Substance
A. Fundamental Principles of the Constitution: The Role of the Preamble
The Constitution itself does not clarify what the fundamental principles are. It does not specify provisions which cannot be changed although it is understood that some core principles cannot be amended.[58] However, a relatively lengthy Preamble reveals the essence (ideals and purposes) of the Constitution such as popular sovereignty, pacifism and international cooperation, all of which were in the SCAP Draft.
The Japanese Government also put them in its own draft without substantial changes. It is clear that all three address the problems of the previous government: the sovereignty of the Emperor, militarism and international isolation.It should be noted that the highly idealistic Preamble draws inspiration from other important international and constitutional documents such as the Gettysburg Address (1863), The Tehran Declaration (1943), and the Charter of the United Nations (1945). In contrast with the common preamble which often refers to the national prideful past, the only reference to the history is the war the Japanese Government started as something Japan should never repeat.[59]
B. Popular Sovereignty
The first paragraph of the Preamble declared popular sovereignty by proclaiming ‘that sovereign power resides with the people and do firmly establish this Constitution’. The following sentence emphasises that the Japanese Government is the Government of the people, by the people, for the people. This seems to come from the Gettysburg Address (18 63).[60] Popular sovereignty is one of the most important fundamental principles in the Constitution. In the drafting process, the status of the Emperor was the most important matter for the Japanese Government which wanted to protect the Emperor at any cost. On the other hand, the Potsdam Declaration demanded the democratisation of Japan.
Therefore, popular sovereignty with the emperor as ‘the symbol of the State and of the unity of the People’ was a compromise between the Japanese Government and the SCAP who wanted to manage the occupation as smoothly and effectively as possible. The Japanese Government was relieved to save the Emperor and the SCAP managed to pursue the goal of democratisation. This explains why the Constitution starts with the chapter on the Emperor and there is no independent chapter devoted to popular sovereignty. The present Constitution is the outcome of the amendment of the Constitution of the Empire of Japan (CEJ) by using the amendment clause in the CEJ. Therefore, the framework of the previous constitution is maintained. The first Chapter on the Emperor of the CEJ remained but its content was completely changed from the sacred and inviolable emperor to the emperor as the symbol, which does not have any political power. Popular sovereignty is indirectly expressed by stating that ‘The Emperor shall be the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power (emphasis added).Popular sovereignty is guaranteed by admitting universal suffrage (Art 15) and the Diet (Japanese legislature) which ‘shall be the highest organ of state power, and shall be the sole law-making organ of the State' (Art 41). The Diet consists of two Houses which ‘shall consist of elected members, representatives of all the people' (Art 43).
Whether there is a limit on the constitutional amendment was contested. If there is a limit, then the legitimacy of the amendment of the CEJ is in question because the amendment denies the sovereignty of the emperor which was the most fundamental core of the CEJ. Constitutional scholars explained this conundrum by arguing that the acceptance of the Potsdam Declaration means a legal revolution (August Revolution Theory) because the former requires Japan's democratisation.[61] Therefore, according to the theory, popular sovereignty was achieved by the legal revolution and the CEJ was invalid as far as it was not in compliance with popular sovereignty and the amendment clause of the CEJ was used for convenience.
C. Pacifism
The second paragraph of the Preamble emphasises the importance of peace after the first paragraph declared that the Japanese people ‘resolved that never again shall we be visited with the horrors of war through the action of government'. Even it ends with a sentence that ‘We recognize that all peoples of the world have the right to live in peace, free from fear and want' (emphasis added). It is obvious that ‘free from fear and want' reflects on President Roosevelt's Four Freedoms (State of the Union Address in 1941) and the Tehran Declaration (1943). The expression as ‘the right to live in peace' inspired the plaintiff who challenged the constitutionality of the SDF at the Court later.[62] The ideal of the pacifism was embodied by Art 9:
CHAPTER II RENUNCIATION OF WAR
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.
Moreover, Art 9 was inserted between the former Chapter I (the emperor) and Chapter II (rights and duties of the subject) in order to make it clear to international society that Japan shall take leadership to take an eternal peaceful pathway according to the SCAP's intention.[63] Therefore, Art 9 and the Preamble is the key provision to guarantee that Japan would not take military action again. However, under the Cold War regime, it was difficult for Japan to take the course the Constitution expected. Instead, Japan signed the security treaty with the US which enabled the US Army to stay in Japan and established the SDF.
The LDP's efforts to amend the Constitution have not been successful.[64] Even the LDP has not managed to initiate an official constitutional amendment process to amend the Constitution despite the new electoral system (combination of the first-past-the-post system and proportional representation system) which allows the LDP, with the support of other political parties who support a constitutional amendment, to achieve a two-thirds majority at both Houses, which is the condition for the Diet to initiate an amendment process (Art 96).
Instead, the Government changed the interpretations of Art 9 in order to legiti- matise the existence of the US army in Japan, the establishment of the SDF and the engagement of the SDF with the UN peace-keeping operations. Therefore, those interpretations have been judicially contested. However, the Supreme Court avoided deciding the constitutionality questions by relying on the political question doctrine or some technical issues such as standing.[65]In contrast to the period under the Meiji Constitution, Japan has not been directly involved in any wars since the enactment of the present constitution. It is too naive to say that it is entirely due to the present constitution. There have been many factors that have contributed to the avoidance of war. Moreover, the concept and nature of war itself has changed since World War II. Some politicians and academics argue that it is necessary to amend Art 9 in order to adjust to present international relations and make the SDF available for cooperative activities with the international community in general (such as Peace Keeping Forces operations of the UN) and the US Army in particular. On the other hand, other academics argue that the present situation (the ambiguous status of the SDF in the Constitution) works to restrict the activities of the SDF so that this amendment might encourage the wider usage of the SDF.
D. International Cooperation
The third paragraph of the Preamble is about the principle of international cooperation:
We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations (emphasis added).
There was an interesting discussion about the third paragraph in the American drafting committee.[66] The third paragraph derived from Hussey's amendment proposal to the draft, which Kades strongly criticised by arguing that each nation is the final arbiter of its own destiny and laws of political morality has nothing to do with sovereignty.
However, Hussey rebutted this by saying that the establishment of the United Nations has also made his arguments outdated and ridiculous. No state has the right to exercise sovereignty if the exercise of that sovereignty would violate universal political morality. Not only is this an interesting confrontation between idealism and realism, but it also reveals expectations towards the then newly established United Nations. In particular, there was a loose consensus on the denial of the absoluteness of state sovereignty, which was injected into the Japanese Constitution. Even Kades admitted the universality of political morality would be realised in the long run. The debate eventually settled on language nearly identical to the final SCAP Draft, with the suggestion of the Director of the GS, General Courtney Whitney, that the language would be softened. On the other hand, the Japanese side also considered that it was important to change the external impression of Japan, which had ignored international law. The Ministry of Foreign Affairs proposed to stipulate observance of international law in the Constitution. It was realised as Art 98.[67] Therefore, it was not only the SCAP but also the Japanese Government which was keen on the rule of international law. Unfortunately, the principle of international cooperation could not be developed because of the Cold War. The United Nations could not function as a peacemaker and the Japanese Government chose to conclude a security treaty with the US instead of ‘trusting in the justice and faith of the peace-loving people of the world' (the second paragraph of the Preamble). It was unfortunate that the Cold War did not allow Japan to develop this principle of international cooperation.E. Human Rights
The bill of rights (Chapter III) in the Constitution was the outcome of comparative research by the SCAP and Japanese scholars. It includes not only civil and political rights but also social and economic rights.
‘The right to life, liberty, and the pursuit of happiness' (Article 13) as a general clause on fundamental rights was inspired by the Independence Declaration of the US (1776). The due process and relatively detailed rights of personal freedoms address the previous abuse of police powers. It is also noteworthy to mention a Japanese initiative. A member of the House of Representatives, Yoshio Suzuki, strongly proposed to introduce social rights in the discussion of the draft at the CPIC and Article 25 was born. Moreover, the judicial review was introduced to strengthen the protection of rights and the Constitution.[68]F. Judicial Review
The SWNCC 228 did not give a policy concerning the judiciary. The general policy of the GS is to guarantee human rights by enlarging the judicial power and realising the independence of the judiciary.[69] On the other hand, some members expressed the danger of oligarchy by judges. The outcome is the Supreme Court and lower courts (ordinary courts) have the ‘power to determine the constitutionality of any law, order, regulation or official act' (Article 81). The problem of Article 81 is that its wording is so abstract that judges had to explore how far they could use the judicial power in each case. In the end, the Supreme Court has established a cautious court which only invalidated 11 legislations since it was established in 1947.[70] This attitude limited the potential of the bill of rights.
G. Government System
The general policy of the SWNCC concerning the government system was general and abstract: (1) A government responsible to an electorate based upon wide representative suffrage; (2) An executive branch of government deriving its authority from and responsible to the electorate or to a fully representative legislative body; (3) A legislative body, fully representative of the electorate, with full power to reduce, increase or reject any items in the budget or to suggest new items; (4) No budget shall become effective without the express approval of the legislative body.[71] Moreover, the three basic points stated by the SCAP did not mention the government system except for the emperor and budget. Therefore, as far as the government system was concerned, the SCAP Draft is relatively concise. The parliamentary cabinet system which is closer to the British model was maintained although the Prime Minister was given more power because the Prime Minister under the previous CEJ was too weak to maintain the Cabinet and control the military. The local government system was introduced to promote and maintain democracy. The SCAP accepted many changes proposed by the Japanese Government. For example, the unicameral system of the Diet in the SCAP Draft was replaced by the bicameral system. There are many other amendments: the superiority of the lower house; convoking the House of Councillors in an emergency when the House of Representatives is dissolved; the effect of a no-confidence resolution in the House of Representatives. Another feature of the Constitution is that many things are stipulated in the abstract words and the embodiment of the abstract provisions is supposed to be by law. There are many legislations such as the Diet Act, the Cabinet Act, and the Court Act to embody the content of the Constitution. This explains why the Constitution has not been amended to some degree: reforms of the government system can be done by legislation.
V.