🏯Japanese Law and Government Unit 2 – Constitutional Framework of Japan

Historical Background

• Japan's current constitution, the "Postwar Constitution", came into effect on May 3, 1947, replacing the pre-war Meiji Constitution
• The Postwar Constitution was drafted under the Allied Occupation, led by the United States, following Japan's defeat in World War II
  • General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP), played a significant role in the drafting process
• The Meiji Constitution, adopted in 1889, established a constitutional monarchy with the Emperor as the sovereign head of state
  • Under the Meiji Constitution, the Emperor held supreme political authority, and the parliament (Diet) had limited powers
• The Postwar Constitution introduced significant changes, such as the sovereignty of the people, the symbolic role of the Emperor, and the renunciation of war
• The drafting process of the Postwar Constitution involved both American and Japanese officials
  • The Government Section of SCAP, headed by Brigadier General Courtney Whitney, prepared the initial draft
  • Japanese officials, including the Cabinet and the Diet, reviewed and made amendments to the draft before its final adoption
• The Postwar Constitution aimed to democratize Japan's political system and prevent the country from engaging in future wars
• The constitution has not been amended since its adoption in 1947, despite ongoing debates about potential revisions

Key Constitutional Principles

• The sovereignty of the people is a fundamental principle, stating that the authority to govern comes from the people, not the Emperor (Article 1)
• The constitution establishes a parliamentary democracy with a bicameral legislature (Diet) consisting of the House of Representatives and the House of Councillors (Article 41)
• The Emperor is defined as the "symbol of the State and of the unity of the people" and holds a ceremonial role without political power (Article 1)
• The renunciation of war, also known as the "peace clause", prohibits Japan from maintaining armed forces or using force to settle international disputes (Article 9)
  • This principle has been interpreted to allow the existence of the Self-Defense Forces for defensive purposes
• The separation of powers is ensured through the independence of the legislative, executive, and judicial branches (Articles 41, 65, and 76)
• The constitution guarantees fundamental human rights and freedoms, such as equality before the law, freedom of speech, and freedom of religion (Chapter III)
• The rule of law is upheld, with the constitution as the supreme law of the nation, and all laws and government actions must conform to it (Article 98)
• Local self-government is recognized, granting autonomy to prefectures and municipalities in managing their affairs (Chapter VIII)

Structure of Government

• The constitution establishes a parliamentary system with a bicameral legislature called the Diet (Article 41)
  • The House of Representatives (lower house) is elected by popular vote and has a term of four years, unless dissolved earlier (Article 45)
  • The House of Councillors (upper house) is elected by popular vote and has a fixed term of six years, with half of its members elected every three years (Article 46)
• The Prime Minister, who is the head of government, is appointed by the Diet from among its members and must maintain the confidence of the House of Representatives (Article 67)
  • The Prime Minister has the power to appoint and dismiss Cabinet ministers, who are collectively responsible to the Diet (Article 66)
• The Emperor, as the symbol of the state, performs ceremonial duties such as appointing the Prime Minister (based on the Diet's designation) and promulgating laws (Article 6)
• The judiciary is independent, with the Supreme Court as the highest court in the land (Article 76)
  • Judges are appointed by the Cabinet, except for the Chief Justice of the Supreme Court, who is appointed by the Emperor based on the Cabinet's designation (Article 79)
• The constitution provides for a system of local self-government, with prefectures and municipalities having elected assemblies and governors or mayors (Articles 92 and 93)
• The Board of Audit, an independent institution, is responsible for auditing the financial accounts of the government (Article 90)

Fundamental Rights and Freedoms

• The constitution guarantees equality before the law, prohibiting discrimination based on race, creed, sex, social status, or family origin (Article 14)
• Freedom of thought and conscience is inviolable, ensuring the right to hold and express personal beliefs and opinions (Article 19)
• Freedom of religion is guaranteed, with the separation of religion and state (Article 20)
  • No religious organization shall receive privileges from the state or exercise political authority
• Freedom of assembly, association, speech, press, and all other forms of expression are guaranteed (Article 21)
• The right to vote and to be elected to public office is granted to all adult citizens, regardless of race, creed, sex, social status, family origin, education, property, or income (Article 15)
• The right to own or hold property is inviolable, and property rights shall be defined by law (Article 29)
• The right to maintain the minimum standards of wholesome and cultured living is guaranteed (Article 25)
• The right to receive an equal education correspondent to one's abilities is guaranteed (Article 26)
  • Compulsory education shall be free

Constitutional Amendments

• The constitution provides a process for amendments, requiring a two-thirds majority in both houses of the Diet and a majority approval in a national referendum (Article 96)
• Amendments cannot infringe upon the fundamental principles of the constitution, such as the sovereignty of the people and the renunciation of war (Article 97)
• Despite ongoing debates about potential revisions, particularly regarding Article 9 (the "peace clause"), no amendments have been made to the constitution since its adoption in 1947
• Supporters of constitutional revision argue for clarifying the legal status of the Self-Defense Forces and allowing Japan to play a more active role in international security
• Opponents of revision emphasize the importance of maintaining the constitution's pacifist principles and express concerns about the potential erosion of democratic values
• The high threshold for amendments, requiring a two-thirds majority in both houses and a national referendum, has contributed to the difficulty in achieving constitutional revisions
• Public opinion remains divided on the issue of constitutional revision, with surveys indicating varying levels of support and opposition depending on the specific proposed changes

Judicial Review and Interpretation

• The constitution establishes the Supreme Court as the highest judicial authority, with the power to determine the constitutionality of laws, orders, and regulations (Article 81)
• Lower courts, such as High Courts, District Courts, and Summary Courts, also have the authority to interpret and apply the constitution in specific cases
• The Supreme Court has been relatively restrained in exercising its power of judicial review, with few cases resulting in the invalidation of laws or government actions
  • This approach is often described as "judicial passivism" or "judicial self-restraint"
• The Supreme Court has interpreted Article 9 (the "peace clause") to allow the existence of the Self-Defense Forces for the purpose of self-defense, while maintaining the prohibition on the use of force to settle international disputes
• The court has also interpreted the constitution to protect individual rights and freedoms, such as the right to privacy and the freedom of expression
  • However, the court has allowed certain restrictions on these rights when deemed necessary for public welfare or social order
• The doctrine of "political questions" has been applied by the courts, limiting their involvement in matters considered to be within the discretion of the political branches (e.g., the Diet and the Cabinet)
• Constitutional scholars and legal experts have debated the appropriate role of the judiciary in interpreting and applying the constitution, with some advocating for a more active approach to protect individual rights and check government power

Contemporary Challenges

• The debate over constitutional revision, particularly regarding Article 9 and the role of the Self-Defense Forces, remains a significant political issue
  • Proponents argue for clarifying the legal status of the Self-Defense Forces and allowing Japan to contribute more actively to international security efforts
  • Opponents emphasize the importance of maintaining the constitution's pacifist principles and express concerns about the potential erosion of democratic values
• The aging population and low birth rates pose challenges to the sustainability of the social security system and the provision of welfare services guaranteed by the constitution
• Balancing the protection of individual rights and freedoms with the need for public safety and social order has been a recurring theme, particularly in the context of new technologies and security threats
  • For example, the government's response to the COVID-19 pandemic raised questions about the balance between public health measures and personal freedoms
• Addressing income inequality and ensuring equal access to education and employment opportunities, as guaranteed by the constitution, remain ongoing challenges
• The constitution's gender-neutral language and the guarantee of equality before the law have prompted discussions about the need for further measures to promote gender equality in practice
• The role of the Emperor and the Imperial Family in contemporary Japanese society has been a subject of debate, particularly regarding the succession rules and the participation of female members in official duties
• Strengthening local self-government and promoting decentralization, as envisioned by the constitution, has been an ongoing effort to enhance the autonomy and responsiveness of local authorities

Global Comparisons

• Japan's constitution is considered unique among developed democracies due to its explicit renunciation of war and the maintenance of armed forces (Article 9)
  • In contrast, many other countries' constitutions recognize the right to self-defense and the existence of military forces
• The constitution's emphasis on the symbolic role of the Emperor and the sovereignty of the people distinguishes it from constitutional monarchies like the United Kingdom, where the monarch retains certain political powers
• Japan's parliamentary system, with a Prime Minister chosen by the legislature, is similar to other parliamentary democracies such as the United Kingdom, Canada, and Australia
  • However, Japan's bicameral legislature, with both houses directly elected by the people, differs from some other parliamentary systems where the upper house is appointed or indirectly elected
• The constitution's comprehensive guarantee of fundamental rights and freedoms is comparable to other liberal democracies, such as the United States and European countries
  • However, the interpretation and application of these rights by the Japanese courts have sometimes been more restrained compared to other jurisdictions
• The high threshold for constitutional amendments in Japan, requiring a two-thirds majority in both houses of the Diet and a national referendum, is more stringent than many other countries
  • For example, in the United States, amendments require a two-thirds majority in both houses of Congress and ratification by three-fourths of the states
• Japan's constitution has served as a model for other countries in the Asia-Pacific region, particularly those that have undergone democratic transitions or constitutional reforms in the post-World War II era
  • For instance, the constitutions of South Korea and Taiwan have incorporated principles similar to Japan's, such as the sovereignty of the people and the protection of individual rights
• Comparative constitutional studies have highlighted the importance of understanding the historical, political, and cultural contexts that shape the development and interpretation of constitutions in different countries