Memorandum for Chief of Staff. Subject: Comments on Constitutional Revision proposed by Private Group

MEMORANDUM FOR CHIEF OF STAFF.

SUBJECT : Comments on Constitutional Revision proposed by Private Group.

1. The translation of the Constitution, attached to letter of Political Adviser to Secretary of State, No. 153, 2 January 1946, does not agree in detail, and occasionally in meaning, with the translation of ATIS in Press Relations No. 571 of 31 December 1945.

2. In the letter from Political Adviser, he states that the Social Democratic Party has not yet accepted the first article of the Constitution. These comments are based on the assumption that the first article will remain as drafted. Should a change be made in the first article, additional safeguards should be incorporated in the Constitution protecting the powers of the legislative, executive and judicial branches.

3. A study of the present Japanese Constitution and the operation of Government thereunder is, and for several months has been, in preparation in this Section. A preliminary report, dated 6 December 1945, is attached as Tab "A". The recommendations made therein are substantially covered in the proposed Constitution except where specifically noted hereafter.

4. General Principles, Sections 1 to 5. It is suggested that these provisions relating to sovereignty be augmented with a section clearly stating that this Constitution is the supreme law of the land, and that no other laws shall be in conflict therewith.

5. Rights and Duties of the People, Sections 6 to 18. These sections set up a bill of rights which is much more effective than the one in the present Constitution. Freedom of speech, press, education, art and religion are guaranteed, and other spocial principles are incorporated, all of which are compatible with democracy.

Section 9 of the Polad translation states: "The people shall not be tortured", whereas that of ATIS states: "The people cannot be oppressed". Other than the foregoing, a large field, normally found in the bill of rights, is omitted. This includes all provisions relating to rights of people accused of crime and restraints on law-enforcing agencies in their investigations. The most serious abuses of individual rights in Japan have been through the uncontrolled actions of the various police agencies, particularly the Higher Secret Police and the Kempei-Tai and the conduct of the procurators (Kenji). All manner of abuses have been practiced by the police and procurators in the enforcement of general law, but primarily in the enforcement of the thought control law. It is not unusual for people to incarcerated for months and years without charges being filed, during all of which time attempts are made to force confessions from the accused. It is strongly recommended that Constitutional guarantees be required which will prevent imprisonment without charges being filed. To accomplish this, some proceeding which will compel the police to bring an arrested person publicly before a court and explain the reason for his imprisonment, similar to a writ of habeas corpus, be required; additionally that the Constitution require a speedy and public trial of all persons accused, and prohibit placing an accused twice in jeopardy for the same offence.

In addition to the provisions of section 9, which prohibit torture, in order to reduce the third-degree methods used by law enforcing agencies, it is recommended that a constitutional provision be required which states the accused shall not be compelled to testify against himself, and a provision giving him the right to counsel immediately upon his arrest. It has been suggested that a constitutional provision require that no confession be admitted in evidence in any court proceeding unless the counsel for the accused was present at the time the confession was made. This is an extreme provision, but many Japanese lawyers are of the opinion that it would not unduly interfere in the administration of justice.

Japanese police are notorious for their interminable searches and seizures in the homes of citizens, and provision against unreasonable searches and seizures should be required.

6. The Diet, Sections 19 to 29. The Polad translation of section 19 reads: "The Diet shall have the right of legislation". The ATIS translation reads: "The Diet has the legislative power". If the meaning of the provision in Japanese is that the Diet has the sole power of legislation, this provision is adequate. If there is any doubt as to the meaning, the provision should be clarified so that the Diet has the exclusive power to enact laws. Section 22 provides for a second house, which is composed of representatives of minority pressure groups. This is unusual but, inasmuch as the second house has practically no power, it is believed to be unobjectionable.

7. The Cabinet, Sections 30 to 37. These provisions do not require that the Prime Minister or other ministers be chosen from the elected representatives of the people. It would be more desirable if they were so chosen, but it is not believed that this omission is fatal. Section 34 provides that the Cabinet shall resign when non-confidence is voted by the people's plebiscite. As the Cabinet is the representative of the Diet, it appears much more desirable for the provision to require the Cabinet to resign when non-confidence is voted by the Diet.

8. Justice, Sections 38 to 44. There is no provision directly authorizing the courts to declare acts of the Diet and orders of the Cabinet unconstitutional. In order to thoroughly safeguard individuals from abuses of the majority, it is very desirable to place this power in the courts. Polad translation of Section 40 reads: "The President of the Supreme Court shall be publicly appointed"; the ATIS translation reads: "The President of the Supreme Court is elected by popular vote". The same inconsistency in translation appears in relation to the President of the Administrative Court and the Prosecutor General in Section 42. Nearly all lawyers interviewed feel that many of the abuses in the administration of justice would be corrected if both the lower courts and the prosecutors attached to them were elected officials. There is no unanimity of opinion on the desirability of elected courts and prosecutors in the United States. As this Constitution provides for the election of the highest judges and the Prosecutor General, this should be adequate protection against domination of the courts and prosecutors by the bureaucracy.

Section 44 provides: "The State shall amply indemnify the person who is acquitted". It is strongly recommended that this section be deleted. Experience in Japan has shown that, in order to protect the State's funds, police and prosecutors will go to extreme lengths in obtaining confessions in order to avoid acquittals. It is believed that, so long as this provision remains, it is an added incentive to use illegal means to convict every person accused of crime.

9. Accounting and Finance, Sections 45 to 53. Section 50 provides that the second house may not veto items and amounts approved by the first house that appear in the budget. In view of Section 23, which permits the first house to pass all bills over the veto of the second house, no necessity for this restriction appears. If the second house were permitted to eliminate items, it would assure a more thorough consideration by the first house on re-submission.

10. Economics, Sections 54 to 61. The Polad translation of Section 55 is: "The private property and economic freedom of every individual shall be granted within this principle". The ATIS translation omits the word "property". There is no other provision in the Constitution inferring that private property will not be taken by the State except upon payment of just compensation.

11. Additional rules, Sections 62 to 66. Section 62 provides that the Constitution may be amended by a mere majority vote of both houses of the Diet, two-thirds of the members being present. The Constitution is the basic law of the land, and should be a document of reasonable permanence. It is suggested that amendments may be proposed in the method provided in Section 62, but such amendments must then be submitted to plebiscite of the people, and the amendment will become effective only upon receiving a majority of all ballots cast.

12. As appears in Tab "A", one of the past abuses of Government in Japan has been accomplished through the use of extra constitutional bodies. There is no prohibition of the formation of such bodies in the present Constitution. It is recommended that such a provision be required.

13. The Constitution omits entirely any reference to local government. Annex "C" to Tab "A" discusses this problem, and it is recommended that the Constitution provide for the election of the principal officials in prefectures and municipalities.

14. Outstanding Liberal Provisions.

a. The sovereignty of the people is acknowledged.

b. Discriminations by birth, status, sex, race and nationality are prohibited. The peerage is abolished.

c. Workers benefits required include one 8 hour day, holidays with pay, free hospitalization and old age pensions.

d. A referendum permitting the people to express their will directly on legislation is provided.

e. Control of all finances including expenditures of the Imperial family is placed in the Diet. Carry over budgets are prohibited. Audits are required and the President of the Audit Bureau is to be elected.

f. The right to possess property is limited by the requirement that it be useful to the public welfare.

g. Land must be used for the best public interest.

h. A new Constitution must be enacted in 10 years.

15. Summary.

The provisions included in the proposed constitution are democratic and acceptable. Certain essential provisions are omitted. It is recommended that the following principles be required in any constitution before approval:

a. A clear statement that the Constitution is the Supreme Law of the Land.

b. Additions to the Rights of the People to accomplish the following:

(1) Granting rights similar to those accomplished by a writ of habeaus corpus.

(2) Guaranteeing speedy and public trials in criminal cases.

(3) Prohibiting placing an accused twice in jeopardy for the same offence.

(4) Guaranteeing protection against self-in-crimination.

(5) Guaranteeing the right of an accused to be faced by all witnesses against him.

(6) Guaranteeing the accused the right to counsel on defense.

(7) Guaranteeing the people against unreasonable searches and seizures.

c. Clarify section 19 so that the exclusive power to legislate is clearly vested in the Diet.

d. Amend section 34 to require the Cabinet to resign on a vote of no confidence by the Diet.

e. Provide clearly the power in Courts to declare legislation unconstitutional subject to review by the Diet which can reverse on a 2/3rds vote of both houses.

f. Delete section 44.

g. Require that amendment to the Constitution can be effected only after receiving the approval of a majority vote of the people.

h. Require that no national government agency not responsible to the Diet or the Cabinet be created except by amendment to the Constitution.

i. Require provisions providing for the popular election of the principal officials of prefectures and municipalities.

Action prepared by: Lt. Col. Rowell.

COURTNEY WHITNEY, Brigadier General, U.S. Army, Chief, Government Section.