General Explanation of the Constitutional Revision Drafted by the Government

I. Paragraph 10 of the Potsdam Declaration contains the following statement: "The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. The freedom of speech, of religion, and of thought as well as respect for the fundamental human rights shall be established".
The Japanese Government, in order to comply with the purport of the said Declaration, addressed itself to the task of revising the Constitution, which was promulgated on 11th February, 1889, and has come down to this day without having undergone a single revision. The fundamental spirit of the present draft revision of the Constitution is therefore to render the Constitution more democratic and to facilitate complete attainment of the object of Paragraph 10 of the Potsdam Declaration above-mentioned.
II. In the task of drafting a revision of the Constitution on the basis of the fundamental spirit as mentioned in the preceding paragraph, the first problem encountered is the question as to whether the so-called "Emperor system" should be retained or abolished. Considering the fact that Japan has been reigned over by a line of Emperors unbroken from the very beginning of our national history, there is no room for doubt but that an overwhelming majority of our people are strongly desirous of retaining the system. That is the reason why the draft revision proposes to maintain a system wherein the Emperor exercises sovereign power, rather than to adopt a republican form of government with a president at its head, or so-called "presidential democracy".
However, the present draft revision stipulates first, that the authority of the Emperor shall be greatly restricted, by requiring all important matters of state shall have the consent of the Imperial Diet (or of the Permanent Committee which represents the Diet, in unavoidable cases of urgency)(cf. Nos. 2 to 6, 11,22,23 and 27 to 30 of the Outline of the Draft Revision); second, that it is only with the advice of the Ministers of State that the Emperor may carry out the affairs of state, even as regards the supreme command of the armed forces (cf. No. 20 of the Outline); and third, that the Ministers of State shall be responsible to the Imperial Diet, and hence indirectly to the people, and that the Ministers of State and the Cabinet of which they are members may not remain in their posts without the confidence and support of the House of Representatives (cf. Nos. 2 and 20 to 22 of the Outline). Under the Constitution thus revised, the sovereign power of the Emperor will be exercised through the Imperial Diet in the field of legislation; through the Cabinet, which is wholly based on the Diet, in the field of administration; and through independent Courts of Justice in the judicial sphere. In effect, we shall have a system similar to that of England wherein so-called "parliamentary democracy" has complete sway.
Such being the general purport of the present draft revision, it was decided to make no changes in the language of the fundamental provisions contained in Arts. 1 to 4; with the single exception that in Art. 3 which reads: "The Emperor is sacred and inviolable", the word "supreme" is substituted for "sacred"; for although the latter term was used in a considerable number of Constitutions of European countries during the 19th century, it is neither suitable nor desirable today in that it is suggestive of the divine origin and character of the Emperor and his sovereign power (cf. No. 3 of the Outline).
III. Although there are provisions in the laws currently in force which are calculated to afford considerable protection to the freedom of speech, of religion and of thought, as well as the fundamental human rights, of the Japanese people, in practice not only were they not duly respected but at times were seriously infringed upon. Such a situation was due to the enactment of evil laws and the abuse of laws under governments with undemocratic tendencies. But under the present draft revision, with its provisions for the formation of a democratic government and the expansion of the powers of the Imperial Diet as explained above, it is certain that through the just application of laws justly enacted due respect for the freedom and human rights of Japanese subjects will be secured, in complete contrast to the situation that prevailed hitherto. The draft revision, moreover, provides for further safeguards, as follows:
Firstly, the provisions of the old Constitution which provided for the protection of the freedom and rights of the Japanese people tended to be merely enumerative, and hence was open to the interpretation that any freedom not specifically mentioned in such provisions, e.g. the freedom of carrying on a business, might be restricted otherwise than by law. In the draft revision, therefore, it is proposed to insert a general provision to the effect that in addition to the cases provided for in the relevant provisions of the old Constitution, no restrictions of whatever nature may be imposed upon the freedom and rights of Japanese subjects except by law (cf. No. 10 of the Outline).
Secondly, under the provisions of the old Constitution a Japanese subject whose right was infringed upon by an illegal measure taken by an administrative authority was not entitled to seek protection in an ordinary Court of Law but had to seek his remedy in a specially established Court of Litigation, with the result that his right was not always adequately protected; and in practice, cases were by no means rare where no protection was given at all owing the denial of jurisdiction by both the ordinary Court of Law and the special Court of Litigation (negative conflict of competence). The draft revision therefore provides that Courts of Administrative Litigation shall be abolished, and that cases involving administrative matters shall come under the jurisdiction of ordinary Courts of Law (cf. No. 24 of the Outline).
Thirdly, in addition to the above, revision of the provisions relating to administrative ordinances, revision of the provisions relating to freedom of religious thought and abolition of the provisions relating to the authority of the Emperor in cases of national emergency are proposed with a view to rendering even more sound the safeguards afforded to the freedom and rights of the Japanese people (cf. Nos. 4, 9 and 11 of the Outline).
Fourthly, the old Constitution contained provisions recognizing the existence of Peers as a special privileged class, as well as provisions recognizing special treatment for army and navy personnel. Under the draft revision all such provisions recognizing inequalities among the Japanese people will be either revised or abolished (cf. Nos. 7, 12 and 14 of the Outline).
IV. As already stated in Para. II above, the draft revision proposes to enlarge the powers of the Imperial Diet. To that end there are, in addition, revisions or insertions of new provisions concerning such matters as the duration of the Diet session, etc. (cf. Nos. 16 to 19 of the Outline).
The draft revision proposes also to modify the organization of the House of Peers by excluding the Imperial Princes and members of Nobility from membership and determining its organization by law instead of by ordinance, and also to change the nomenclature of the House, i.e. to "House of Senators" (cf. Nos. 13 and 14 of the Outline). Moreover, the old system wherein the House of Peers had the same powers as the House of Representatives is to be modified so as to tender the powers of the House of Senators merely subsidiary to those of the House of Representatives (cf. Nos. 15, 21 and 26 of the Outline). As a result of this revision our House of Representatives will come to occupy a position of superiority similar to that held by the House of Commons vis-a-vis the House of Lords in England.
The above revision of the provisions concerning the Imperial Diet, we believe, will make no small contribution to the strengthening of democratic tendencies in Japan.
V. Finally, a brief explanation of certain points in the draft revision not covered in the preceding paragraphs.
Firstly, the system of Privy Council was sometimes criticized on the ground that it was prone to hamper the operation of constitutional politics, the reason for the criticism being that the Privy Council which was in no way responsible to the Imperial Diet had certain important powers. However, under the draft revision, urgent ordinances or orders concerning emergency financial measures must be referred to the Permanent Committee of the Imperial Diet before they are issued, while conclusion of treaties is made subject to the approval of the Imperial Diet (cf. Nos. 3, 6 and 29 of the Outline). In respect of such important affairs of state, therefore, authority of the Privy Council will be excluded. And since, as a further check, the organization of the Privy Council is to be determined by law, the powers of Privy Councillors cannot but be greatly curtailed. And since the number of Privy Councillors will in all probability be reduced, the Privy Council will most likely be reduced to a politically harmless body (cf. No. 23 of the Outline). It is therefore not proposed, to abolish the body, especially as there is necessity for its retention for purposes of application of the Imperial House Laws and other laws.
Secondly, all the expenditures of the Imperial Household were hitherto defrayed according to a fixed amount without the necessity of obtaining the consent of the Imperial Diet. But under the draft revision, only the expenditures of the Imperial Court may be thus defrayed without the consent of the Diet (cf. No. 26 of the Outline).
Thirdly, the right of initiating constitutional revision which hitherto was vested solely in the Emperor is to be recognized also for members of the Imperial Diet (cf. No. 31 of the Outline). This is the most important modification proposed by the present draft revision.
Fourthly, modification of the Constitution or of the Imperial House Law was hitherto prohibited during the period of a Regency; but that prohibition is removed by the draft revision (cf. No. 33 of the Outline). This too is a point of considerable importance.
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