Fifth Meeting

Thursday, March 23, 2000

Meeting Agenda

1. Matters relating to the Constitution of Japan (Details of the formulation and enactment of the Constitution)

After hearing the opinions of Professor HASEGAWA Masayasu and Professor TAKAHASHI Masatoshi concerning the above matters, Commission members put questions to the two informants.

Expert Informants:

Members who put questions to Professor Hasegawa:

Members who put questions to Professor Takahashi:


Main points of Professor Hasegawa's statement

1. What is a constitution?

2. Fundamentals for examining the history of constitutions

>> The concept of sovereignty (its significance, conflict between monarchical sovereignty and popular sovereignty)

>> Principles for controlling state power (separation of powers, parliamentarianism)

>> Guarantee of freedom and rights of the individual

3. World constitutional history

>> 17th century: Constitutional conflict in England (English constitutional history up to the Glorious Revolution)

>> 18th century: Independence and establishment of the Constitution of the United States of America; French Revolution

>> 19th century: Constitutions of European countries (establishment of the Prussian Constitution and its relationship with the Meiji Constitution)

>> 20th century: The two world wars and constitutions in each country in the first half of the century (Russian Constitution; Eastern European countries after World War II; establishment of constitutions in colonies in Asia, Africa, etc.)

4. Constitutional history in Japan

(1) From the Meiji Restoration (1868) to the promulgation of the Meiji Constitution (1889)

>> Absence of a constitution; establishment of the totalitarian Emperor system

(2) From the promulgation of the Meiji Constitution to the acceptance of the Potsdam Declaration and signing of the instrument of surrender (1945)

>> Problems arising from the fact that the Meiji Constitution was not applicable to the Emperor and the military, etc.

(3) From the end of World War II to the return of Japan's independence (1952)

>> Who should be viewed as the makers of the Constitution of Japan?

(4) From the return of independence to the present

>> Problems of the current situation in which the provisions of the Constitution are not being observed

>> The contradictions inherent in debating revision of the Constitution in a situation where national sovereignty is in effect restricted under the Japan-US Security Treaty system.

Main questions put to Professor Hasegawa


ISHIBA Shigeru, Liberal Democratic Party

>> In your books, you have talked about the need to revise or abolish the present Constitution, which was established under the Allied Occupation. What is your current opinion about this? What do you think of the argument that a constitution enacted in an occupied country is invalid?

>> What is your view about the argument that the defects in the formulation of the Constitution were overcome through the positive attitude of the Japanese people after the end of the Occupation, which was in effect a "legal ratification" of the Constitution?

>> Aren't you taking contradictory positions by advocating protection of the Constitution on the one hand, and recognizing the defects inherent in its formulation on the other? And isn't it also contradictory for you, who advocate a socialist constitution, to support the Constitution of Japan, which is a capitalist constitution?

>> Is it your view that unless the Japan-US Security Treaty is abrogated and all US troops withdrawn from Japan, it cannot really be said that this country has completely recovered its sovereignty? Don't you think that the Japan-US Security Treaty arrangement is indispensable for the existence of Japan and the preservation of peace?


NAKANO Kansei, Democratic Party of Japan

>> You say that Japan has not completely recovered its sovereignty, but who has the legal authority to interpret the restoration of sovereignty? Isn't your opinion a political interpretation?

>> Who has the authority to determine whether or not the standards of the Constitution are being observed?

>> In order to solve problems relating to the Constitution, don't you think we should set up an institution that has the legal authority to make constitutional interpretations, like a German-style constitutional court (Bundesverfassungsgericht)?


HIRATA Yoneo, New Komeito and Reformers' Network

>> Please describe in detail how the Far Eastern Commission requested the inclusion of the provision that the Prime Minister and other Ministers of State must be civilians (Article 66, paragraph 2).

>> Was it theoretically possible for the Far Eastern Commission to take the view that Ashida amendment to the draft of Article 9 would make it possible for Japan rearm itself later?

>> If the Japan-US Security Treaty is revoked, do you hold that Japan should rearm itself or not?


FUTAMI Nobuaki, Liberal Party

>> Regarding national security, are you an advocate of the passive pacifism that calls for Japan to make no effort for its own security?

>> Would it not be a more clear-cut approach to revise the Constitution than to change the interpretation in order to deal with actual problems as they arise?

>> The absence in the preamble of any mention of fundamental human rights, one of the three key principles, seems to me a defect in the Constitution. What is your view on this?


HIGASHINAKA Mitsuo, Japanese Communist Party

>> What do you think of claims such as the "imposed Constitution" argument made by the so-called revisionists?

>> What is the historical background of the emergence of the revisionist argument?

>> How do you assess the current situation in Okinawa from the standpoint of the Constitution?


HOSAKA Nobuto, Social Democratic Party

>> Can you tell us your view on the current situation in Japan regarding the protection of fundamental human rights?

>> How would you compare the current debate on the revision of the Constitution with the debate at the time of the alliance of conservatives in the Liberal Party and the Japan Democratic Party to form the LDP in 1955?

>> What position do you take on the question of what was the main entity responsible for the establishment of the Constitution of Japan?


Main points of Professor Takahashi's statement

>> Study of the historical circumstances of formulating the Constitution of Japan from the viewpoint of jurisprudence

>> Types of approaches (if the formulation of the Constitution is considered mainly from the perspective of the acceptance of the Potsdam Declaration and conclusion of the Peace Treaty, four main viewpoints are traditionally identified: the constitutional revision theory, the invalidity theory, the August revolution theory, and the loss of validity theory)

>> The problems with each theory

>> Reconsideration of the legal validity of the Constitution of Japan (Legal validity does not spring from the attributes stemming from the procedures for enacting a law or its contents but from the environment - the will and various forces - supporting it. This supporting environment clearly existed with respect to the Constitution of Japan after the end of the Allied Occupation.)

Main questions put to Professor Takahashi

HOZUMI Yoshiyuki, Liberal Democratic Party

>> What is your assessment of the Constitution produced under the Allied Occupation?

>> Since the present Constitution contains sections that are vague as written law and parts that do not apply to the current situation, I think it is necessary to make changes in accordance with present circumstances. What is your view on this?

>> How can a popular consensus on the current problems concerning the people's rights and duties be incorporated into the Constitution?

>> What do you think about the view that, in aiming to create a society in which people can coexist harmoniously, we need to identify clarify the criteria for the restriction of human rights?


DOI Ryuichi, Democratic Party of Japan

>> What are your views on methods of determining the intersubjective will of the people (i.e. a consensus in the community) regarding the Constitution?

>> What do you think of the fact that the approval of two-thirds or more of all members in each House of the Diet and a national referendum are necessary for the revision of the Constitution?

>> Isn't "Chapter 1: The Emperor" flawed from the standpoint of the intersubjective will of the people?

>> What is your opinion concerning Article 89?


ISHIDA Katsuyuki, New Komeito and Reformers' Network

>> Doesn't the continued existence of the present Constitution after the end of the Occupation reflect the success of GHQ's national reconstruction program rather than the will of the Japanese people?

>> In what circumstances do you think it would be acceptable to revise the Constitution?

>> According to an opinion poll conducted by a certain newspaper, 53% of the people are in favor of constitutional revision. What is your view on this?

>> I think Article 9 was a reciprocal condition exchanged between the Japanese government, which wanted to maintain the Emperor system, and GHQ and that the preamble was prepared as a justification of this article. Do you agree?

>> Is it your view that, since the Constitution of the Empire of Japan was incorporated in GHQ's administrative ordinances as a subordinate legal framework during the Occupation, Japan did not have a constitution in the proper sense until it became independent again?


FUTAMI Nobuaki, Liberal Party

>> Can your view that the source of sovereignty under the Occupation was the Allied powers be seen as a revision of the August revolution theory?

>> What do you think of the view that the present Constitution was established to ensure that Japan never again became a threat to the United States?

>> What is your view on revision by means of interpretation?

>> I think that there is a gap between the ideal of perpetual pacifism and reality, and that revision of the Constitution is needed to fill that gap. Do you agree with this?

>> I think Article 9, paragraph 1 is an important provision, but rather than keeping the Self-Defense Forces in the shade because of Article 9, we should promote positive pacifism through their active participation in international peacekeeping operations. What is your view on this?


SASAKI Rikukai, Japanese Communist Party

>> The invalidity and loss of validity theories have all but disappeared in academic circles, but they continue to be espoused in the political world. What do you think of this situation?

>> It seems to me that your basic view is that you assess and deem appropriate the Constitution-making process based on the fact that the Constitution took root among the Japanese people after the conclusion of the Peace Treaty. Would this be a correct understanding of your view?

>> Isn't the just and fair nature of the Constitution also an important element underlying its validity?

>> Do you think it was possible to predicate the need for revision of the Constitution upon Japan's acceptance of the Potsdam Declaration?

>> What do you think of the view that the present Constitution took root because, even if the Japanese government felt that it had been imposed, the Japanese people did not have this impression?


HOSAKA Nobuto, Social Democratic Party

>> You said that the present Constitution has not been shaken either by internal or external forces. What is your view of the current situation?

>> Doesn't the large number of scandals involving public servants in recent years show that the spirit of the Constitution of the Empire of Japan has remained? How do you view this existence of the spirit of the old constitution within the current systems?

>> Isn't it true that there has not been discussion concerning the fundamental framework of the Constitution's adjective laws (i.e. those laws mentioned in Article 100, paragraph 2, as being necessary to put the Constitution into effect)?

>> Do you think it is necessary to investigate the process not only of formulating the Constitution but also the adjective laws?

>> What is your view regarding the relationship between public welfare and the restriction of human rights?

>> Please tell us about your view that the provision of Article 25, paragraph 1 has contributed to the creation of a welfare state?