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POLITICAL SCIENCE RESEARCH PAPERSALIENT FEATURES OF JAPANESE CONSTITUTION AN ANANLYSISPROJECT SUBMITTED TO:DR. B. K. MAHAKUL PROJECT SUBMITTED BY:NEHA PANCHPALSemester IVRoll No. 101`/BSubmitted on: 07.04.15

Hidayatullah National Law University

CERTIFICATE

This is to certify that the project entitled Salient Features of Japanese Constitution:;An Analysis submitted by Neha Panchpal is a record of the candidates own work carried out by her under my supervision. The matter embodied in this project is original and has not been submitted for the award of any other degree.

DATE: / /2015 Dr. B. K. Mahakul Assistant Professor

ACKNOWLEDGEMENT

I would specially like to thank my teacher, mentor Dr. B. K. Mahakul without whose constant support and guidance this project would havebeen a distant reality.This work is an outcome of an unparalleled infrastructural support that I have received from Hidayatullah National Law University, Raipur.

It would never have been possible to complete this study without an untiring support from my family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and well-wishers.

INTRODUCTIONIf men were angles no government would be necessary. If angels were to govern men neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men the great difficulty lies in this first you must enable the government to control the governed; and in the next place oblige it to control itself.James Madison defines and clearly states the importance of constitution for any country. A constitution is the highest law of a country and reflects the fundamental principles on which a system of government and administration of country is based.A constitution is a set of fundamental principles or established precedents according to which a state or other organisation is governed. These rules together make up what an entity is.[footnoteRef:1]Japan enters the twenty-first century with the worlds oldest unrevised constitution (Kemp). The words of Japans supreme law remain as when first drafted, despite over fifty years of change through political interpretation.[footnoteRef:2]The circumstances in which it was drawn up and adopted are now plain. References in the Preamble to the We, the Japanese people as the progenitors notwithstanding, its key principles were actually dictates from the office of the Supreme Commander for the Allied Powers (SCAP), General Douglas MacArthurs allied high command, presented as a virtual ultimatum to the Government of Japan just half a year after it had surrendered to the Allies in August 1945.[footnoteRef:3] In the early months of 1946, Japan was a defeated, exhausted, occupied country, still at that time without any representative institutions. [1: https://visionias.files.wordpress.com/.../comparison-of-indian-constitu-tri] [2: Among others, the German Basic Law has been revised forty-six times, and the Norwegian and Swiss constitutions 139 and 132 times respectively. (Nishi Osamu, Nihonkoku kemp o kangaeru, Tokyo, Bunshun Shinsho, 1999, p. 17.)] [3: For authoritative studies of the process of drafting and adoption: Koseki Shoichi, Japanizing the Constitution, Japan Quarterly, vol. 35, no. 3, July-September 1988, pp. 23440, and Koseki Shichi, Shin kemp no tanj, Tokyo, Ch Kronsha, 1989, edited and translated by Ray Moore as The Birth of Japans Postwar Constitution, Boulder, Colorado, Westview, 1997; and John W.Dower, Embracing Defeat. Japan in the Wake of World War II, New York, W.W.Norton, 1999]

Constitutions are statements of the raison dtre of states and nations. Inevitably, they reflect the time of their conception and, so long as no absolute statement of the ideal mode of government is forthcoming, constitutions are bound to change. [footnoteRef:4] [4: ir.nmu.org.ua/bitstream/handle/123456789/128896/2abc3ec1ad447c1f8fe5...]

OVERVIEW OF LITERATUREShiginori Matsui The Japansese Constittution; A Contextual AnalysisThis book is designed to explain the outline of Japan's Constitution, together with a number of its unique characteristics and to offer an historical background and context which help explain its significance. Major topics covered include the constitutional history of Japan, fundamental principles of the Constitution, the people and the Emperor, the Diet and legislative power, Cabinet and executive power, and the Judiciary and judicial power. Also discussed is the protection of fundamental human rights, individual rights - including freedom of expression,economic freedoms, and social rights - pacifism and national defence, and the constitutional amendment and reform. Although the Japanese Constitution was enacted under the strong influence of the United States Constitution, many of its features are very different. For instance the existence of an Emperor, the long dominance of a conservative party over the Government, the relatively strong power of government bureaucrats, the absence of a leadership role in the Prime Minister, the small role the judiciary play in solving constitutional disputes and the struggle over national defence. Written in an accessible style and comprehensive in content, the reader will find this account of the constitutional law of Japan both unique and stimulating.Japan's Contested Constitution: Documents and Analysis; Gland D.Hook and Gavan MaccormakFrom the beginning of the year 2000, Constitutional Research Councils have been set up in both Houses of the National Diet and the structural and symbolic questions of national identity and purpose are merging in debate on constitutional reform. The Constitution defines the nature of the Japanese polity and constrains Japan's military role in the world. The opening of this debate should play a crucial role in shaping the nature of the realignment of domestic political forces and the alternative international roles Japan may pursue in the new era. This book makes available in English the four key proposals on constitutional reform already in the public domain in Japan. These proposals form the backdrop against which the constitutional debate will evolve. Hook and McCormack place these documents in their historical and contemporary context, providing an analysis of their meaning in the development of post-war thinking on the Constitution. They introduce the Constitution and explain the government's established interpretation of the key clauses subject to controversy, going on to provide a thorough analysis of the differing interpretations of the Clauses.[footnoteRef:5] [5: https://www.goodreads.com/book/show/4051236-japan-s-contested-constitution]

We the Japanese People: World War II and the Origins of the Japanese Constitution ;Dale Hellegers's remarkable and thorough study of the writing of Japan's Constitution has taken on a new relevance now that members of the Bush administration have publicly stated that America's postWorld War II occupation of Japan can serve as a model for American occupation and democratization of Iraq.Scholars, students, and foreign policymakers would be well advised to read We the Japanese People: World War II and the Origins of the Japanese Constitution, as its subject matter-the transplantation of American ideals of democracy to Japan after World War II-is too easily co-opted in contemporary sound bites. Hellengers's book elucidates the extremely difficult processes that led to the drafting of Japan's Constitution as well as the intellectual and cultural debates surrounding these issues. Hellengers is an independent scholar who has lectured on the drafting of the Japanese Constitution at Harvard and Columbia law schools.

OBJECTIVES OF RESEARCH1. What is the Historical development of Japanese Constitution?

2. What are the salient features of Japanese Constitution?

3. What is the critical analysis of Japanese Constitution?

METHODOLOGYThis is, at the face of it, a critical essay. It is a descriptive and analytical study of Salient Features of Japanese Constitution; An Analysis. Various electronic instruments and tools of interpretation have been used to properly explain this topic. Footnotes have been provided wherever necessary.

TABLE OF CONTENTS CERTIFICATE----------------------------------------------------------------------i

ACKNOWLEDGEMENT----------------------------------------------------------ii INTRODUCTION-------------------------------------------------------------------iiiOVERVIEW OF LITERATUTRE------------------------------------------------iv OBJECTIVES OF RESEARCH---------------------------------------------------vi METHODOLOGY------------------------------------------------------------------vii TABLE OF CONTENTS ---------------------------------------------------------viii CHAPTERIZATION--------------------------------------------------------------1-14Ch 1- Meaning of the Constitution Ch 2- Origin of the Japanese ConstitutionCh 3- Salient Features of the Japanese Constitution CRITICAL ANALYSIS-----------------------------------------------------------15

CONCLUSION---------------------------------------------------------------------16

REFRERENCES------------------------------------------------------------------------ix

THE MEANING OF THE CONSTITUTION The term constitution in Japan is defined as the fundamental law of the state.[footnoteRef:6]In this sense it is not unlike the constitutions of many other states, most of which have a single document called The Constitution. Japan enacted its first modern constitution, the Meiji Constitution, in 1889. The current Constitution was enacted in 1946 as an amendment to this Constitution. Japan therefore has a single document called the Constitution. The concept of a constitution was developed in Europe and the United States. Even though the original ideas were developed in the United Kingdom, it was the United States that enacted the first document referred to as a constitution after independence, the Constitution of the United States, in 1787. France enacted its first constitution, the 1791 Constitution, after the French Revolution. These constitutions attempted to establish governments based on the power of the people, while at the same time restricting the power of governments. They thus provided for the structure of government and a Bill of Rights. They were meant to be the supreme law of the land. Many other countries followed in their footsteps and enacted constitutions modelled after them. These constitutions are often called modern constitutions. The Japanese Constitution apparently followed this tradition. The Constitution has made clear that it is the supreme law of the land, it has established that the government is empowered by it and it has declared that these powers are derived from the people. It also sets limits on the power of the government by protecting a Bill of Rights.[footnoteRef:7] [6: Ashibe, 3; Sato, 3.] [7: http://www.hartpub.co.uk/pdf/samples/9781841137926sample.pdf]

ORIGIN OF THE JAPANESE CONSTITUTION Before the present constitution was promulgated in November 1946 and then came into force in May 1947, Japan was governed under the Imperial Constitution of 1889, often known as the Meiji Constitution after the era (1868 1912) of its birth. Sovereignty then was plainly in the hands of the Emperor, who PARCHMENT AND POLITICS 3 claimed to rule by divine right. He held supreme power, while all popular rights were circumscribed and the duty of people to serve and obey him was absolute, despite periods when in practice a government responsible to a Diet elected on a limited franchise managed most of the affairs of state. In sharp contrast, the postwar constitution of 1947 proclaimed the sovereignty of the people, defined a set of unequivocal rights, established formal separation of powers and also a strict separation of state and religion, and declared pacifism to be a central policy of the Japanese state. The constitution was born of a weeks intensive brainstorming by a specially appointed panel at the direction of General MacArthur.[footnoteRef:8] Not one Japanese was on this committee. The guidelines under which it operated were clear: the Emperor must be retainedhe had been assigned an especially important role in United States planning and therefore was to be given immunity from prosecution as a war criminal; Japan must not be allowed to possess any armed forces; and feudalism had to be abolished.[footnoteRef:9]Once drafted, the document was handed to the Japanese Cabinet of Prime Minister Shidehara Kijr and published in March 1946. Paradoxically for a document which was to establish democracy in Japan, it came accompanied by a special Rescript from the Emperor ordering change, commanding that the constitution of our empire be revised drastically upon the basis of the general will of the people and the principle of respect for fundamental human rights. Significantly, the Meiji Constitution was therefore not rejected, but revised. The process was characterize[footnoteRef:10]d by continuity rather than rupture, something that would have been inconceivable in post-war Germany or Italy. The responsibility for passing the Constitution Bill into legislation was assumed by Prime Minister Shidehara in the unreformed wartime (militarist) Diet. The bill was subsequently in some respects revised, and then, after the first post-war, that is, democratic, elections in April 1946, adopted in the Diet in June. Certain territories remained outside the purview of the constitution, however, most notably Okinawa, which was only returned to Japanese administration in 1972. Because of the special problems to which this has given rise, Okinawa is analyzed separately.[footnoteRef:11] [8: A Gordon (ed), Postwar Japan as History (Berkeley, University of California Press, 1993)] [9: Koseki, ibid., 1997, p. 79.] [10: Dower, ibid., p. 384] [11: Glen D.Hook and Gavan Maccormak,Japans Contested Constitution Documents and Analysis,Routlage,2001,3-7]

SALIENT FEATURES OF THE JAPANESE CONSTITUTIONWe the Japanese Constitution do proclaim that sovereign power resides with the people -PreambleThe Meiji Constitution remained in force from November 1890 to May 1947.On May 13,1947 the Shova Constitution came into force. This constitution as mentioned above ,was prepared by the headquarters of General MacArthur and so it was a constitution forced on the people of Japan by MacArthur. [footnoteRef:12] [12: Vishnu Bhagwan and Vidya Bhushan,World Constittuions A comparative Study]

The following are the main features of the new Japanese Constitution.Written ConstitutionThe Shova Constitution has been termed as the constitution of Japan whereas the Meiji Constitution was named as the constitution of the empire of Japan. Moreover, the terms empire and imperial are used less frequently than in the old constitution. The Shova Constitution consists of 11 Chapters and 103 Articles. This Constitution is longer by at least one third than the old one. The Constitution is not basically of Japanese origin but is essentially of the western origin. The new constitution has derived from the American, British and international principles whereas the old constitution was inspired by the Prussian and German Constitutions. Sovereignty of the peopleThe first fundamental principle of the Japanese Constitution is the popular sovereignty principle. The first paragraph of the preamble of the Japanese Constitution declares that [w]e, the Japanese people, acting through our duly elected representatives in the National Diet . . . do proclaim that sovereign power resides with the people and do firmly establish this Constitution. Therefore, it is abundantly clear that it is the people who have sovereign power in Japan.Rigid ConstitutionThe Constitution of Japan is rigid, and the procedure to amend the constitution is tough.The constitution of Japan prescribes the procedure to amend the constitution and it is different from that of an ordinary law. Chapter 96, describes the procedure of amendment. It provides that the amendment to the constitution can be initiated by the diet, through a concurring vote of two-thirds or more of all the members of each house. Therefore, they shall be submitted to the people for ratification. Under the Meiji Constitution the power of initiating the amendment resided in the emperor. But now the Diet proposes the amendment and the people to ratify it.[footnoteRef:13] [13: http://www.booktopia.com.au/constitutions-of-the-world-robert-l-maddex/prod9780415863131.html]

Renunciation of WarOne of the salient features of the Constitution is the renunciation of war and prohibition of the maintenance of military forces. It is the pacifism principle.It is generally believed that a treaty has superior authority over a statute as domestic law. The international community had struggled for a long time in the attempt to prohibit war and secure peace. However, before the Japanese Constitution was proclaimed, most attempts were aimed at deterring countries from invading others.[footnoteRef:14] No attempt was ever made to prohibit war itself, regardless of its possible justifications. The Japanese Constitution was therefore a bold attempt in this regard, since it could be interpreted as prohibiting war and the maintenance of military forces, even for the purposes of self-defense. Interpreted this way, the so-called pacifism clause of the Japanese Constitution may have made a highly significant contribution to constitutionalism. Despite this clause, the government established the National police Reserve, and ultimately the SDF. The government also concluded the Japan-United states Mutual security Treaty, allowing American military forces to be stationed in Japan after the end of the occupation. As a result of these decisions, Japan has, in reality, maintained one of the strongest military forces in the world. [14: https://archive.org/details/selectconstituti033361mbp]

Limited MonarchyThe institution of Emperor is based on old traditions. Under the old constitution the emperor was a source of all authority but under the new constitution he is the symbol of the state and the unity of the people. The Sovereignty resides with the people. The Emperor is merely a constitutional head. All the acts of the Emperor are to be performed on behalf of the people and with the advice and approval of the cabinet .All the imperial property is the property of the state, with all the expenses of the household to be met from all the annual Diet appropriations. The Emperor is no longer sacred but is a trustee of the people. Now the sovereignty of the emperor has been abolished. He performs his acts according to the parliamentary conventions. Like his counterpart in England he only reigns and does not rule. Bicameral SystemThe Diet is the highest law making organ of the state. It has two chambers. The upper chamber is called the House of Councilors. The lower is called the House of Representatives. The House of Councillors in August 2013 consisted of 242 members who are elected for 6 years; one half of whom retire after every 3 years. There are 480 members in the HOR, as per June 2013 elections, who are elcted for 4 years. The money bills cannot be introduced in the house of Councilors , but it can make amendments to such bills or reject them. In case of a deadlock between two houses if the HOR pass the bill by a two-thirds majority for the second time, it will become an act. Thus,in legislative matters the HOR enjoys primacy. [footnoteRef:15] [15: Encyclopedia of World Constitutions, 3,Gerhard Robbers,1 edition (November 1, 2006]

End of DualismBefore the implementation of the new constitution the supreme war council had brought about dualism in the operation of the executive branch. The supreme wear council composed of the armed forces who were not subordinate to any civil authority . They were responsible only to the Emperor. The Emperor had to take advice from both the cabinet and the supreme war council in case the advice of the cabinet differed from the advice of the war council , [footnoteRef:16]the Emperor accepted the advice of the war council. The war council was not the creation of the constitution. It wa san extra constitution growth. The war constitution had overshadowed the cabinet and this has led to the growth of military control over government. [16: Tetsuya Kataoka, The Price of a Constitution: The Origin of Japans Postwar Politics (New York, Crane Russak, 1991]

Under the new constitution, this dualism has been abolished. The military is now under the civil government and there is no possibility in future the militarists will capture the political power. Article 60 expressly states that the PM and the other officers dhall be civil officers. There is no provision in the constitution for the exercise of the military power outside the cabinet.[footnoteRef:17] [17: Tetsuya Kataoka, The Price of a Constitution: The Origin of Japans Postwar Politics (New York, Crane Russak, 1991).]

Local AutonomyThe constitution introduces the principle of local autonomy , Ar 93 provides that the local public entities shall establish assemblies as their deliberative organs and that the chied executive officers of all local public entities, the members of their assemblies and such other officials as may be determined by law shall be elected by direct popular vote within their several communities . The local autonomy act,1947 provides for the exercise of initiative and recall by the voters of local entities. The prefactures and city ,town and village municipality have been grated extensive power of local government. Protection of Fundamental Human RightsThe Japanese Constitution also protects the rights of individuals as fundamental human rights, as set out in Chapter III: Rights and Duties of the people. The fundamental human rights guaranteed by the Constitution are generally construed as rights inherent in all human beings, as rights accorded to all human beings by the law of nature. Thus, according to the prevailing interpretation, they are not first granted by the Constitution.[footnoteRef:18] The Constitution merely affirms the existence of these rights. This is a radical departure from the Meiji Constitution, under which rights of individuals were merely granted by the benevolent grace of the emperor to his subjects. [footnoteRef:19]Moreover, constitutional protection of individual rights under the Meiji Constitution was limited only within the confines of statutes. Therefore, if the Diet and the emperor enacted statutes to restrict individual rights, no constitutional violation claim was possible. On the other hand, under the Japanese Constitution, these rights are constitutionally protected since the Constitution is the supreme law of the land, the Diet cannot enact a statute that violates the Constitution. [18: John M.Maki, The Constitution of Japan: Pacifism, Popular Sovereignty, and Fundamental Human Rights, in Luney and Takahashi (eds), op. cit., pp. 3956, at pp. 501] [19: Ashibe, 10]

Therefore, even though the Diet can still pass legislation that restricts individual rights, such restrictions cannot be unreasonable, otherwise the legislation must be viewed as invalid. The Constitution vests the power of judicial review in the judiciary to determine whether individual rights are unjustifiably infringed (article 81).[footnoteRef:20] [20: Constitution of Japan]

Central Government and Local Autonomy Japan is not a federal state. The Japanese government is a centralised government. The Constitution guarantees local autonomy and provides for local government. The Constitution provides, in Chapter VIII: Local self-Government that regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy (article 92). Local public entities shall establish assemblies as their deliberative organs, in accordance with law. The chief executive officers of all local public entities, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities (article 93). according to article 94, ocal public entities shall have the right to manage their property, affairs and administration and to enact their own regulations within law. a special law, applicable only to one local public entity, cannot be enacted by the Diet without the consent of the majority of the voters of the local public entity concerned, obtained in accordance with law (article 95). There are 47 prefectures and some 1720 cities, towns and villages in Japan and each prefecture as well as municipal government is granted the power of local autonomy under the Local Government act.[footnoteRef:21] The power of local government is seriously limited, however, and its power to tax is also seriously limited. Despite the attempt to decentralise by the Decentralization act and to promote further decentralization through the Decentralization Reform promotion act, the fact still remains that many of the tasks of the local government are the tasks of the central government, and local governments are performing these tasks under the supervision of the central government. With a total population of more than 127 million, Japan is one of the countries that maintains highly centralised government. [21: T McNelly, The Origins of Japans Democratic Constitution (Lanham, University press of america, 2000).]

Adult SuffrageThe new constitution of Japan provide for adult suffrsge. The Meiji Constitution did not make a provision for it. The Meiji Constitution did not make a provision for it. Before the war period,suffrage was limited to men of twenty years of age or above provided they paid atleast 10 yen annually in direct taxes.[footnoteRef:22] The new constitution removes all such conditions and all men and women of the age of twenty years or above enjoy the right to vote. There is no property qualification. Now women in Japan enjoy equal rights. [22: DM Hellegers, We the Japanese People: World War II and the Origins of the Japanese Constitution (Stanford, Stanford University Press, 2001)]

CRITICAL ANALYSISOver the past two decades, American and Japanese historians and political scientist have re-examined the birth of Japans 1947 Constitution. Looking beyond the initial drafting convention of February 1946 and taking advantage of documents that were classified until the 1970s, researchers have uncovered a story of democracy building in Japan that involved intricate debate and collaboration within and across national lines. Their research has brought into focus diverse Japanese as well as American roles in the constitution-making process, integrating Japanese chapters into what had been an American-centered story.

Japanese InvolvementCurrent research reinforces the narrative that Japans postwar leaders resisted changes to the Meiji Constitution. However, such scholars as John Dower argue that focusing on the role of Japans political leaders obscures the supportive role played by common Japanese people. While Japanese government response to SCAPs call for constitutional revision did stall, Japanese people responded to the opportunity. Between late 1945 and spring 1946, SCAP received 12 proposals for constitutional revisions from outside the Japanese government. Proposals came from liberal and conservative sources, including the Communist, Liberal, Progressive, and Socialist parties, the grassroots Constitutional Research Association, and individuals. Suggestions included the abolition of the emperor; retention of the emperor with limits on authority or exclusively symbolic duties; economic rights; gender equity; and the right to education. A number of these popularly generated suggestions correlated with SCAP interests and with provisions SCAP ultimately included in its own draft.Not Simply an American ReplicaAmerican writers from SCAPs government section, charged by MacArthur with writing a draft constitution, took note of suggestions for the document contributed by Japanese people and groups. They also chose not to limit themselves to creating an American replica for Japan. They looked within but also beyond the U.S. Constitution. Many on the American writing committee embraced the expansive human rights of the New Deal.[footnoteRef:23] These ideals were not reflected in the U.S. Constitution, nor necessarily embraced by conservatives within American occupation personnel. Beate Sirota Gordon, a young and idealistic member of the committee, has recorded her search through Japanese libraries for sample constitutions from other nations that might provide models for a progressive Japanese document. In its original form, Gordons human rights section for the Japanese constitution articulated rights far more progressive than anything in the U.S. Constitution. In the constitutions final version, articles on womens rights significantly surpassed U.S. guarantees. Other features in the American draft clearly reflected compromise with Japanese tradition. Notable, of course, was the maintenance of the emperor. While the 1947 Constitution demotes the emperor from his earlier position as sacred and inviolable, it maintains a hereditary throne as a symbol of the state, making the Japanese governmental system comparable to the British.[footnoteRef:24] [23: Dower, John.Embracing Defeat: Japan in the Wake of World War II.New York: Norton, 1998.] [24: EO Reischauer and MB Jansen, The Japanese Today: Change and Continuity enlarged edn (Cambridge, Belknap Press, 1995)]

The Adoption ProcessJapanese input in the constitutional process became more pronounced after SCAP presented the American draft to the Japanese government in February 1946. Adoption was an arduous process that entailed months of intergovernmental, parliamentary, and popular discussion. As the document moved through multiple drafts, it was translated from the original English into Japanese, then back into English for SCAP review. Some scholars argue that, in this process, the original American draft underwent Japanization, becoming more representative of Japanese thought. The following example illustrates the process by which Japanese writers influenced conceptual issues through translation.American political philosophy rests on the concept of popular sovereignty: ultimate power resides in the people. This principle was fundamental to Occupation efforts to rebuild the Japanese government. The preamble in SCAPs draft constitution established popular sovereignty within Japan; sections on human rights underscored it.[footnoteRef:25] [25: Beer, Lawrence W. and John M. Maki.From Imperial Myth to Democracy: Japans Two Constitutions, 1889-2002.Boulder: University of Colorado Press, 2002]

But for their part, Japans postwar governmental elite had not swayed from the position in the Meiji Constitution that the Emperor commanded ultimate and inviolable power. When Japanese leaders received the American draft, their first task was to translate it into Japanese. Translators dropped the American-authored preamble altogether, thus circumventing the troubling issue of popular vs. imperial sovereignty. Required by SCAP to reinsert the concept of popular sovereignty, Japanese translators used the archaic word shiko, meaning supreme height. A term out of use in 1940s Japan, shiko was meaningless in conveying the concept to Japanese readers. Through this word choice, the Japanese government obscured the meaning of a political concept they did not endorse (Dower: 379-382). SCAP, in turn, re-translated the Japanese version into English and succeeded in catching most of the conceptual changes that the Japanese had introduced. Translation continued to be an issue through six revised drafts in the Japanese Diet.Opportunity for RevisionMacArthur invited Japanese review and revision of the constitution between 1948 and 1949 to insure that it reflected the free will of the Japanese people. Constitutional scholar Shoichi Koseki has noted that there was little response, despite vocalized concern over foreign authorship. The Japanese government established a review committee, but received only a few proposals for minor revisions. Although it could have done so, the government did not invite public response to the constitution through a national referendum. According to Koseki, the fact that the Japanese government and people disregarded the opportunity to change the constitution when invited to do so, indicates an early level of support that renders the claim of foreign imposition moot (249-254).Article NineEarly in the occupation, MacArthur identified the abolition of war as a critical principle to be included in any revision of Japans constitution. MacArthur drew on the idea of a world without war expressed in the 1928 Kellogg-Briand Pact. However, the no-war provision as it appears in the final constitution is very much a negotiated principle, going beyond American mandate or authorship. MacArthur stipulated that Japan would abolish war as a sovereign right of the nation. War would be renounced as a means to settle disputes and as a means to preserve security. Japan would not have the right to build or maintain a Japanese Army, Navy, or Air Force, and would relinquish the right of belligerency (Gordon: 104). This wording would have denied Japan the right to use military force for any reason, including defense. In the February 1946 draft constitution, Charles Kades, chair of SCAPs constitutional committee, deleted the reference to national defense, but broadened the prohibition against military forces and supplies.[footnoteRef:26] [26: Yokota, 1999 (second edn of 1990 book in note 5) p.]

Once in their court, Japanese Diet members debated the clause, particularly its implications for national defense. Many within the Diet argued that this meant Japan could not defend itself from attack. Others countered that the right of national defense was irrevocable and so Article Nine could not prohibit it. Still others cautioned that the Pacific War had been waged in the name of national defense. Some argued that Article Nine would keep Japan out of the United Nations by precluding Japan from contributing to international peacekeeping and thus, be ultimately self-defeating. While politicians argued, the Japanese people embraced the no-war provision. John Dower suggests that they did so because Article Nine offered this devastated, defeated people a positive national result from the war. While they might be proud of little in their recent national past, Japanese could be proud to lead the world in outlawing war (398).[footnoteRef:27] [27: Constitution of Japan]

Following months of debate, the final version of the no-war clause came from Japans House of Representatives: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 a 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.[footnoteRef:28] [28: Gordon, Beate Sirota.The Only Woman in the Room: A Memoir.New York: Kodansha International, 1997.]

Most analysts agree that the failure to clearly define national defense left the meaning of Article Nine open to debate for all time. Article Nines ambiguity came into play almost immediately with the communist victory in the Chinese Civil War, and then again with the Korean War. In the Cold War context of a regional communist threat, U.S. and Japanese governments interpreted Article Nine to support rearmament for national defense.

The Japanese Constitution in American ClassroomsWhat are the lessons worth teaching in Japans constitutional story? Why is changing historiography on this topic relevant in the classroom? Where can Japans constitution be taught in the social studies curriculum and to what purpose?On one level, multiple narratives of Japans postwar constitution over half a century offer students a living case study in how history is constructed, modified, and enriched by ongoing research and new access to previously unavailable historical sources. Japans constitution also provides a case for examining national perspectives in the intersection of two nations histories. The conventional narrative that Americans authored Japans postwar constitution claims the story as an American story. Newer research makes it a binational and negotiated story.[footnoteRef:29] [29: Inoue, Kyoko.MacArthurs Japanese Constitution: A Linguistic and Cultural Study of its Making.Chicago: University of Chicago Press, 1991]

In civics classes, students can examine what has been seen as an example of successfully transplanting American democracy. In considering the complex story that has emerged, students can better appreciate the multiplicity of factors in that success. Study of Japans constitution should take students beyond the story of the American constitutional convention and engage them in an analysis of the players and conditions in Japan that enabled constitutional democracy to take root. In looking at Japans governmental blueprint, students should be encouraged to look for American influences as well as examine provisions of the document that tie it to other national models and recognize elements that make Japans 1947 Constitution unique.For students in government, history, or international relations classes, Article Nine offers a case study of an enduring constitutional issue affecting Japan in the world. [footnoteRef:30]The meaning of Article Nine, and the larger question of whether to amend the constitution regarding this provision, has been brought to the fore repeatedly: during the Korean War, in a 1954 constitutional assembly, during the 1960 U.S.-Japan security treaty protests, and during military build-up in conjunction with the Vietnam War. In the 1990s, the U.S. criticized Japan for limiting its Mideast peacekeeping contributions to financial and humanitarian aid under Article Nine. [30: Koseki, Shoichi.The Birth of Japans Postwar Constitution.Trans. Ray Moore. Boulder, CO: Westview Press, 1998.]

Most recently, Article Nine underlies the controversy over Japanese response to the 2001 terrorist attacks on the United States. Factions within the ruling Liberal Democratic Party argue that new global realities call for Japan to sever the reins of Article Nine and revise the constitution. [footnoteRef:31]Critics across the political spectrum argue that Article Nine has been bent to the breaking point in 2002 as Japan has redefined its defensive role to include sending Self-Defense Forces to aid U.S. forces in the Pacific, carrying munitions, and refueling war equipment. In April 2002, the Koizumi government proposed a set of emergency-contingency bills designed to give the national government power in case of foreign military attacks. Critics noted that the bills, initiated in the name of self-defense, would legalize national preparation for war, an arguably offensive measure. While the emergency-contingency bills were defeated, controversy over constitutional reform related to Article Nine grows [31: Miller, Barbara, Lynn Parisi and Others.The Bill of Rights around the World.Boulder, CO: Social Science Education Consortium, 1992.]

CONCLUSIONJapan did not have a notion of constitution or any notion of law which constrained the emperor or the government. The first modern constitution, the Meiji Constitution, modeled on the Prussian Constitution, was premised upon the sovereign power of the emperor, giving all governmental powers to the emperor and providing only limited protection of individual rights. Yet, the current Constitution, the Japanese Constitution, is an entirely modern constitution premised upon the popular sovereignty principle, committed to liberal democracy, with the codification of the rule of law and the separation of powers principle and giving full protection to individual rights as fundamental human rights. Individualism and human dignity are basic foundational principles of the Japanese Constitution even though these principles are alien to traditional Japanese society; the Japanese people came to accept them. Moreover, although the Japanese Constitution was enacted under the strong influence of the United states Constitution, strong German influence also remained. The modern constitutional history of Japan can be said to be an implantation of American jurisprudence on a German foundation, modified by Japanese tradition. Furthermore, during the 60 years after its enactment, the Constitution showed development quite unique to Japan.

REFERENCESBIBLIOGRAPHYShiginori Matsui The Japanese Constitution; A Contextual Analysis, Oxford India PaperbacksGlenn D. Hook, Gavan McCormack, Japan's Contested Constitution: Documents and Analysis A Gordon (ed), Postwar Japan as History (Berkeley, University of California Press, 1993)Vishnu Bhagwan and Vidya Bhushan,World Constitutions A comparative Study

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