Reform of the Japanese Governmental System(SWNCC228)

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COPY NO. 66

7 January 1946


1. At its 32nd meeting, the State-War-Navy Coordinating Committee approved SWNCC 228, after amending.

2. Holders of SWNCC 228 are requested to destroy page 3 by burning, renumber pages 4 through 13 to read 5 through 14 and insert the revised pages 3 and 4.

TOP SECRET

COPY NO. 66

SWNCC 228
27 November 1945
Pages 1 - 14, incl.


1. The enclosure, a report by the State-War-Navy Coordinating Subcommittee for the Far East, is circulated for consideration by the Committee.

2. A copy of this report has been forwarded to the Joint Chiefs of Staff for their comment from a military point of view. The comments of the Joint Chiefs of Staff will be circulated to the Committee upon receipt thereof from the Secretary, Joint Chiefs of Staff.



1. To determine the constitutional reforms which the occupation authorities should insist be carried out in Japan.


2. See Appendix "A".


3. See Appendix "B".


4. It is concluded that:

a. The Supreme Commander should indicate to the Japanese authorities that the Japanese governmental system should be reformed to accomplish the following general objectives:
(1) A government responsible to an electorate based upon wide representative suffrage;
(2) An executive branch of government deriving its authority from and responsible to the electorate or to a fully representative legislative body;
(3) A legislative body, fully representative of the electorate, with full power to reduce, increase or reject any items in the budget or to suggest new items;
(4) No budget shall become effective without the express approval of the legislative body;
(5) Guarantee of fundamental civil rights to Japanese subjects and to all persons within Japanese jurisdiction;
(6) The popular election or local appointment of as many of the prefectural officials as practicable;
(7) The drafting and adoption of constitutional amendments or of a constitution in a manner which will express the free will of the Japanese people.
b. Though the ultimate form of government in Japan is to be established by the freely expressed will of the Japanese people, the retention of the Emperor institution in its present form is not considered consistent with the foregoing general objectives.
c. If the Japanese people decide that the Emperor Institution is not to be retained, constitutional safeguards against the institution will obviously not be required but the Supreme Commander should indicate to the Japanese that the constitution should be amended to conform to the objectives listed in a above and to include specific provisions:
(1) That any other bodies shall possess only a temporary veto power over legislative measures, including constitutional amendments approved by the representative legislative body, and that such body shall have sole authority over financial measures;
(2) That the Ministers of State or the members of a Cabinet should in all cases be civilians;
(3) That the legislative body may meet at will.
d. The Japanese should be encouraged to abolish the Emperor Institution or to reform it along more democratic lines. If the Japanese decide to retain the Institution of the Emperor, however, the Supreme Commander should also indicate to the Japanese authorities that the following safeguards in addition to those enumerated in a and c above would be necessary:
(1) That the Ministers of State, chosen with the advice and consent of the representative legislative body, shall form a Cabinet collectively responsible to the legislative body;
(2) That when a Cabinet loses the confidence of the representative legislative body, it must either resign or appeal to the electorate;
(3) The Emperor shall act in all important matters only on the advice of the Cabinet;
(4) The Emperor shall be deprived of all military authority such as that provided in Articles XI, XII, XIII, and XIV of Chapter I of the Constitution;
(5) The Cabinet shall advise and assist the Emperor;
(6) The entire income of the Imperial Household shall be tuned into the public treasury and the expenses of the Imperial Household shall be appropriated by the legislature in the annual budget.
5. Only as a last resort should the Supreme Commander order the Japanese Government to effect the above listed reforms, as the knowledge that they had been imposed by the Allies would materially reduce the possibility of their acceptance and support by the Japanese people for the future.

6. The effectiveness of governmental reforms in preventing the resurgence of military control in Japan will depend in a large measure upon the acceptance by the Japanese people of the entire program. In the implementation of allied policy on the reform of the Japanese Government, the Supreme Commander for the Allied Powers must take into account the problems of sequence and timing, as well as measures which might be adopted to prepare the Japanese people to accept the changes, in order to insure that the reforms are lasting in strengthening representative government in Japan.

7. This paper should not be released for publication. The eventual release of a statement of allied policy on the reform of the Japanese Government should be coordinated with the Supreme Commander for the Allied Powers in order not to impede the accomplishment of such reforms in Japan itself.


8. It is recommended that:
a. Upon approval by the State-War-Navy Coordinating Committee of the conclusions in paragraph 4 above:
(1) The report be forwarded to the State, War and Navy Departments and the Joint Chiefs of Staff for information; and
(2) Forward SWNCC 228, as amended, to the American Representative on the Far Eastern Commission for his guidance in negotiations with other members of the Commission on the formulation of an Allied Policy on the reform of the Japanese Government.
b. No Part of this report be released to the press at present.

(Revised 7 January 1946)


1. The Potsdam Declaration provides 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.
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"The occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives [as set forth in the Potsdam Declaration] 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."
2. The Allied note of August 11 to the Japanese Government stated that:
"The ultimate form of government of Japan shall, in accordance with the Potsdam Declaration, be established by the freely expressed will of the Japanese people."
3. One of the ultimate objectives of the United States in regard to Japan is stated in... "United States Initial Post-Defeat Policy Relating to Japan," to be:
"To bring about the eventual establishment of a peaceful and responsible government which will respect the rights of other states and will support the objectives of the United States as reflected in the ideals and principles of the Charter of the United Nations. The United States desires that this government should conform as closely as may be to principles of democratic self-government but it is not the responsibility of the Allied Powers to impose upon Japan any form of government not supported by the freely expressed will of the people."


1. The Potsdam Declaration stipulates that the occupying forces shall not be withdrawn from Japan until a "peacefully inclined and responsible government" has been established. Past declarations of the United Nations, and the clear intention of the Allies permanently to eliminate Japanese practices and institutions which have made that country a danger to other nations, clearly indicate that that stipulation refers not merely to the particular Japanese Government which the Allies recognize prior to withdrawal, but also to the nature of Japan's governmental institutions. Although "the ultimate form of government of Japan" is to be determined by the "freely expressed will of the Japanese people," the Allies, in accordance with the above provision and as a part of their over-all program for the demilitarization of Japan, are fully empowered to insist that Japanese basic law be so altered as to provide that in practice the government is responsible to the people, and that the civil is supreme over the military branch of the government.

2. The existing Japanese governmental system, resting on the Constitution, the Imperial House Law, basic statutes and Imperial Ordinances supplementary to the Constitution, and customs and practices observed virtually as law, has shown itself unsuited to the development of peaceful practices and policies primarily by reason of the defects described in the following paragraphs.

3. The Absence of an Effective System of Responsibility of the Government to the People.
a. There are of course several ways in which this responsibility may be effected. In the United States the executive government is directly responsible to the President, who is himself elected by the people and is limited by the judicially enforced Constitution from encroaching upon the rights of the judiciary and the Congress. In Great Britain the executive government is nominally responsible to a hereditary monarch, but actually it is responsible to the House of Commons, which is elected by the people. While in theory the power of the Parliament is absolute, in practice it recognizes the independence of the courts and certain rights of the executive.
b. The present Japanese Constitution was drawn up with the dual purpose of, on the one hand, stilling popular clamor for representative institutions, and on the other, of fortifying and perpetuating the centralized and autocratic governmental structure which its framers, the Meiji leaders, believed necessary for Japan's continued existence and development in the modern world. Consistent with this latter purpose, power was retained in the hands of a small group of personal advisors around the Throne, and the people's elected representatives in the Diet were given only limited supervisory powers over legislation. When a Cabinet falls the new Prime Minister, who selects his own Cabinet, is appointed by the Emperor not automatically from the leadership of the majority party in the Lower House but on the recommendation of these advisors, originally the Genro and more recently a council of former prime ministers. The nature and composition of a new government, consequently, was determined by the balance of forces around the Throne rather than by the majority view in the Lower House.
c. This lack of responsibility of the Cabinet to the Lower House was also the result of the Diet's limited powers over the budget. The Constitution provides (Article 71) that if a budget is rejected by the Diet, the budget of the preceding year automatically goes into effect. Consequently, even though the Prime Minister failed to win a vote of confidence in the Lower House he knew that he was assured of a budget equal at least to that of the current year.
d. Although the passing of general laws pertaining to the internal affairs of the nation are within its province, in practice most bills are introduced by members of the Cabinet, in whose selection the Diet has no part. The power to declare war, make peace, and conclude treaties are Imperial prerogatives over which the Parliament can exert only the most indirect influence because of its inability to control the Cabinet and the Privy Council which, together with the Keeper of the Privy Seal, the Minister of the Imperial Household and others close to the Throne, advise the Emperor on these matters. The Diet has no power over dynastic affairs, it cannot initiate amendments to the Constitution, it cannot convene of its own accord, and it may be prorogued for a period up to fifteen days any number of times during a session by the Emperor on the advice of the Prime Minister.
e. Although the Diet possesses indirect means of impressing its views upon the government which have proven more effective in practice than the direct controls, budgetary or otherwise, at its disposal, even these indirect methods have been of limited value. Its power to address the Throne or make representations to the government has little practical significance, because neither is bound to respond to its representations. Its power to establish committees of inquiry on any matters of state is limited by its inability to compel the attendance of witnesses. Interpellations and questions from the floor can embarrass a Cabinet, and have been among the Diet's most effective weapons, but ministers are free to make evasive replies or to refuse to answer at all on the ground of "military security" or "diplomatic security" or as "contrary to public interest." Although both Houses are empowered by custom to pass resolutions on matters within their jurisdiction, and resolutions of no confidence by the Lower House prior to 1931 frequently led to the resignation of a cabinet or of the ministers thus censured, such resolutions have also frequently led to the dissolution of the House and a new election which, although it supported the House against the government, was not followed by the latter's resignation. Nevertheless, during the past fifteen years, criticism of the government from the floor or in address or representation resolutions have been virtually the only means by which members could hope to influence policy.
4. The Dual Nature of Japanese Government which Permits the Military to Act Independently of the Civil Government and of the Parliament.
a. The supreme command of the army and navy, and the power to determine their peacetime standing, are stated in the Constitution to be among the Emperor's prerogatives. This has been interpreted by the military services to mean that they are responsible solely to the Emperor and may act independently of the Cabinet and the Diet in matters of military concern. Only in matters of major importance have they felt obliged to seek the Emperor's approval, frequently interpreting and expanding that approval to suit their own ends. The right of direct access to the Emperor possessed by the chiefs of Staff and the Ministers of the Army and Navy, a privilege enjoyed by the Prime Minister but by no other member of the Cabinet, has been an indispensable condition of the services' independence of action.
b. The ability of the military to affect government policy both within and without the area of their assigned responsibilities is further enhanced by the provision, based on an Imperial Ordinance of 1898, that the Minister of War and the Minister of the Navy must be a general or a lieutenant-general or an admiral or vice-admiral respectively on the active list. This provision has been repeatedly used by the military services to overthrow an existing cabinet by requiring the resignation of the Minister of War or the Minister of the Navy or to prevent the formation of a new Cabinet by the refusal to permit eligible officers to fill these posts. Divided responsibility between the military and civil authorities in the Japanese Government, beside giving the services undue weight in the determination of policy, has on numerous occasions prevented the civil government, which of its own accord might have acted in good faith, from fulfilling its international commitments.
5. The Excessive Power of the House of Peers and the Privy Council.
a. Except for the fact that financial bills must be initiated in the Lower House, and that the Lower House may be dissolved by the Emperor at any time whereas the Upper House can only be prorogued, the legislative powers of both Houses are the same. Inasmuch as the House of Peers is composed approximately one-half of the nobility, one-fourth of persons elected by and from the highest taxpayers, and one-fourth of Imperial appointees, it equal powers with the popularly elected Lower House gives representatives of the propertied and conservative classes in Japan an undue influence on legislation.
b. The Privy Council, composed of a president, a vice-president, twenty-four councilors appointed by the Emperor for life, and the members of the cabinet ex officio, serves as the supreme advisory body to the Emperor. The ordinance defining its powers, promulgated in 1890, stipulated that generally speaking its advice was to be solicited by the Emperor only on constitutional questions, international treaties and agreements, and prior to the issuance of emergency Imperial ordinances. Gradually, however, the Council has extended its activities and increased its power until in recent decades it has come to resemble a "third chamber," with broad supervisory powers over the executive in both foreign and domestic matters. It has frequently opposed the Cabinet on policy questions, and on several occasions has forced the downfall of Cabinets possessing the confidence of the Diet. Owing no political responsibility to the Diet or to the people for its activities, and yet exerting important influence over the entire affairs of the state, the Privy Council as presently constituted has proved an important barrier to the development of a sound parliamentary system.
6. Inadequate Provision for the Protection of Civil Rights.
a. The Japanese people have been deprived in practice, particularly during the past fifteen years, of many of the civil rights guaranteed them in the Constitution. Qualification of the constitutional guarantees by the phrase "except in the cases provided by law" or "unless according to law" has permitted the enactment of statutes involving wholesale infringement of these rights. At the same time Japanese courts have shown themselves subservient to social, even if not to direct governmental, pressures, and have failed signally to administer impartial justice.
b. To rectify this situation, General MacArthur, on October 4, 1945, ordered the Japanese Government to abolish all measures which restricted freedom of speech, of thought and of religion and to report to him by October 15, 1945, on all steps which had been taken to assure civil rights to the people.
c. In one other respect the Japanese Constitution falls short of other constitutions in its guarantee of fundamental rights. Instead of granting those rights to all persons it stipulates that they shall apply only to Japanese subjects, leaving other persons in Japan without their protection.
7. To have lasting value and hence to be most effective, the constitutional and administrative reforms necessary to correct the defects in Japan's governmental system should be initiated and carried into effect by the Japanese Government out of a desire to eliminate elements of the national structure which have brought Japan to its present pass and to comply with the provisions of the Potsdam Declaration. Failing such spontaneous action by the Japanese, the Supreme Commander should indicate the reforms which this Government considers necessary before it can consider a "peacefully inclined and responsible government" to have been established in Japan, a condition of the occupation forces' withdrawal. Only as a last resort should a formal instruction be issued to the Japanese Government specifying in detail the reforms to be effected.
8. The combination of new provisions in the Constitution that (1) the government shall be responsible to an electorate based upon wide representative suffrage, (2) that the executive branch of government shall derive its authority from and be responsible to the electorate or to a fully representative legislative body and (3) when a Cabinet loses the confidence of the representative legislative body it must resign or appeal to the electorate would ensure the development of a truly representative government responsible to the people. This direct responsibility of the government to the people would be further strengthened by conferring full budgetary powers on the representative legislative body. If the government lost the confidence of the representative legislative body, it would be forced to resign at the end of the fiscal year because of the lack of funds.
9. Explicit provision in the Constitution for the guarantee of fundamental civil rights both to Japanese subjects and to all persons within Japanese jurisdiction would create a healthy condition for the development of democratic ideas and would provide foreigners in Japan with a degree of protection which they have not heretofore enjoyed. The position of a representative legislative body would be further strengthened by granting to the Diet the right to meet at will and allowing any other organ of the government only a temporary veto over legislative measures approved by the legislative body, including amendments to the constitution. The popular election or local appointment of as many of the prefectural officials as practicable would lessen the political power formerly possessed by the Home Minister as a result of his appointment of governors of prefectures. At the same time it would further encourage the development of genuinely representative local government.
10. Although the authority and influence of the military in Japan's governmental structure will presumably disappear with the abolition of the Japanese armed forces, formal action permanently subordinating the military services to the civil government by requiring that the ministers of state or the members of a Cabinet must, in all cases, be civilians would be advisable.
11. While this Government is anxious to encourage the Japanese either to abolish the Imperial Institution or to reform it along more democratic lines, the question of the retention of the Imperial Institution will have to be left to the Japanese to decide for themselves. If the Imperial Institution is retained, many of the changes recommended above, such as the provisions for the direct responsibility of the government to the people through granting full budgetary powers to the representative legislative body and the requirement that only civilians serve as ministers of state or the members of a Cabinet in all cases, will go far towards reducing the power and influence of the Imperial Institution. Further safeguards must be established to prevent the resurgence of "dual government" in Japan and the use of the Emperor by nationalistic and militaristic groups to threaten the future peace in the Pacific. Those safeguards should include provisions that (1) the Emperor act in all important matters only on the advice of the Cabinet, (2) the Emperor be deprived of all military authority such as that provided in Articles XI, XII, XIII and XIV of Chapter I of the Constitution, (3) the Cabinet shall advise and assist the Emperor, (4) the entire income of the Imperial Household shall be turned into the public treasury and the expense of the Imperial Household shall be appropriated by the legislature in the annual budget.
12. There are a number of desirable reforms in the Japanese governmental system which have not been specified in the conclusions, such as strengthening of the prefectural and municipal assemblies, and revision of the election laws to eliminate dishonest election practices. It is further believed that measures to strengthen the local assemblies and effect a thoroughgoing reform of the election system can be safely left, and would be better left, to be initiated by a genuinely representative national government at Tokyo, whose establishment the reforms specified in this paper should ensure. Elections during the occupation period will, presumably, be adequately supervised by the occupation forces.