Cold War. The SCAP ordered the cancellation of the nationwide general strike in 1947 and began to restrict workers' rights (changing course).[74] After the occupation was over in 1947, the Japanese LDP Government did not have the motivation to continue with the implementation of the Constitution. For the Government, the Constitution was something to change, not to maintain.
A. Complete Legal Reforms
'the Japanese law had to be examined and overhauled from the perspective of the new Constitution. 'therefore, a thorough legal reform took place. 'there are two groups. One group is made up of new legislation to realise the content of the Constitution: the Diet Act, the Cabinet Act, the Court Act, the Public Office Election Act, the Nationality Act, the Public Assistance Act, the Basic Act on Education and the Labor Union Act, etc. The other group is made up of the old law which did not comply with the Constitution. Particularly, the Civil Code and Penal Code, as the main pillars of the legal system, had to be examined from a human rights point of view in the Constitution.
Those reforms would not have been realised without the strong assistance and in some cases imposition, of the GHQ/SCAP.
'the Five Great Reforms (such as the emancipation of women by giving women voting rights, promotion of the trade union, liberalisation of education, abolishing the secret police, and democratisa- tion of the economic system including land reform) fundamentally changed not only the legal structure of Japan but also its economic and social structure. For example, agrarian reform transformed landless peasants and poor farmers into small farmers with a certain amount of land whose value drastically increased during the economic boom. Economic stability offered the basis for democratic education. Therefore, for those who welcomed such changes, it was more of an ‘education’ than an ‘imposition’ and it gained strong support. 'the same can be said about gender equality. Ironically, it would not have been so successful if it had been done on its own.However, with reforms very much underway and labour union activity intensifying, the SCAP shifted its occupation policy out of fear of the flourishment of communism. Moreover, after the occupation forces withdrew, the Japanese Government rapidly returned to its previous position and became more conservative. Therefore, the implementation of human rights in the Constitution has not been tackled systemically. The Government failed to establish a national human rights institution and is reluctant to ratify optional protocols of the UN human rights treaties which enable individuals to report human rights violations by the states. Many issues remain without substantial developments having been made.
Women’s rights are a good example. If the SCAP had not installed universal suffrage, it would have taken more years to realise it. Without Shirota’s effort, Article 24 might not have been born. Without the effort of Ethel Weed, a female officer in the Civil Information and Education Section, to communicate with Japanese feminist leaders who could for the first time access the decision-making process, the Women’s and Minor’s Bureau (WMB) within the Labour Ministry could not have been born.[75] 'the WMB was the only government office which solely worked on issues concerning women and children.
Moreover, ‘The real impetus for women's rights measures in Japan emerged from a policy alliance between a group of low-ranking American women serving in the Occupation and a core group of Japanese women leaders' and ‘there were no women at top decision-making levels in either administrative hierarchy, Japanese or American’.[76] The alliance encountered several difficulties: One from the Japanese men (government, parliamentarians, and bureaucrats) and the other was from the US male officers.[77] Another breakthrough for women's rights came from outside in the form of the ratification of the Convention on the Elimination of Discrimination against Women in 1985.B. Ceremonies, Events and Education
When the Constitution of Japan was enacted, there were ceremonies and awareness-raising events, textbooks published, and memorabilia issued by the Government and the private sector. Under the influence of the occupation officials, the Constitution Popularization Society (CPS) was established in December 1946. It was headed by Hitoshi Ashida, then a member of the House of Representatives (the lower house of the Diet), who later became Prime Minister. The CPS held seminars and lectures for public servants and the general public, published textbooks and promoted activities to increase interest in the Constitution. The CPS even asked three major film companies to produce films on three constitutional themes: equality of men and women, popular sovereignty and the renunciation of war.
Education about the Constitution has been considered important, not only because it would familiarise the Japanese people with its content but also because it saw it as essential for developing public citizens (komin) who could understand and support democracy. A textbook for junior high school first-year students, published by the Ministry of Education in 1947, is a good example. Some illustrations in the book remained popular, and contemporary textbooks often reuse them, even though the book lost its status as a textbook immediately after the US occupation ended.
The tradition continues. Currently, from year six of elementary school onwards, school textbooks cover various aspects of the Constitution. By way of illustration, students of junior high school read about 35-40 pages concerning human rights and pacifism, and 35-40 pages covering the constitutional institutions (in total, the constitutional issues discussed amount to 40 per cent of the textbook on the subject of Komin (Civics), which is a mandatory subject). High school students can choose subjects like Seiji Keizai (Political Economy) and Gendai Shakai (Modern Society) in which students can learn the Constitution and government institutions (making up roughly one-third of each of the textbooks).
C. Public Perception Instead of a National Referendum
There has been no official national referendum to amend the Constitution. Instead, the public survey on the Constitution has been regularly used to assess the popular support for the Constitution. Every Constitution Day (3 May), a national holiday, mainstream media publish the results of a public survey. Typical questions in the survey are whether the Constitution should be amended and whether Article 9 should be amended.
Before seeing the results of the public survey, it is helpful to see how well people in Japan understand the Constitution. According to a 2017 survey conducted by the Japan Broadcasting Corporation (NHK), public understanding of the Constitution has improved.[78] The percentage of people who correctly picked the subjects covered in the Constitution from among six choices - popular sovereignty, respect for fundamental human rights, renunciation of war, national holidays, the prohibition of alcohol for minors and the national anthem (the first three choices are correct) - increased from 35 per cent in 1974 to 51 per cent in 2017. With the effect of public education at school mentioned before, it is fair to say that the Constitution is something most people know exists, although how much they know about the Constitution and how they feel about it, varies.
How, then, do people in Japan evaluate the Constitution?[79] In the 1950s the LDP pledged to revise the Constitution in the LDP Policy after the occupation was over in 19 52.[80] It argued that the Constitution of Japan was imposed by the West (the ‘imposed’ constitution).[81] For them, the imposed constitution is not democratically legitimate and it is necessary and important for the Japanese people to enact their constitution by themselves. However, public opinion against the amendment of the Constitution started to increase. In the 1960s-1980s, the majority of Japanese people were against the amendment of the Constitution, particularly Article 9.[82] It is because they suffered under the previous regime based on the previous constitution.[83] There is a broad consensus that the ‘new’ Constitution could be an answer to the question of how to prevent war. On the other hand, the LDP ruling party itself avoided putting the constitutional amendment on the election agenda and focused on economic development instead. In 1960, The Ikeda LDP Cabinet initiated a long-term economic development plan to double the income (the Income Doubling Plan) which supported the development of the Japanese economy which ranked second in 1968.
The new international environment after the end of the Cold War and the Gulf War required Japan to rethink its international policy, including its defence policy.[84] Therefore, public attitudes towards government decisions and policies changed. In 2002, 58 per cent of respondents found constitutional amendment necessary, up from 35 per cent in a previous poll in 1992. In the 1990s and 2000s, particularly because of the Gulf War and ‘War on Terror' after 9/11, the Government wanted to use the SDF to support US military operations. This triggered further constitutional debate. Some academics agreed with the Government, arguing that making an international military contribution is legitimised by the constitutional principle of internationalism (Preamble and Article 98).
Others argued that any form of military support was contrary to Article 9. However, the support for the amendment dropped in 2012 with the publication by the LDP of a draft amendment proposal.[85] The proposal envisaged significant changes, including establishing a national army, abolishing the Western concept of human rights, strengthening traditional family values and lowering the difficulty of constitutional amendment from a two-thirds majority of all the members of each House of the Diet to a simple majority. The public has since taken a more cautious attitude towards amendment. As a result, the percentage of those who found constitutional amendment necessary decreased to 43 per cent in 2017.[86]The 2017 survey showed that 82 per cent of people believed that Article 9 helps Japan's peace and security.[87] The survey showed that 73 per cent believe pacifism has been established in Japan, up from 58 per cent in 1974, while 57 per cent do not consider it necessary to amend Article 9 (25 per cent think it is necessary to amend it). At the same time, there is widespread popular support for the SDF. Most Japanese citizens consider the SDF useful (80 per cent) and constitutional (60 per cent). As natural disasters, such as earthquakes, typhoons and flooding, frequently hit Japan, the SDF's contribution to rescue and recovery work has been appreciated. Moreover, since its establishment in 1954, the SDF has never participated in military combat except for indirect assistance.
The most recent survey on the question of necessity of constitutional amendment in 2022 showed the following: necessary 56 per cent and unnecessary 37 per cent (Asahi Newspaper); necessary 60 per cent and unnecessary 38 per cent (Yomiuri Newspaper); necessary 35 per cent, unnecessary 19 per cent and ‘cannot say either way' 42 per cent (NHK).[88] Moreover, in the 2022 election for the Upper House, the NHK did a survey at the polling stations. According to this survey, 35 per cent consider constitutional amendment necessary, 25 per cent believe it to be unnecessary and 30 per cent have not decided.[89] However, towards the question ‘what policies were most important to you in the election?' only five per cent of respondents chose constitutional amendment (45 per cent of respondents chose economy, 15 per cent social security, 12 per cent international security, 10 per cent COVID-19, five per cent energy and environment, five per cent others).[90]
VI.