Introduction

The Constitution of Japan is the oldest unamended written constitution (in force) in the world.¹ It is also one of the shortest written constitutions.² It can be classi­fied as a typical example of the war-based constitution-making model: ‘total defeat and unconditional surrender followed by a transition to constitutional democracy imposed by the victors'.³ Japan inevitably accepted direct international/foreign input.

¹ Albert HY Chen, ‘The Achievement of Constitutionalism in Asia: Moving Beyond “Constitutions without Constitutionalism”' in Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, 2014) 18.

² Kenneth M McElwain and Chris Winkler, ‘What's Unique About the Japanese Constitution? A Comparative and Historical Analysis' (2015) 41(2) Journal of Japanese Studies 249.

³ See Michel Rosenfeld, ‘Constitutional Identity' in Michel Rosenfeld and Andras Sajo (eds), Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 756, 768; Tom Ginsburg, Zachary Elkins and James Melton, ‘Baghdad, Tokyo, Kabul: Constitution Making in Occupied States' (2007) 49 William & Mary Law Review 1139.

⁴ In 2010, Japan gave up second place to China and is now the third-largest economy in the world. successful so far.^[6] The longevity of the Constitution can be analysed from various perspectives and there is no simple answer for its longevity.^[7] This chapter tries to analyse it from a perspective of the international assistance of constitution-making, particularly by revisiting the process of constitution-making of the Constitution of Japan where the US army was heavily involved.

Immediately after World War II, making the Constitution would not have existed in the minds of ordinary Japanese people except for political elites and academics. Very few citizens would have thought that the Constitution of the Empire of Japan, the previous constitution, should be revised or a new one enacted immediately after the War. What was in their minds?^[8] How could a country whose land had been devastated by the War be restored? How could a country that had reached the point where people were starving to death be able to feed its people? Moreover, there was indeed strong sentiment, backed by real experience, that war is something they did not want. However, it is doubtful how many people have reflected on the horrors that Japan brought upon its neighbours during the War. Many ordinary citizens considered themselves victims of the War caused by the Government’s misguided policies.

Japan's post-war constitution, the Constitution of Japan, adopts ideas and values such as human rights, democracy, rule of law, and pacifism. Among new ideas and values, pacifism (Art 9) and equality between men and women (Art 24) would have been gems of the crown if certain conditions were met. They were welcomed by those who detested the ravages of war and the pre-war feudal family system. However, the origin of those ideas derived from a draft prepared by the US occupation army. Can a country that was isolated in the international community and which started the War against other countries accept the former opponent’s ideas and values? It is fair to say that the Constitution and particu­larly Art 9 have obtained the general support of the Japanese people since its enactment.^[9] However, it does not mean that there is no problem.

How far has the bill of rights in the Constitution been fully implemented? The LDP has set the amendment of the Constitution as its party policy since its establishment. Therefore, the LDP Government was not necessarily eager to implement the Constitution’s ideals and values. Once the occupation was over, the LDP made efforts to water down the previous policy installed by the Supreme Commander for Allied Powers (SCAP).^[10]

One of the typical examples is the issue of gender equality. Equality between men and women is an epoch-making achievement in the Constitution because Japanese women were legally discriminated and they had no right to vote before the War. Article 24 made it necessary to amend legislation. However, a severe gender gap exists in Japan. The recent statistics surprised Japan. According to the recent Global Gender Gap Report 2021, Japan is ranked 120th among 156 countries in the general ranking, 117th in the field of economic participation and opportunity and 147th in the field of political empowerment.^[11] Furthermore, another unwel­come trend is that the gender gap in the field of political empowerment has been slightly widened, although the Government set the goal for women to occupy 30 per cent of leadership positions in the public sphere.^[12] The discussion of issues of LGBTQI+ has just started among parliamentarians although an attempt to make a bill to protect LGBTQI failed because of the strong opposition inside the LDP.^[13] In other words, it can be emphasised that Article 24 of the Constitution which guarantees equality between men and women has not been implemented by the adoption of effective measures.

Taking into account the incessant changes in internal and international soci­ety, it is also necessary to examine whether the government system prescribed by the Constitution can cope with the contemporary demand such as the global pandemic and new international security concerns.^[14] Instead of amending the Constitution, the Government constantly change the interpretation of Article 9 to cope with the demand for national security.^[15]

If the content of the Constitution has not been implemented or the Government’s interpretation is unconstitutional, what measures can be taken under the present Constitution? In other words, does the Constitution fulfil its role of binding the Government? For example, the Supreme Court of Japan (SCJ) which was given the judicial review power by the Constitution has ruled only 11 statutes unconstitutional.

Regarding pacifism, the presence of the US forces in Japan and the existence of the Self-Defense Forces (SDF) have called into question the normative nature of Art 9 (Pacifism) of the Constitution.^[16] Moreover, the SCJ has, as yet, avoided deciding on the constitutionality of the US forces stationed in Japan and the SDF although there have been many cases in the courts.^[17] Without the constitutional amendment, the LDP Government has continued to change the interpretation of Art 9 and the people raise questions about the role of the Constitution. However, the debate on the Constitution has fallen into a rigid dichotomy between ‘consti­tutional reformers’ and ‘constitutional defenders’ and constructive discussion has not progressed.

With this problematic situation, a new perspective is needed. An interesting omission in the constitutional amendment debate is an evaluation from an inter­national perspective. For both sides, constitutional reformers or defenders, the benchmark is modern constitutionalism, ie, the ‘We the People’ moment or the French Revolution (protection of rights and separation of powers).^[18] However, it is pointed out that one of the important features of constitution-making in the twenty-first century (and probably the latter half of the twentieth century) is the involvement of the international community.^[19]

This chapter analyses the process of enactment of the Constitution of Japan, particularly emphasising a perspective of international assistance to the constitution-making process which is now internationally a common practice but which did not exist at the time of Japanese constitution-making.^[20] By doing so, it aims to provide new insights into the Japanese rigid dichotomous political situation.

First, we will address the reason why the Constitution of Japan was enacted. Next, the process of enacting the Constitution will be introduced. Then, we will clarify what kind of constitution was realised through this process. Furthermore, we will show how the Constitution was implemented. Finally, in conclusion, the above analysis shows that while what the occupying forces did can be appreciated from the perspective of supporting the enactment of the Constitution, the scarcity of public participation in the drafting process continues to be a problem. How to resolve this problem democratically will determine the future of the Constitution (and democracy) in Japan. The question is whether the Constitution remains symbolic, as it is now, or whether it will become a concrete binding entity on the governing body.

II.