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Memorandum to Chief,
Government Section dated
12 February 1946, discussing
Outline of Matsumoto Draft
TOP SECRET
Comments on the Document
"Gist of the Revision of the Constitution"
The Potsdam Declaration states that, "The Japanese Government shall remove
all obstacles to the revival and strengthening of democratic tendencies among
the Japanese people. Freedom of speech, of religion, and of thought, as well
as respect for the fundamental human rights shall be established". It further
states that the occupying forces of the Allies shall be withdrawn from Japan
as soon as the objectives set forth in the Declaration, including the above objectives,
have been accomplished and "... there has been established in accordance
with the freely expressed will of the Japanese people a peacefully inclined and
responsible Government".
In order to fulfill those objectives of the Declaration quoted above the Constitution
of Japan should embody the following principles within its provisions. The "comment" which
follows the statement of each principle indicates the extent to which the present
Constitution or its proposed revision fails to recognize and safeguard these
principles. There are other criticisms of the present Constitution and the proposed
revision than those set forth below.
1. There should be "... established in accordance with the freely expressed
will of the Japanese people a peacefully inclined and responsible government".
This means that sovereignty is to rest in the people.
Comment:
a. Chapter I, Articles 1 to 6 are revised only to the extent that the word "sacred" in
Article 3 is changed to "supreme". This makes no basic change in the
concept of sovereignty leaving it wholly vested in the Emperor.
b. No change has been proposed in Article 5 whereby the Emperor continues to
exercise the legislative power.
c. The Emperor still can dissolve the House under Article 7, as the revision
as proposed (Gist, Par. 2) makes no material change.
2. An executive responsible to the people in whom should repose the sovereign
power.
Comment:
While the proposed change in Article 55 of the Constitution provides for the
responsibility of the Cabinet to the House, it is proposed to retain the Privy
Council. The Council, in reality a "third house" is a powerful executive
organ which once established by law becomes responsible only
to the Emperor and is beyond the reach of the will of the people. Thus the Privy
Council can continue to dispute executive power with the Cabinet. Its retention
would nullify the significance of the proposed change to Article 55 to make the
Cabinet responsible to the House and through the House to the people. No matter
how narrowly defined by law the functions of the Council may be it would still
enjoy equal access to the Emperor with the Cabinet and be in a powerful advisory
position. The Cabinet should be the sole executive organ having access to the
Emperor and should be responsible only to the Diet. The proposed revision fails
to provide adequately for that situation.
3. A fully representative legislative body with complete power over the budget
which shall become effective only with its express approval.
Comment:
a. The proposed revision of Article 67 (Gist, Par. 27) is inadequate as it limits
the full power of the legislature over the budget. The legislature should have
the power not only to reject or reduce items in the proposed budget but should
also be free to increase any item or to add new ones.
b. The proposed change in Article 66 (Gist, Par. 26) still requires the House
automatically to approve part of the Imperial Household budget and is an unnecessary
restriction upon the full power of the House over control of an annually submitted
budget. The entire expenditure of the Imperial Household should be subject to
annual appropriations by the Diet.
4. A Bill of Rights which shall cover not only Japanese subjects but all other
persons within Japan.
Comment:
Neither in the original Constitution nor in the proposed changes is there adequate
recognition of the basic rights of man. The limiting clauses, "according
to the provisions of law", "within the limits of the law", etc.
may and have been so broadly construed in the past as to restrict and even to
deprive the Japanese people of these fundamental rights. Therefore the proposed
revisions (Gist, Pars. 8 - 12) are wholly inadequate to guarantee these rights
to the Japanese. Aliens are entirely unprotected by the Bill of Rights as the
provisions in Chapter II of the Constitution cover only Japanese subjects.
5. Provision for control of local affairs.
Comment:
There is no provision made in the Constitution or in the proposed revision for
the right of the people to elect their own local officials and thus make their
will more effective in the conduct of local affairs.
6. Adoption of the Constitution and Amendments thereto should be done in such
manner as to fully express the will of the people.
Comment:
Under the present Constitution and the proposed revisions (Gist, Pars. 31, 32)
the Emperor retains the power to "sanction" and hence veto any amendments
passed by the House. The people, acting through their elected members to the
legislature should have the full power for initiating and passing upon amendments.
The Emperor's action with respect thereto should be limited to the formal promulgation
thereof.
7. In order that the people may make effective their will through the legislature
no other organ of state can exercise more than a temporary veto over legislative
enactments.
Comment:
Under the present Constitution the wide powers reserved to the Emperor and the
executive are not clearly enough restricted to assure that acts passed by the
legislature shall be promptly promulgated. No change, as appointed above, is
proposed in Article 5 by which the Emperor "exercises the legislative power",
nor in Article 6 which stipulates that he must give "sanction to laws and
orders them to be promulgated and executed". In fact the draft revision
may completely frustrate the will of the people by requiring the House to pass "three
times in succession by at least two-thirds of all its members" (Gist, Par.
15) a bill vetoed by the House of Senators.
8. The legislative body should be permitted to meet at will.
Comment:
Article 7 of the Constitution authorizes the Emperor to convene, open , close,
prorogue, and dissolve the Diet. The draft revision (Gist, Par. 2) does not materially
alter the existing restrictions to the Diet meeting at will. Under Article 42
it is provided that the regular Diet session shall be limited to three months.
Only by Imperial Order can the session be prolonged. The undesirable subservience
of the legislature to the executive is thereby assured.
9. When the Cabinet loses the confidence of the Diet it must either resign or
appeal to the electorate.
Comment:
a. The draft revision (Gist, Par. 21) implies that a vote of non-confidence can
only be directed against a single Minister of State, thus denying the principle
of collective Cabinet responsibility.
b. Furthermore, it provides that if a vote of non-confidence is passed against
any Minister "such Minister may not remain in office except in case where
the House has been dissolved". This implies that the House can be dissolved
by the executive without a vote of non-confidence against the Cabinet as a whole
and is again a denial of the principle of collective Cabinet responsibility,
leaving with the executive an excessive coercive power over the Diet by threatening
to dissolve it over relatively minor issues affecting only one Ministry.
10. The Emperor should act in all matters of State only on the advice of the
Cabinet.
Comment:
Article 55 as it stands, or as revised, (Gist, Par. 20) fails to restrict the
power of the Emperor to act only on the advice of the Cabinet. Thus the danger
of new quasi-official executive organs developing around and advising the Emperor
(i.e., acting in the name of the Emperor) has not been adequately provided against
in the proposed revision.
GIST OF THE REVISION
OF THE CONSTITUTION.
CHAPTER I. THE EMPEROR.
1. Article 3 which now reads: "The Emperor is sacred and inviolable" shall
be changed to : "The Emperor is supreme and inviolable."
2. A provision shall be made to preclude the dissolution of the House of Representatives
provided for in Article 7 being ordered repeatedly for one and the same cause.
3. It shall be provided that the urgent Imperial Ordinances mentioned in Article
8 must, before being issued, be referred to the Permanent Committee of the Imperial
Diet in accordance with the provisions of the Diet Law.
4. The part of Article 9 which now reads: "ordinances necessary..........for
the maintenance of public peace and order, and for the promotion of the welfare
of the subjects" shall be changed to : "ordinances necessary for the
attainment of the objects of administration." (Cf. No. 10 of Outline).
5. The part of Article 11 which now reads: "the Army and Navy" shall
be changed to : "the armed forces"; and Article 12 shall be revised
so as to provide that the organization and peace standing of the armed forces
shall be determined by law. (Cf. No. 20 of Outline).
6. The provisions of Article 13 shall be revised so as to provide that the Imperial
prerogative of making war and peace, and of concluding treaties concerning matters
which must be determined by law or treaties which imposes a grave duty upon the state
requires the consent of the Imperial Diet; but that where, by reason of circumstances
internal or external, there exists a necessity of such urgent nature that it
is impossible to await the convocation of the Imperial Diet, it shall be sufficient
to refer such matters to the Permanent Committee of the Imperial Diet. In such
case a report shall duly be made to the Imperial Diet at its next session and
its approval obtained thereto.
7. Article 15 which now reads: "The Emperor confers titles of nobility,
rank, orders and other marks of honor" shall be changed to: "The Emperor
confers marks of honor."
CHAPTER II. RIGHTS AND DUTIES OF SUBJECTS.
8. The phrase "amenable to service in the Army or Navy" in Article
20 shall be changed to "amenable to service in the public interest."
9. Article 28 shall be revised so as to provide that Japanese subjects shall,
within limits not prejudicial to peace and order, enjoy freedom of religious
belief.
10. A provision shall be made to the effect that in addition to the cases mentioned
in the present Chapter, no restrictions of whatever nature may be imposed upon
the freedom and rights of Japanese subjects except by law.
11. The provisions of Article 31 concerning the emergency authority of the Emperor
shall be deleted.
12. Article 32 containing provisions concerning military and naval personnel
shall be deleted.
CHAPTER III. THE IMPERIAL DIET.
13. In Article 33 et seq., the term "the House of Peers" shall be changed
to "the House of Senators".
14. Article 34 shall be revised so as to provide that the House of Senators shall
be composed of members who have been elected thereto and of those who have been
appointed thereto by the Emperor, in accordance with the Law concerning the House
of Senators.
15. A provision shall be made to the effect that a draft law which has been passed
by the House of Representatives three times in succession by at least a two-thirds
majority of all its members, upon being submitted to the House of Senators, be
deemed to have obtained the consent of the Imperial Diet irrespective of whether
or not it is voted upon by the House of Senators.
16. The period of "three-months" provided for in Article 42 as the
duration of a session of the Imperial Diet shall be changed to "a period
of not less than three months to be determined by the Law concerning the Imperial
Diet".
17. The period "within five months" provided for in Article 45 as the
period within which the House of Representatives is required to convoked subsequent
to its dissolution shall be changed to "within three months".
18. The proviso of Article 48 shall be revised so as to provide that the deliberations
of either House may be held in secret session only in pursuance of a resolution
of the House concerned.
19. A provision shall be made to the effect that a member of
either House who has been arrested prior to the opening of the Imperial Diet
session shall be released during such session if his release is demanded by the
House to which he belongs.
CHAPTER IV. THE MINISTERS OF STATE AND THE PRIVY COUNCIL.
20. The first paragraph of Article 55 shall be revised so as to provide that
the respective Ministers of State shall act in an advisory capacity to the Emperor
and be responsible to the Imperial Diet, even as regards the supreme command
of the armed forces.
21. A provision shall be made to the effect that when the House of Representatives
has passed a vote of non-confidence against any Minister of State, such Minister
may not remain in office except in cases where the House has been dissolved.
(Cf. No. 2 of the Outline).
22. A provision shall be made to the effect that the Cabinet shall be made up
of all the Ministers of State, and that the organization of the Cabinet shall
be determined by law.
23. A provision shall be made to the effect that the organization of the Privy
Council shall be determined by law.
CHAPTER V. THE JUDICATURE.
24. Article 61 shall be revised so as to provide that litigations involving administrative
matters shall come within the jurisdiction of Courts of Law (i.e. rather than
of Courts of Administrative Litigation) in accordance with other laws governing
such matters.
CHAPTER VI. FINANCE.
25. A provision shall be made to the effect that the House of Senators may not
effect an amendment which increases the amount of a budget already passed by
the House of Representatives.
26. Article 66 shall be revised so as to provide that of the expenditures of
the Imperial Household, the expenditures of the Imperial Court, and those only,
shall be defrayed each year from the national treasury without the necessity
of obtaining the consent of the Imperial Diet, except in cases where such expenditures
are to be increased.
27. Article 67 shall be revised so as to provide that the Imperial Diet may,
even without the concurrence of the Government, reject or reduce those expenditures
already fixed which are based by the Constitution upon the powers appertaining
to the Emperor.
28. A provision shall be made to the effect that in cases where a reserve fund
is to be applied to defray any necessary expenditures not included in the budget,
as well as where payments are to be made otherwise than out of a reserve fund
to cover unavoidable deficiencies in the budget or to meet necessary expenditures
not included in the budget, such cases shall be referred to the Permanent Committee
of the Imperial Diet.
29. It shall be provided that the emergency financial measures provided for in
Article 70 must be referred to the Permanent Committee of the Imperial Diet.
30. Article 71 shall be revised so as to provide that in cases where the budget
has not been passed, the government shall prepare a tentative
budget in accordance with the provisions of the Finance Law and shall carry out
such tentative budget pending the passage of the (regular) budget. If in such
cases the Diet is not in session, the Government shall forthwith convoke the
Diet and submit thereto for approval the tentative budget, together with the
budget for that year.
CHAPTER VII. SUPPLEMENTARY RULES.
31. A provision shall be made to the effect that a member of either House may,
with the concurrence of not less than one-half of all the members of the House
to which he belongs, introduce a motion for revision of the Constitution.
32. A provision shall be made to the effect that the Emperor sanctions any constitutional
revision passed by the Imperial Diet and orders its promulgation and enforcement.
33. Article 75 governing restrictions on the modification of the Constitution
and of the Imperial House Law shall be deleted.
34. Provisions necessary for the enforcement of all the revised provisions of
the Constitution above-mentioned shall be made. |