7 January 1946
STATE-WAR-NAVY
COORDINATING COMMITTEE
DECISION AMENDING SWNCC 228
REFORM OF THE JAPANESE GOVERNMENTAL SYSTEM
Note by the Secretaries
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.
| ALEXANDER D. REID |
| B. L. AUSTIN |
| RAYMOND E. COX |
| Secretariat |
SWNCC 228
27 November 1945
Pages 1 - 14, incl.
STATE-WAR-NAVY COORDINATING
COMMITTEE
REFORM OF THE JAPANESE GOVERNMENTAL SYSTEM
Reference: a. SWNCC 209/D.
Note by the Secretaries
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.
| ALEXANDER D. REID |
| B. L. AUSTIN |
| RAYMOND E. COX |
| Secretariat |
ENCLOSURE
REFORM OF THE JAPANESE GOVERNMENTAL SYSTEM
Report by the
State-War-Navy Coordinating Subcommittee for the Far East
THE PROBLEM
1. To determine the constitutional reforms which the occupation authorities should
insist be carried out in Japan.
FACTS HEARING ON
THE PROBLEM
2. See Appendix "A".
DISCUSSION
3. See Appendix "B".
CONCLUSIONS
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.
RECOMMENDATIONS
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.
Enclosure
(Revised 7 January 1946)
APPENDIX "A"
FACTS BEARING ON THE PROBLEM
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.
*************************
"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."
APPENDIX "B"
DISCUSSION
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.