Chapter IV of the constitution deals with the Diet, the legislature of Japan. Although the constitution establishes a three-way separation of powers, the Diet appears superior—the “highest organ of state power” and the “sole law-making organ of the State” (Article 41). This reflects the constitution's relocation of sovereignty to the Japanese people and their elected representatives. As will be seen in the following articles, the Diet performs several important functions in addition to legislation.

The Imperial Diet under the Meiji Constitution

“Deliberative assemblies shall be widely established and all matters decided by open discussion” was one of the mandates of the Meiji emperor in his Charter Oath of 1868. With the dissemination of knowledge of how western countries were governed, demands for a national, representative assembly became an important factor in post-Restoration politics. These were ultimately met with the promulgation of the Meiji Constitution, which established the Imperial Diet, the predecessor of the current Diet. There is limited continuity between the two Diets. The Imperial Diet had two houses: the elected House of Representatives (Shūgiin; the same name as under the current constitution) and the appointed House of Peers (Kizokuin). Under the Meiji Constitution the Imperial Diet performs certain functions of government in tandem with the ministers of state and the judicature, but without a well-developed separation of powers.

In contrast, the present Diet is different from the Imperial Diet in many ways, most of which can be explained by the status of the emperor. Under the Meiji Constitution, the emperor was the holder of absolute sovereign power (sōransha) (Article 4), and enacted laws “with the consent of “ the Imperial Diet (Article 5). Due to his status as sōransha, the emperor had a veto over bills that were passed by both chambers of the Imperial Diet, which could be exercised by the emperor not giving assent (saika) (Article 6). Furthermore, under the Meiji Constitution the emperor could rule by decree in certain circumstances without the support of the Imperial Diet (Articles 8 and 9). The emperor monopolized the power to command the army and navy without interference from the legislature (Articles 11 and 12), except through the budget process.

We, acting by command of and in behalf of the Emperor of Japan, the Japanese Government and the Japanese Imperial General Headquarters, hereby accept the provisions set forth in the declaration issued by the heads of the Governments of the United States, China, and Great Britain on 26 July 1945 at Potsdam, and subsequently adhered to by the Union of Soviet Socialist Republics, which four powers are hereafter referred to as the Allied Powers.

We hereby proclaim the unconditional surrender to the Allied Powers of the Japanese Imperial General Headquarters and of all Japanese armed forces and all armed forces under the Japanese control wherever situated.

We hereby command all Japanese forces wherever situated and the Japanese people to cease hostilities forthwith, to preserve and save from damage all ships, aircraft, and military and civil property and to comply with all requirements which may be imposed by the Supreme Commander for the Allied Powers or by agencies of the Japanese Government at his direction.

We hereby command the Japanese Imperial Headquarters to issue at once orders to the Commanders of all Japanese forces and all forces under Japanese control wherever situated to surrender unconditionally themselves and all forces under their control.

We hereby command all civil, military and naval officials to obey and enforce all proclamations, and orders and directives deemed by the Supreme Commander for the Allied Powers to be proper to effectuate this surrender and issued by him or under his authority and we direct all such officials to remain at their posts and to continue to perform their non-combatant duties unless specifically relieved by him or under his authority.

We hereby undertake for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith, and to issue whatever orders and take whatever actions may be required by the Supreme Commander for the Allied Powers or by any other designated representative of the Allied Powers for the purpose of giving effect to that Declaration.

We hereby command the Japanese Imperial Government and the Japanese Imperial General Headquarters at once to liberate all allied prisoners of war and civilian internees now under Japanese control and to provide for their protection, care, maintenance and immediate transportation to places as directed.

Japan's present constitution is, obviously, a product of its history. An important facet of that history is the constitution which came before, the Constitution of the Empire of Japan, more commonly called the “Meiji Constitution,” after the Emperor Meiji who bestowed it on his subjects in 1889. A basic understanding of the historical background to both constitutions is thus important to understanding Japanese constitutional law today.

Since both charters are of comparatively modern provenance—at least when compared to the British or American constitutions—only a minimal inquiry into the history of Japan predating the Meiji Restoration of 1868 is necessary. There are numerous fine studies of the history of Japan after the Restoration by historians, so coverage of that period will also be brief. There are also several excellent accounts in English of the unusual circumstances of the constitution's birth during the postwar Occupation1 and at the time of writing all of the key documents could be accessed through the National Diet Library's “Birth of the Constitution of Japan” on-line exhibit. Thus, though a fascinating and dramatic story, only a brief outline of that part of the constitution's history will be provided in this work.

Prologue to Meiji: Ancient times through Tokugawa

Japan's legal system is comparatively modern. With the exception of emperors as a feature of government, virtually no Japanese laws or government institutions in existence today predates the Meiji Restoration of 1868, and most of those still in place can only be traced as far back as the birth of the Meiji Constitution or later.

The emperor system is a useful way of tracing the historical prelude to the Meiji Constitution. The first emperor, the probably mythical Emperor Jimmu, is said to have established the nation and acceded to the throne in 660 BC. According to the two earliest surviving historical narratives, the Kojiki (712) and Nihonshoki (721), Jimmu was a direct descendant of the deities that created the Japanese islands.

The supposedly unbroken lineage of emperors that followed Jimmu thus establishes a putative link between the imperial system and the divine origins of the Japanese nation. While this lineage no longer has formal political significance, it is relevant to the important role the emperor continues to play in the Shintō religion, including through forms of ancestor worship.

Article 9 in a global context

The single article comprising Chapter II—Article 9—is by far the most famous feature of the Constitution of Japan, and the provision that likely has the most emotional dimension for the Japanese people. Many seem to take pride in their constitution's rejection of war and the pacifistic ideals it embodies. Others may have no objections to peace, but consider the restraints as a millstone around the neck that prevents the nation from protecting itself in a dangerous world.

Within Japan and elsewhere in the world there also appears to be a widespread perception of Article 9 as a uniquely Japanese contribution to constitutionalism. In 2014, Article 9 was even nominated for a Nobel Peace Prize. The large military described as a “Self-Defense Force” and existing under a constitution that disclaims “land, sea and air forces,” could also be seen as a uniquely Japanese institution.

The reality is more complicated. The degree to which any particular aspect of Article 9 is actually unique is debatable, particularly given the Japanese government's longstanding interpretation of it as permitting the maintenance and use of military forces for self-defense. The French constitution of 1791 established its military to “to defend the State against enemies from abroad,” and postwar constitutions of nations as diverse as (for example) Germany, Italy, the Philippines, Costa Rica and South Korea contain provisions comparable to at least parts of Article 9.1 Some small countries simply do not have armed forces without addressing the subject in their constitutions. Nor do the contents of Article 9 in a constitution promulgated in 1946 make Japan an “early adopter” of some of the principles it articulates. The horrors of World War II and the numerous smaller regional conflicts that preceded it make it easy to forget that the leading nations of the world—including Japan—had already ratified an instrument formally entitled “The General Treaty for Renunciation of War as an Instrument of National Policy,” more commonly known as the Kellogg-Briand Pact of 1928.2 Japan almost immediately violated this treaty with the invasion of Manchuria in 1931, conflict with China starting from 1937, and the surprise attack on the United States and other Allied Powers in 1941.

Treaty of Peace with Japan

WHEREAS the Allied Powers and Japan are resolved that henceforth their relations shall be those of nations which, as sovereign equals, cooperate in friendly association to promote their common welfare and to maintain international peace and security, and are therefore desirous of concluding a Treaty of Peace which will settle questions still outstanding as a result of the existence of a state of war between them;

WHEREAS Japan for its part declares its intention to apply for membership in the United Nations and in all circumstances to conform to the principles of the Charter of the United Nations; to strive to realize the objectives of the Universal Declaration of Human Rights; to seek to create within Japan conditions of stability and well-being as defined in Articles 55 and 56 of the Charter of the United Nations and already initiated by post-surrender Japanese legislation; and in public and private trade and commerce to conform to internationally accepted fair practices;

WHEREAS the Allied Powers welcome the intentions of Japan set out in the foregoing paragraph;

THE ALLIED POWERS AND JAPAN have therefore determined to conclude the present Treaty of Peace, and have accordingly appointed the undersigned Plenipotentiaries, who, after presentation of their full powers, found in good and due form, have agreed on the following provisions:

Chapter 1: Peace

Article 1

(a) The state of war between Japan and each of the Allied Powers is terminated as from the date on which the present Treaty comes into force between Japan and the Allied Power concerned as provided for in Article 23.

(b) The Allied Powers recognize the full sovereignty of the Japanese people over Japan and its territorial waters.

Article 2

(a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.

(b) Japan renounces all right, title and claim to Formosa and the Pescadores.

(c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5 September 1905.

Overview

Article 10 of the Potsdam Declaration made the establishment of the respect for fundamental human rights a condition of Japan's surrender. Chapter III of the Constitution of Japan, which covers the rights and duties of the people, was in large part how this principle was put into effect. One major factor which contributed to making the protection of human rights such a focus was undoubtedly the very weak protection they had enjoyed in Japan under the Meiji system, a situation about which we may begin this chapter with a few words.

One well known anecdote related to Japan's selective adoption of a legal system based on western models in the Meiji era is that the language lacked a word that “right” could be translated into and one thus had to be invented from scratch (kenri). The profundity of this story is somewhat blunted by the fact that the Japanese language produces huge numbers of new words each year without it really impacting the ability of people to use the thing being described, and also by the fact that Japan in the preceding Tokugawa era had long experience with concepts analogous to property and contractual rights in the field of private law. It does however usefully serve as a simplified metaphor for the discomfort that members of the Meiji ruling class felt towards the idea of creating a set of legal rights that the people could use specifically against the new state which they were in the process of building.

This unease is reflected in the content of the Meiji Constitution's second chapter which, like Chapter III of the current one, covers rights and duties. The rights enshrined in the Meiji Constitution differed from those in the current constitution in three major ways. The first is that most current rights simply were not in it. Economic and social rights were completely absent while rights related to the criminal process, intellectual freedom and procedural rights against the state for the most part existed only in very rudimentary form. The second is that the small number of rights that were included were always qualified as being subject to the provision of law. While this did not necessarily deprive them of all meaning as they could still serve as a check on arbitrary abuse, it did mean that they could be limited or stripped away through regular legislation as the government saw fit (as it, not coincidentally, often did).

Historical overview

Though civil and criminal adjudicatory processes had operated in Japan for centuries, the roots of the present-day court system in Japan can be traced back to 1872, when an ordinance from the newly-established Ministry of Justice created a national court structure in the country. Other early Meiji innovations, such as the establishment in 1875 of a Great Court of Cassation (Daishin’in) based on the French Cassation, contributed to the shaping of the court system. With the passage in 1896 of the Court Organization Law, heavily influenced by German models, the Japanese judicial system gained its modern features at the same time as the other features of government under the Meiji constitutional system took shape.

In the Meiji Constitution, Chapter V was devoted to “The Judicature,” while in the current constitution, Chapter VI deals with “The Judiciary.” The Japanese term (shihō) used is the same in both texts, meaning the difference is primarily one of changing the English to match a more contemporary (and possibly American) reading. Under the Meiji system the Ministry of Justice was named the shihōshō, as it administered the justice system, including the courts. The overlap of the judiciary and the executive was thus a feature of the Meiji system.

As discussed later in this chapter, the highly bureaucratic organization of the Japanese judiciary born under the Meiji reforms may still be observed in contemporary Japan, and continued close ties and cooperation between the judiciary and the Ministry of Justice is a key element in understanding how the Japanese judicial system operates today.

Consistent with the idea of a state centered around the emperor which was the foundation of the Meiji Constitution, and the attendant rejection of any fundamental separation of powers, the Judiciary was not a fully autonomous governmental organ. This is clear from Article 57, which reads “The Judicature shall be exercised by the Courts of Law according to law in the name of the Emperor.” Moreover, perhaps more importantly for practical purposes, judges were subject to the administrative authority of the Ministry of Justice.

Imperial Oath at the Sanctuary of the Imperial Palace

We, the Successor to the prosperous Throne of Our Predecessors, do humbly and solemnly swear to the Imperial Founder of Our House and to Our other Imperial Ancestors that, in pursuance of a great policy co-extensive with the Heavens and with the Earth, We shall maintain and secure from decline the ancient form of government.

In consideration of the progressive tendency of the course of human affairs and in parallel with the advance of civilization, We deem it expedient, in order to give clearness and distinctness to the instructions bequeathed by the Imperial Founder of Our House and by Our other Imperial Ancestors, to establish fundamental laws formulated into express provisions of law, so that, on the one hand, Our Imperial posterity may possess an express guide for the course they are to follow, and that, on the other, Our subjects shall thereby be enabled to enjoy a wider range of action in giving Us their support, and that the observance of Our laws shall continue to the remotest ages of time We will thereby to give greater firmness to the stability of Our country and to promote the welfare of all the people within the boundaries of Our dominions; and We now establish the Imperial House Law and the Constitution. These Laws come to only an exposition of grand precepts for the conduct of the government, bequeathed by the Imperial Founder of Our House and by Our other Imperial Ancestors. That we have been so fortunate in Our reign, in keeping with the tendency of the times, as to accomplish this work, We owe to the glorious Spirits of the Imperial Founder of Our House and of Our other Imperial Ancestors.

We now reverently make Our prayer to Them and to Our Illustrious Father, and implore the help of Their Sacred Spirits, and make to Them solemn oath never at this time nor in the future to fail to be an example to our subjects in the observance of the Laws hereby established.

May the Heavenly Spirits witness this Our solemn Oath.

Overview

The three articles comprising Chapter X establish the constitution as the supreme law of the nation, though not without raising some questions about the status of international law. These three articles seem of paramount importance, as they articulate fundamental constitutional principles found in legal systems of most, if not all, modern liberal democracies.

Some commentators, however, have expressed reservations about or even openly criticized these articles for a variety of reasons. For example, one would expect fundamental provisions affecting the interpretation of the entire document to appear at the beginning, ideally in the preamble or first chapter. This would be a legitimate expectation especially in the case of texts with an important symbolic value and a profound political impact such as constitutions. In the Japanese constitution, however, this chapter appears at the end, sandwiched between the provisions on amendment and the now meaningless supplementary provisions of Chapter XI. While in principle the binding force of provisions of law does not depend on their position within the text, the location of Chapter X nonetheless appears a bit unusual and possibly diminishes its perceived importance. A common explanation is that the drafters felt that these provisions had to be included, but they did not find a better position in the document, so they placed them where they are for lack of better alternatives.

Similarly, in the final report of the Commission on the Constitution, several commissioners expressed the view that Chapter X did nothing more than repeat matters already dealt with in other articles, or state obvious things such as that the constitution should be upheld and respected, and that it is superior to other laws and regulations. In fact, the majority view was that all three articles of Chapter X were either unnecessary or wrongly placed, and they should be eliminated in the event of amendment.

Right to resistance and state of emergency

Japanese constitutional law scholars usually analyze the relation between the provisions of Chapter X and the doctrine of the right to resistance (teikōken), and the issues related to the validity of the constitution during a state of emergency.

Emperor is at the head of the state.

His succession is dynastic.

His duties and powers will be exercised in accordance with the Constitution and responsive to the basic will of the people as provided therein.

II

War as a sovereign right of the nation is abolished Japan renounces it as an instrumentality for settling its disputes and even for preserving its own security It relies upon the higher ideals which are now stirring the world for its defense and its protection.

No Japanese Army, Navy, or Air Force will ever be authorized and no rights of belligerency will ever be conferred upon any Japanese force.

III

The feudal system of Japan will cease.

No rights of peerage except those of the Imperial family will extend beyond the lives of those now existent.

No patent of nobility will from this time forth embody within itself any National or Civic power of government.

Pattern budget after British system.

Statutory annotations are a standard reference work for law students, academics and legal practitioners in Japan. With respect to the Constitution of Japan a number of excellent works—some going by the name of kommentāru (the Japanese rendering of the German “kommentar”)—are available and provide an article-by-article explanation of what the words of each provision of the charter mean. Depending on the version, there may also be capsule descriptions of important court cases in which a provision was interpreted, as well as summaries of what academia thinks about the subject. As a means of acquiring a basic grounding in what the constitution means, these books are a very useful starting point—if you can read Japanese.

There is, of course, a large body of scholarship in English on the Japanese constitution, including works by some of the authors who have contributed to this volume. However, a great deal of scholarship in English has tended to be focused on specific areas: criminal justice, freedom of speech, religion, and of course the famous “no war” provisions of Article 9. There are only a few books offering a comprehensive overview of the entirety of the constitution, and none offering a text-based, article-by-article explanation. This book is a collective effort by a team of scholars to remedy that deficiency; to make the Japanese constitution broadly accessible in its entirety to the many people who are interested in it or need to know about specific aspects of it for comparative purposes, but are unable to read about it in Japanese.

While this work will try to offer the basic “annotation” format familiar to Japanese readers, there are some necessary differences. First, being based on an assumption that many non-Japanese readers will know little or nothing about Japan or its legal system, an effort has been made to provide additional contextual information. Second, being also based on an assumption that readers will have little or no ability to read Japanese, this book will also point out some of the linguistic nuances in the Japanese version that are either missing or different in the English.

As an academic discipline, constitutional law in Japan can sometimes seem highly doctrinal, not to mention political, particularly with respect to controversial subjects such as the existence and use of the nation's Self-Defense Forces.

The Constitution of Japan (Japanese)