Subcommittee on Ideal Constitution as Supreme Law (Second Meeting)

Thursday, March 6, 2003

Meeting Agenda

Matters concerning the role of the Constitution as the supreme law ("Emperor as symbol" system: Emperor's authority and acts in matters of state)

After a statement was heard from Dr. SONOBE Itsuo concerning the above matters, questions were put to him; this was followed by discussion among members.

Informant

Members who put questions to Dr. SONOBE


Main points of Dr. SONOBE's statement

Introduction

>> The "Emperor as symbol" system is founded on the principles enunciated in the present Constitution. However, because the history and traditions which stand behind it cannot be ignored, it would be impossible to base this system solely on standard laws and legislation which define the rights and authority of organs of the state. Moreover, as this is a unique system, it is difficult to seek its ideal form from the perspective of comparative law. I would like to examine what the Emperor system should be by focusing on the existence of the Emperor today and his acts.

1. Constitutional Position of Emperor System

(1) Background of Emperor System: Historical Development of Multi-Faceted Aspects

>> Historically, the Emperor has provided the foundation for the organs of government and has functioned to confer legitimacy to power. The symbolic Emperor can be interpreted to mean that this "authority to confer legitimacy" has been delegated by the people to the Emperor.

>> The Emperor also functions as the exemplar of social norms, the conveyor and embodiment of culture and arts and sciences, and the successor to rites and rituals.

(2) Position and Functions of the Emperor under the Constitution of Japan and Systems of the Imperial Household

>> The present Constitution defines the Emperor's position as follows: (a) the Emperor is the symbol of the State; (b) the Imperial Throne is dynastic; (c) the Emperor derives his position from the will of the people. To maintain this position, the Constitution and the Imperial House Law contain provisions concerning acts in matters of state, succession, the Imperial family, and the economic status of the Imperial Household.

2. Functions and Acts of the Emperor

(1) Ideal Functions and Acts of the Emperor: Active and Passive Symbol

>> The ideal functions and acts of the Emperor should be examined from the perspectives of the concepts of active and passive symbol, while also considering current conditions. The concept of passive symbol posits that the Emperor is the symbol by the mere fact of his existence. On the other hand, the concept of active symbol posits that specific acts appropriate to a symbol must be identified and that, in order for the Emperor to function as a symbol of the State, certain situations must be prepared in which the Emperor will be able to execute his functions as symbol.

(2) Systemic Standards concerning Functions and Acts

>> The following standards concerning the acts of the Emperor can be identified: (a) As a standard derived from the principle of popular sovereignty, the Emperor must ultimately conform to the will of the people as expressed in the advice and approval of the Cabinet. (b) As a standard derived from the principle of symbolic Emperor, the Emperor must not involve himself in "narrowly-defined politics" (matters concerning government and order which are subject to debate among the people and whose outcome is indeterminate). (c) As a standard derived from the principle of dynastic succession, in the event the Emperor is unable to perform his duties, the functions of symbol of State must be performed by either a "regent" or a "temporary proxy in acts in matters of state" who in either case must be a member of the Imperial family.

(3) Ideal Functions and Acts and Implementation Standards: Theories of Categories of Acts

>> Of course, provisions pertaining to acts in matters of state must be precisely defined. However, thought must also be given to the status and role of the symbolic functions which the Emperor has performed in the postwar period which lie outside the scope of matters of state.

>> There are various theories for classifying the acts of the Emperor, such as the two-category and three-category theories. I personally subscribe to a five-category theory (acts in matters of state, acts as a public person, social acts, Imperial Household acts, and personal and individual acts). My five categories are based on an analysis of the value of the actual act derived from symbolic nature of the Emperor, as well as the allocation of expenses associated with the act and its characteristics.

3. Acts in Matters of State

(1) Categories of Acts in Matters of State

>> Acts in matters of state can be categorized based on the following criteria: (a) the correspondence between the functions of the Emperor and the specific act; (b) presence or absence of ritual.

(2) Symbolic Position and Acts in Matters of State

>> Acts in "matters of state" should be interpreted to mean acts pertaining to "narrowly-defined politics" as previously mentioned. Because the Emperor is a symbol, it is understood that his position as the source of authority in matters of government has been delegated to him by the people.

>> Rites and rituals conducted as acts in matters of state provide the people with an opportunity to visually comprehend the meaning of the contents of the act.

>> It is important for the Emperor to express himself as symbol of the State through acts in matters of state and public acts. Naturally, the Cabinet must accept responsibility for such acts of the Emperor. Regarding public acts, while I believe it is necessary to define the status of such acts as befits their meaning, due caution is called for. It would be unfitting to try to develop a finite list of public acts of the Emperor.

(3) Proxy

>> There is a clear difference between regent and a temporary proxy. The former is empowered without the express will of the Emperor, while the latter depends on the will of the Emperor. Acts in matters of state by either a regent or a temporary proxy requires the advise and approval of the Cabinet.


Main points of questions and comments to Dr. SONOBE

HIRAI Takuya (Liberal Democratic Party)

>> In view of the fact that the Emperor is considered by foreign countries to represent Japan, I believe the Emperor should hold the position of head of state. What is your view?

>> Under the current system, the Emperor is asked to "sanction" the appointment of the Prime Minister and others. The term "sanction" is inappropriate because it conveys the mistaken impression that the Emperor is making the appointments. What is your view?

>> You propose a five-category system for classifying the acts of the Emperor. What is the reason for that?


NAKANO Kansei (Democratic Party of Japan and Club of Independents)

>> The "Emperor as symbol" system is supported by the people and has taken root, and I believe there is no reason whatsoever to make changes regarding the Emperor system. Is there any problem if we do not have anyone who bears the title of "head of state?"

>> I believe that the firstborn should succeed to the throne and female succession should be recognized. Is there any problem with this under the present system? If there are any problems, what is the best way to go about revising the system?

>> When discussing the matter of the Emperor as the symbol of the people, I think we should keep our discussions, including the issue of succession, general and avoid gearing our discussions to the specifics of the current situation. What is your view?


SAITO Tetsuo (New Komeito)

>> In the former Imperial Constitution, the Emperor was understood to be the source of authority as the foundation of government, and to confer legitimacy to power. Does this understanding apply to the current Constitution?

>> Under the Constitution, the people are the primary source of authority, and the Emperor is a secondary source. As you have stated, in reality, I believe the source of authority resides in the Emperor system itself which exists in a historical context. How does this point relate to the structure of present Constitution?

>> Regarding the acts of the Emperor, you have advocated a "five-category theory" based on how the expenses associated with a certain act are to be borne. I would like you to once again explain the significance of categorization based on this criterion.


FUJISHIMA Masayuki (Liberal Party)

>> In comparison with foreign countries, do you think that the list of the Emperor's acts in matters of state contained in the Constitution is appropriate?

>> In relation to the fact that the Emperor can be characterized as head of state, would the introduction of the popular election of the prime minister under the present Constitution create some problems?

>> You stated it is unnecessary to rush to conclusion on the matter of the enthronement of an Empress. My position on succession is that we should immediately begin examining the issue because precise rules must be ready well ahead of time. What is your view?

>> Do you think the Imperial Family system should be left as it now stands?


YAMAGUCHI Tomio (Japanese Communist Party)

>> You have stated that the "Emperor as symbol" system should be understood in the context of the new principles enunciated in the present Constitution. What are these new principles? I believe the provisions regarding the symbolic Emperor derive from the expression of the principle of popular sovereignty and do not assign the position of source of authority to the Emperor.

>> Article 4 very strictly establishes that the Emperor is restricted to the performance of certain acts in the matter of state and is not empowered in matters related to government. What is the significance of this provision?

>> You have categorized the Emperor's acts in matters of state into three categories. It is important to note that these three categories have the following points in common: (a) responsibility for these acts rests with the Cabinet; (b) such acts are formal and ceremonial in nature. What is your view?

>> I believe that we should subscribe to a two-category theory whereby the acts of the Emperor are divided into acts in matters of state and all other acts. It is my impression that under the current interpretation of the Constitution, ambiguities concerning the acts of the Emperor have been directly transposed to how the system operates. Is there no criticism of this point in academic circles?

>> In your categorization of acts in matters of state, you used the expression "acts related to government." On what grounds or fundamental understanding do you base your choice of words?


KITAGAWA Renko (Social Democratic Party)

>> A very strict two-category approach to the acts of the Emperor should be adopted. The five-category theory that you propose only serves to create ambiguity and appears to be very close to the thinking of the Imperial Constitution. How do you respond to this?

>> Only such acts as are performed in matters of state constitute the acts of a symbolic Emperor. I think the people will find this interpretation far easier to understand. The five-category theory generates ambiguity about the acts of the Emperor and runs counter to the principle of popular sovereignty. What is your view on this matter?


INOUE Kiichi (New Conservative Party)

>> The symbolic Emperor performs acts in matters of state on the advice and approval of the Cabinet. As a practical problem, is there any room left for the Emperor to exercise his own discretion?

>> While the Emperor system is a system that is closely intertwined with a specific personality, there has been no discussion of abdication in the past. What is your position on establishing a system for abdication?

>> I find Article 1 defining the position of the Emperor to be very well written. I would like to ask the Informant whether the present wording could be improved in any way.


MORIOKA Masahiro (Liberal Democratic Party)

>> The Emperor today engages in a wide range of acts. Therefore, I believe the word "only" should be removed from Article 4 which presently reads: "The Emperor shall perform only such acts in matters of state...." What is your view on this?

>> Among various rites and ceremonies of the Imperial Court, I believe the Daijosai (post-enthronement thanksgiving) should be considered an act in matters of state and not a religious ceremony. What is your view?


BANNO Yutaka (Democratic Party of Japan and Club of Independents)

>> Regarding the functions and acts of the Emperor, I believe it would be better to develop some sort of negative rule, such as "passive function shall be a basic requirement for the Emperor to be a symbol." You have said that in order for the Emperor to perform an active role as symbol, "certain situations must be prepared in which the Emperor will be able to execute his functions as symbol." Specifically, what kind of situations do you have in mind?

>> In addition to categorizing the acts of the Emperor from the perspective of the Emperor, I believe that a categorization based on the receiving side of the Emperor's act is required. For instance, categories could be created on the basis of how the people or the world view the act. What is your opinion on this matter?

>> The Emperor is the symbol of the State and the current roster of acts in matters of state is already very time consuming. Detailed prescriptions of the acts of the Emperor would only make the Emperor busier. On the other hand, I think it would be desirable from the perspective of the Emperor to clarify the Emperor's public acts from the perspective of what such acts should and could be. What is your opinion on this matter?

>> Article 3 states: "The advice and approval of the Cabinet shall be required for all acts of the Emperor in matters of state." When the Cabinet has submitted its "advice," it is inconceivable for it to refuse to give "approval." Hence, I think the word "approval" is unnecessary. What is your opinion?


KONDO Motohiko (Liberal Democratic Party)

>> The general system of education will not suffice in training the firstborn who is first in the line of succession to develop the characteristics becoming of an Emperor. I feel that a special form of education, which may be called "imperial education," is needed. What is your view on this matter? If in fact a special education is required, does this not imply that the pros and cons of enthroning an Empress must be promptly discussed?

>> Addressing the opening of the 12th Session of the Diet in 1951, the Emperor stated that the completion of the signing of the Peace Treaty is a source of extreme happiness. This was criticized for being a political statement. What is your view of the political content of statements made by the Emperor?

>> By giving its advice and approval, the Cabinet accepts responsibility for the Emperor's acts in matters of state. Suppose a problem arises in connection with an act of the Emperor that is public in nature or has clear public overtones. Is the Cabinet also responsible in such cases? Supposing it is responsible, how would the Cabinet take responsibility?


Main points of comments by members of the Subcommittee (in order of presentation)

OKUNO Seisuke (Liberal Democratic Party)

>> The Informant stated that popular sovereignty is the source of the position of the Emperor. I feel that this may be misunderstood. With the British system in mind, General MacArthur assigned the position of "Head of State" to the Emperor. This term was not used only because when translated as "genshu," it would give rise to the misunderstanding that nothing had changed from the old Imperial Constitution. The expression "with whom resides sovereign power" was later added on the insistence of the Far Eastern Commission. It is my belief that the position of the Emperor is unclear under the present wording of the Constitution. Words to the effect of "position of the representative of the people" should be added.

>> In the enthronement ceremonies, "ceremonies of State" and "ceremonies of the Imperial Household" were separated in consideration of the provisions of Article 20 which states: "The State and its organs shall refrain from . . . religious activities." This separation has allowed the "traditions of the Imperial Court" to be preserved. However, it is my belief that Article 20 was written with the intent to undermine and to destroy the Shinto religion. The new constitution to be drafted should contain provisions which give due consideration to the "rites and ceremonies of the Imperial Household."


SHIMA Satoshi (Democratic Party of Japan and Club of Independents)

>> The Emperor's acts in matters of state are listed under Article 7. Regarding the wording of Paragraph 4, we should examine whether the expression "general election of members of Diet" should really be allowed to stand in its present form.

>> Article 7 item 3 of the Emperor's acts refers to the dissolution of the House of Representatives. Under Article 69, the conditions for dissolution are given as the passage of a non-confidence resolution, or rejection of a confidence resolution. Notwithstanding the provisions of Article 69, the House of Representatives has always been dissolved by decision of the Cabinet, and its authority to do so has been based on Article 7. The act of dissolution rises out of a conflict between the Diet and the Cabinet and should not be lumped together with the Emperor's acts in matters of state. The relations between the Emperor, the Cabinet and the Diet must be more precisely defined and clarified.


YAMAGUCHI Tomio (Japanese Communist Party)

>> Nowadays, the expression "Head of the State" which appears in the MacArthur Notes is normally translated as "toi" or "tobu." We would not be well served if we attempt to base our discussions of the MacArthur Notes on the term "genshu" (head of state).

>> Regarding the provisions for the dissolution of the House of Representatives, the provisions of Article 7 and Article 69 should be considered together.