Report of preliminary studies and recommendations of Japanese Constitution

1. An analysis of the actual operation of government discloses many abuses of authority which permitted militarists to obtain control of the government and subvert it to their ends during the past two decades. Some of the means are readily apparent from the study of state documents. Others are disclosed only by knowledge of enforcement and operational methods.

2. The recommendations hereafter made are tentative only. Most of the material on which they are based was documentary though some was obtained by personal interviews. Further research by conferences with Japanese authorities on constitutional law particularly those of known liberal tendencies is strongly recommended.

3. Certain of the abuses which need control if democratic tendencies are to flourish are:

a. Lack of effective rights of individual citizens.

b. Extra constitutional bodies having access to the Emperor which are not responsible to the will of the people.

c. Direct control by the Emperor of the strength, organization and budget of the armed forces.

d. Control of the courts by the procurator as the representative of the Emperor's will rather than the judge holding such position.

e. Lack of control of all functions of government by a constitution.

f. A government not responsible to the will of the people.

g. Exercise of legislative functions by the executive branch.

h. Lack of authority in the people to amend or alter the constitution.

i. Centralized authority over local governments.

4. To eliminate the abuses in para 3, it is recommended

a. that constitutional revision be required;

b. that approval of this headquarters of any proposed constitution be required;

c. that such constitution be required to contain provisions accomplishing the elimination of these most flagrant abuses listed in para 3 by the incorporation of provisions as specified in the following annexes:

(1) Annex "A" Bill of Rights

(2) Annex "B" Responsive Government.

(3) Annex "C" Local Responsibility.

4. These conclusions and recommendations are not inflexible. The purpose is to furnish a tentative check list to provide a basis for conversations with authorities and governmental representatives. Any constitution proposed must be interpreted as a whole and the inclusion or exclusion of these recommendations will not be the sole determining factor of its suitability.



1. Facts.

a. The present constitution prevents arrest, trial, punishment, and searches, and permits freedom of religion, speech, assemblage and petition, but limits each by the phrase, "within the limits of law", thereby permitting the administrative branch to pass ordinances impairing or eliminating the individual rights purported to be granted.

b. Basic measures to achieve the objectives of the occupation include encouragement of democratic tendencies and modification of the authoritarian tendencies. Freedom of religious worship, opinion, speech, press and assembly not incompatible with the security of the occupational forces are to be insured.

2. Argument.

The Japanese Constitution is a reasonably permanent political document and the one least likely to be modified. The present constitution has not been amended since it was promulgated in 1889. If the constitution guarantees these rights without equivocation as the expressed will of the Emperor, it will be more difficult for any militaristic or ultra-nationalistic group to limit these freedoms in the future, particularly if enforcement of these rights is lodged in an independent judiciary.

3. Recommendations.

a. That any constitutional revision be required to contain a Bill of Rights guaranteeing to each subject:

(1) Freedom of religious worship.

(2) Freedom of thought, speech, press and assembly.

(3) Right to petition any agency or person for redress of wrongs.

(4) Inviolability of communications.

(5) Private property shall not be taken for public use unless reasonable compensation is paid therefore.

(6) Prohibition against involuntary servitude including compulsory labor for a term where payment in advance has been made. Note--Aimed at prohibiting sale of services of a minor daughter for a term of years.

(7) No person shall be arrested, except in case of hot pursuit, nor any private dwelling searched, except at the time of arrest, without a warrant issued by a court of competent jurisdiction.

(8) No ex post facto criminal law shall be valid.

(9) An accused shall be presumed innocent, shall have the right to counsel from the time of arrest, shall have the right to a speedy and public trial, shall not be placed in jeopardy twice for the same offense, and shall not be compelled to testify against himself. Upon the violation of any of the rights of the accused he shall be discharged and the charges against him dismissed with prejudice.

(10) The right of habeas corpus shall be granted and shall not be suspended except in time of war.

b. That the inclusion of the following matters in the constitution be encouraged but not required:

(1) Right of privacy particularly as applied to eavesdropping and constant inspection of homes by peace officers, except inspections authorized by statute.

(2) Freedom of educational institutions above the middle school level from governmental restrictions on curricula and instruction and non-interference in academic matters by the Ministry of Education or other administrative branch of government.

(3) Property shall not be subject to double taxation except the several governments (i.e. National, Prefectural and Municipal) may each tax the same property.

(4) Confessions obtained by force, duress or inducement shall not be admitted in evidence; a conviction cannot be had on the unsupported testimony of an accomplice; the testimony of an agent provocateur shall not be admitted in court. Note--The administration of justice in Japan is notorious for its reliance on confessions obtained by torture and the use of agents provocateur to induce crime by critics of the administration.

1. Facts.

a. At present there are many governing and policy making bodies (some of which are of great influence) that are organized outside the constitution and in no way responsive to the will of the people. Some of these bodies are:

(1) The Imperial Conference. It is not authorized by any written law but decides policy on the most important matters of state. It normally meets prior to commencement of war. Its composition is determined by the closest advisors of the Emperor and the people have no voice in its selection.

(2) The Lord Keeper of the Privy Seal. This office has now been voluntarily abolished.

(3) The Cabinet. Although its members are responsible for administration of law, it is not responsive to the people or their representatives. The Prime Minister is chosen by the Emperor, on advice of some close official such as the Lord Keeper of the Privy Seal, who then selects the balance of the Cabinet. The Cabinet has an influential position in legislation and complete control of administration. The organization of the Cabinet is not controlled by constitutional provisions. By requiring that the Minister of War be a general of high rank on active duty and a similar requirement for the Minister of Navy these Ministries have been able to control the composition of the cabinet and determine national policy.

(4) The Privy Council. This group is likewise not controlled by the Constitution. It acts as special advisor to the Emperor and greatly influences foreign affairs through its power to ratify treaties. It exercises great influence on the Cabinet and has so exercised its influence recently that it nearly controls Cabinet action. The Council in no manner is responsive to the will of the people or their representatives.

(5) The House of Peers. The composition of this body is determined by Imperial Ordinance. It is not answerable to the people or their representatives. This body may block measures passed by the elected house of the Diet. It represents the peerage and wealthiest taxpayers.

b. "The Emperor is the head of the Empire, combining in Himself the rights of sovereignty" Cons. Art. IV. In him, subject to minor restrictions resides the legislative and executive power, the organization and command of the Army and Navy, the power to make war and peace and conduct foreign relations. By reason of his importance, persons in positions of responsibility whom he consults have a great influence on conduct of government. As shown in a. above, most government officials having access to the Emperor have no responsibility to the people.

c. To achieve the objectives of the occupation it is necessary to strengthen democratic objectives, determine national government agencies which will be allowed to continue and favor changes by the Japanese of forms of government in direction of modifying feudal and authoritarian tendencies.

2. Argument.

a. The Imperial Conference and the Privy Council should not be allowed to continue to function if democratic tendencies are to flourish. As a feudalistic impediment to the expression of popular will to the Emperor they are comparable to the office of the Lord Keeper of the Privy Seal.

b. During the surgence of the Japanese Government toward democracy in the early 1920s the requirement that the War Minister and Navy Minister be high ranking generals and admirals on active duty was overcome for a short period. The militarists in effecting their rise to power readily swept aside this minor reform. Through their use of the listed extra constitutional agencies, particularly those having direct access to the Emperor, they were soon able to assume complete control of the government including domination of the lower House of the Diet.

c. While it is possible to prohibit the continuance of these extra-constitutional bodies by fiat such action will result only in the temporary elimination of these advisory groups and will not grant such access to governmental agencies responsive to the will of the public.

3. Conclusion.

That the most permanent change in the form of government which will modify feudal and authoritarian tendencies and strengthen democratic ones is the complete organization of government in all its phases stated in precise terms in the most basic document possible which in this case is the Constitution. This constitutional reform can be eliminated after the end of the occupation but it will be more difficult to eliminate than reforms by Imperial Ordinance. A Constitution being promulgated by the Emperor will be greatly respected by the people.

4. Recommendations.

a. That a complete revision of the Constitution be made setting up separate branches of government to perform legislative, judicial and executive functions.

b. That all extra-constitutional agencies having direct access to the Emperor be eliminated and a provision prohibiting the creation of such bodies be embodied in the constitution.

c. That direct access to the Emperor be expressly given to a limited number of government officials who are directly responsible to the people.

d. That to accomplish the foregoing recommendations the following provisions be required in any proposed constitution:

GENERAL

(1) That the Constitution is the supreme law of the land and will control all governmental acts.

(2) That the Constitution can be amended only by some process whereby consent of the representatives of the people is required.

(3) That the authority of the Emperor to suspend the Diet be limited to one time per year and then only for a short period such as 30 days; and that he may dissolve it only once per year in which event election must be held promptly (eg 30 days) and new Diet immediately convened.

(4) That only elected members of the Diet may hold positions in government which permit direct access to the Emperor on political matters.

(5) That governmental powers be divided into legislation, executive and judicial and each branch be exclusive in its field and be prohibited from delegating its powers.

LEGISLATIVE

(6) That the legislative branch be composed of one or two houses but that all members be elected.

(7) That the legislative branch have exclusive power to tax, to mint, to borrow and to appropriate funds; to determine size of armed forces; to set rates of pay; to ratify treaties; to approve constitutional amendments; to institute and try charges of impeachment.

(8) That power to adjourn by the Diet, both as to number of adjournments and duration of adjournment, should be limited.

(9) That the cabinet, being the ministers of state and responsible heads of the various executive departments, must be composed of elected representatives; must be answerable to the house and dissolve on vote of no confidence.

(10) That the Diet have sole authority to submit nominations to the Emperor of persons to form a cabinet.

(11) That appropriations be limited to a 12 months period which must expire within 18 months of date of passage of the budget. Prohibit budget provisions to carry over.

(12) That the Diet be granted authority to investigate the operation of any branch of government; to issue subpoenas and administer oaths; to petition the highest court for writs of Mandamus, Prohibition, and Quo Warrant.

(13) That if the Diet be authorized to delegate powers to a committee to act in its name that such authority be limited to matters other than legislation.

EXECUTIVE

(14) That the executive branch shall have jurisdiction to administer all the laws of the land; may make regulations for administration within limits set by Diet but no authority to impose penalties either physical or monetary.

JUDICIAL

(15) That the highest court be the exclusive representative of the Emperor in the interpretation of the constitution and laws and the adjudication of civil and criminal matters. The prosecutor shall represent the executive branch of government but not the Emperor.

(16) The highest court shall have jurisdiction over all disputes of any character including administrative matters.


1. Facts.

a. The present Japanese Government is an extreme form of centralized authority. In practice the national government, through the Home Ministry which controls the various branches of the police organizations, dominates the daily life of every subject. The legal provisions indicate a degree of independence of municipal governments and their representative form. Actually acceptable candidates for municipal office are indicated by the National Government, their election is assured by use of police organizations and if an office holder does not follow the desires of the national government after election he may be removed from office by the prefectural governor.

b. To achieve the objectives of the occupation it is necessary to encourage local responsibility, hold local elections, determine local agencies which will be allowed to continue to function, favor changes which modify feudal tendencies and strengthen democratic tendencies.

2. Argument.

a. Decentralization of jurisdiction and authority to local and prefectural government units will greatly strengthen democratic tendencies and encourage local responsibility.

b. As previously shown, the most permanent change will be accomplished by incorporation of basic principles in a constitution.

3. Recommendations.

a. That any revised constitution be required to contain provisions granting limited local autonomy to prefectures and municipalities.

b. That to carry out the above policy the following specific matters be required:

(1) The Diet is authorized to pass laws respecting internal affairs of prefectures and smaller governmental units only where such laws apply equally to all prefectures or to all smaller units within the same classification; or where the prefecture or smaller unit involves accepts the legislation of the Diet by an expression of the electorate or its elected representatives.

(2) Each prefecture and smaller governmental unit shall be guaranteed a representative form of local government including (a) a popularly elected assembly having exclusive authority to levy taxes, to borrow money, fix salaries of employees of the unit, and to appropriate funds; to buy, lease, improve, rent, sell mortgages and hypothecate property and revenues of the unit for local purposes; to own, lease, operate and grant franchises to operate for a term of years not exceeding a reasonable term (e.g. 40 years) public utilities for exclusively local purposes, if a franchise is granted the government agency must retain the power to regulate its rates; all legislative matters must be within the exclusive power of such assembly without power to delegate; (b) a popularly elected chief executive officials such as the governor or mayor, tax collector and treasurer.

(3) The National government shall have no authority to discharge or restrain the exercise of lawful authority of any duly elected local official except by impeachment proceedings or through court actions authorized by the constitution.

(4) The people shall be guaranteed the right to dismiss elected officials by a recall election.

c. No recommendation is presently made respecting the election of procurators.

d. No recommendation is presently made respecting the decentralization of the police force.