Process
A. The SCAP Draft
The SCAP originally thought that it was the Japanese Government that should prepare a new constitution.[32] The Japanese Government also understood the necessity of amending the constitution to be compatible with the Potsdam Declaration (1945) and the CPIC submitted the draft to the Cabinet meeting where they started to discuss the content.
The problem is the substance of the Matsumoto Draft which was leaked by the newspaper. Seeing that the content maintained the sovereignty of the emperor and did not fulfil the objectives outlined in the Potsdam Declaration, General MacArthur realised it would take too long if he waited until the Japanese Government arrived at a satisfactory result.[33] He ordered the Government Section (GS) of the US army to draft a new constitution by presenting MacArthur’s Three Principles: the emperor as the head of state (constitutional monarchy); the abolition of war; and the abolition of the feudal system.[34] Their work started on 4 February 1946 and lasted until 10 February 1946.
The principal members among the 22 people in total included Charles L Kades (40 years old), Alfred R Hussey (44 years old) and Milo E Rowell (42 years old), who were all educated at law schools and practising lawyers.[35] The drafting team consisted of a Steering Committee and eight committees: Legislative Committee; Executive Committee; Civil Rights Committee; Judiciary Committee; Local Government Committee; Finance Committee; Committee on the Emperor and Enabling Provisions; and the Preamble.[36]
i. Foreign Experts on Japan and Collecting Foreign Constitutions
The American drafting team was not necessarily a foreign invader which forces an unsuitable constitution without the understanding of Japanese society.[37] There were some experts on Japan including Cyrus H Peake, Harry Emerson Wildes, and Beate Sirota Gordon, who were members of the Civil Rights Committee and drafted a chapter on human rights.[38]
One of the most important features of the SCAP Draft is human rights.
Members of the Civil Rights Committee had no legal background. Instead, they had experiences in travelling and living in foreign countries. Two of them (Sirota and Wildes) had ample knowledge of Japan and experiences of living in Japan before World War II. ‘Probably this variety of training and experience better qualified them for writing the “rights of human life” that transcended race and nation, than jurists equipped only with technical legal training’.[39] Therefore, it is not a surprise that their draft guaranteed equality under the law for natural persons and included a specific clause to protect foreigners, including a right to be assisted by diplomatic representatives and interpreters as follows:All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic, educational or domestic relations on account of race, creed, sex, social status, caste or national origin.
Aliens shall be entitled to the equal protection of the law. When charged with any offense they are entitled to the assistance of their diplomatic representative and of interpreters of their own choosing.[40]
Moreover, without Sirota, Article 24 would not have been born. Sirota was born in Vienna in 1923. Her father was a famous Jewish pianist born in Russia (now Ukraine) and was well-established in Vienna. Her father was invited for the post of a music professor at a music university in Tokyo when she was just five years old. The situation in Europe at that time persuaded him to take the offer. Sirota spent nearly 10 years in Tokyo and then went to study in the United States. She was fluent in five languages, including Japanese. When World War II broke out, she lost contact with her parents. When the War was over, she managed to return to Tokyo by getting a job as a translator with the US army. She was assigned to the Government Section.
After MacArthur’s order, she became a member of the Civil Rights Committee.
A provision on women’s rights was assigned to her because she was a woman. How did she approach her task despite her lack of legal education? Her previous career as a researcher at Time magazine in the United States inspired her to collect world constitutions. She and her colleagues then searched for constitutions in several libraries in Tokyo and obtained various constitutional documents, including the Declaration of Independence, the American Constitution, the Magna Carta, the Weimar Constitution, the French Constitution, the Scandinavian Constitutions and the Soviet Constitution. Thereafter, she started to make notes on legal articles that might be useful for writing human rights clauses. She was particularly attracted by the social rights in the Soviet Constitution and the Weimar Constitution, where she found attractive resources for her clause on women's rights. Conversely, she was disappointed by the US Constitution, which scarcely mentioned women's rights (only a plain clause on female suffrage [Amendment 19]). She then began to list the specific problems and difficulties faced by Japanese women: young women who were forced to marry, women who were forced to divorce owing to infertility, married women who had no rights to property, and women who were marginalised in society and so on. Based on what she had learned through conversations or her observations of Japanese society when she was brought up in Tokyo, she understood the importance of these issues. She then categorised the problems connected with human rights by consulting existing constitutions. Therefore, her draft became longer and more specific and included specific social welfare services, such as free education, medical services and the protection of mothers with babies. One good example was the rights of children born out of wedlock.[41] She was determined to include a passage to abolish discrimination against children born out of wedlock because she knew that the discrimination was severe and directed not only at children but also the women who gave birth outside marital relationships. However, Colonel Kades ordered Sirota to curtail this provision because the content was too detailed for the Constitution. In the end, the protection clause for children born out of wedlock was deleted and her draft was shortened to one-third of its original length.[42] The outcome is Art 24:Marriage shall be based only on the mutual consent of both sexes, and it shall be maintained through cooperation with the equal rights of husband and wife as a basis. With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.
Sirota later regretted that she obeyed Kades when she learned that even the legal discrimination towards children born out of wedlock (eg, unequal treatment concerning the legal allocation of an inheritance) remained in the statute book (it was repealed in 2013). Age and gender mattered too even in the American context (Shirota was 22 years old and the only woman in the meeting room). This is a good example of how a non-jurist with a critical mind and a sense of justice can offer a better prescription for resolving a legal problem. Moreover, she had not copied a foreign constitution. She used foreign constitutions as a sample of rights and also as a specimen of how to write a legal article. She, however, began her process by thinking about the real problems of Japanese women and what was preventing them from having a better life, which she had known from her experiences in Japan during her childhood.
ii. Plural Stakeholders
The SCAP was not a ‘sovereign’ power in the constitution-making process. Japan was occupied by the US Army while Germany and Austria were occupied by the armies of allied countries. However, General MacArthur as the SCAP was under the authority of the Far Eastern Commission (FEC) which was established in December 1945 after the conference of the foreign ministers of Allied countries.[43] Moreover, General MacArthur as the Commander in Chief, Far East (CINCFE) was under the authority of the US Government.
Therefore, the administration of the SCAP was under the scrutiny of the other two important stakeholders. The SCAP’s judgment to make a constitution as soon as possible was opposed by the US Government and the FEC. The FEC asked the SCAP to postpone the general election but the SCAP refused to do so.[44] On 13 May 1946, the FEC informed the SCAP of the principles to be fulfilled: adequate tie and opportunity should be allowed for the full discussion and consideration of the terms of the new Constitution; complete legal continuity from the Constitution of 1889 to the new Constitution should be assured; the new Constitution should be adopted in such a manner as to demonstrate that it affirmatively expresses the free will of the Japanese people.[45] The SCAP had expected to have the Constitution promulgated in June 1946 and taken into effect at the end of the year 1946 but compromised to take more time for the deliberation of the draft at the Imperial Diet as the SCAP learned that the US Department of State was concerned with the outcome of the short process. Even MacArthur made an announcement to the people which was similar to the FEC’s principles on 2 June 1946. He emphasised the importance of the free will of the Japanese people and mentioned thatFor over eight months the revision of the constitution has been the paramount political consideration under discussion by all parties and all classes of the Japanese people. Numerous drafts have been prepared by various political parties, educational groups, publicists, and individuals of all shades of thought and opinion. The press and radio and every other medium of information have been employed to an extent seldom witnessed in any national forum.[46]
iii. Public Participation
The Government had no intention of listening to the people and held a public event to discuss the content of a draft but considered their task as a covert mission with some constitutional specialists.
This comes as no surprise as it was exactly how the Meiji Government drafted the previous constitution, the Constitution of the Empire of Japan.[47]On the contrary, the General Headquarters (GHQ) was interested in civilian drafts. There were approximately 10 drafts or proposals by private groups.[48] Particularly, a draft prepared by the Constitutional Research Association (CRA, Kenpo Kenkyu-kai) managed by a constitutional scholar, Yasuzo Suzuki (1904-1983), is famous for its influence on the American drafting team.[49] The SCAP collected civilian drafts including the CRA Draft and translated them into English. However, this was one-way communication. The SCAP preferred early completion rather than an establishment of a constitutional assembly by the popular election.[50]
B. ‘Japanisation’ of the SCAP Draft
MacArthur's draft was handed over to Foreign Minister Yoshida and Minister Matsumoto on 13 February 1946 and the Japanese Government wrote its draft on the basis of the American draft.[51] On 3 March, the Japanese draft was thoroughly examined by the GS. On 17 April, the Government publicised the final draft and submitted it to the House of Representatives (HR). The Subcommittee for Revision of the Imperial Constitution (SRIC) was established in the HR of the 90th Imperial Diet to consider amendments to the government draft of the Constitution of the Empire of Japan. The SRIC deliberated the draft 13 times from 25 July to 20 August. On 24 August, the HR passed the draft. On 6 October, the House of Lords passed it. On 7 October the draft passed the Imperial Diet. On 3 November, the Constitution of Japan was promulgated and on 3 May 1947, it came into effect.
It should be emphasised that members of the HR, as the lower house of the Diet, for the first time, were elected by the democratic equal election, including female voters and candidates. In that sense, the Diet democratically worked as a constitutional assembly.[52] Therefore, the argument that the Constitution was imposed is too simple.
The Japanese draft was not a simple translation of the American draft. The Japanese Legislation Bureau changed the American one into a Japanese draft in a way that the content became more convenient for the Japanese Government as much as possible (Japanisation). It can be safely said that the essential goals of the American draft such as popular sovereignty and pacifism were intact.[53] However, many provisions of the Constitution give broad discretion to the Diet. For example, Art 10 of the Constitution in Chapter III (Rights and Duties of the People) stipulates that ‘The conditions necessary for being a Japanese national shall be determined by law.' Therefore, the Government can freely decide the extent of Japanese citizenship by legislation.
The deletion of the protection of foreigners, which the American draft guaranteed, was one of the results of Japanisation.[54] Article 10 appears to be a harmless technical clause, which was approved by Japanese parliamentarians without any opposition. The SCAP also approved it after considering it as a mere technical clause because they did not know that ‘the people' and ‘Japanese national' were expressed by the same words in Japanese as (Nihon kokumin). The
Nationality Act was enacted to stipulate these conditions.[55] It means that the term ‘the people' used in the Constitution refers to the people who have Japanese nationality granted under the Nationality Act. This insertion is important in answering who has the right to vote and who has the right to enter Japan.
Finally, progressive attempts to protect the constitutional rights of foreigners have been eliminated. The Constitution itself does not have any clause to protect their rights. The drafting process reveals the attitudes of the two groups involved therein. The Japanese Government was keen to delete such protection because of the difficult problem surrounding the existence of the Korean people who had lived in Japan and been treated as Japanese subjects when Japan colonised Korea. They lost Japanese citizenship after Japan signed the Peace Treaty in 1951 and they became foreigners. This contrasts with other examples of contemporary constitutions, such as those of Italy and Germany (Art 10 of the Constitution of the Italian Republic and Art 16a of the Basic Law for the Federal Republic of Germany), which provide for the right of asylum and/or the guaranteed legal status of foreigners. Meanwhile, the SCAP turned a blind eye to the change during the negotiations as it was not as enthusiastic about the protection of foreigners as it was about the realisation of popular sovereignty. The following is the present text of the Constitution which has not been amended since its promulgation. It should be emphasised that in the official Japanese text, ‘the people' refers to the Japanese people.
CHAPTER III. RIGHTS AND DUTIES OF THE PEOPLE
Article 10. The conditions necessary for being a Japanese national shall be determined by law.
Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic, or social relations because of race, creed, sex, social status, or family origin (emphasis added).[56] [57]
Another example of the change made by the Japanese side is the Ashida amendment. When the government draft was discussed in the Diet, important amendments were added. The most famous and controversial one is the Ashida amendment to Art 9.56 The original government draft of Art 9 is as follows:
War, as a sovereign right of the nation, and the threat or use of force, is forever renounced as a means of settling disputes with other nations.
The maintenance of land, sea, and the air forces, as well as war potential, will never be authorized/ The right of belligerency of the state will not be recognized.
However, the subcommittee (the head of the subcommittee was Mr Ashida) proposed the following amendment:
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation, or the threat or use of force, as a means of settling disputes with other nations.
In order to achieve the purpose of the preceding paragraph, land, sea, and air forces as well as other war potential, will never be maintained. The rights of belligerency of the state will not be recognized (emphasis added).
The amendment was finalised as follows:
Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized (emphasis added).
The emphasised part became important later when the interpretation of Art 9 was in question. Mr Ashida argued that Japan cannot maintain forces in order to accomplish the aim of the preceding paragraph (aggressive war) but it can maintain forces for self-defence.
IV.