Subcommittee on Ideal Constitution as Supreme Law (Fourth Meeting)

Thursday, May 8, 2003

Meeting Agenda

Matters concerning the role of the Constitution as the supreme law (Meiji Constitution and the Constitution of Japan: Formulation Process of the Meiji Constitution)

After a statement was heard from Prof. BANNO Junji concerning the above matters, questions were put to him.

Informant:

Members who put questions to Prof. BANNO

Main points of Prof. BANNO's statement

Introduction

>> In the past, there have been two "standard" versions of the history of the development and enactment of the Meiji Constitution: the constitutional history of the Freedom and People's Rights Movement dating from the submission of the Tosa Memorandum, which called for the establishment of a representative national assembly in 1874, and the constitutional history of the pro-establishment side dating from the 1881 constitutional opinions of INOUE Kowashi. I find the following problems in these approaches: (a) sufficient thought has not been given to the relation between the two versions; (b) sufficient thought has not been given to the relation between the formulation process of the constitution and the actual problems that arose in the application of the Meiji Constitution.

1. Features of the Meiji Constitution

>> The following points can be identified from the interpretations of the Meiji Constitution as contained in such materials as ITO Hirobumi's "Commentaries on the Constitution of the Empire of Japan" and MINOBE Tatsukichi's "Lectures on the Constitution."

(a) Regarding the sovereignty of the Emperor and the existence of restrictions on this sovereignty, various interpretations were given for the contradictions between Articles 1 and 4, and between the first and second parts of Article 4.

(b) Articles 5 and 37 are understood to define the legislative powers of the Emperor. These articles refer to the kyosan of the Imperial Diet, which in the English text of the Constitution has been translated as "consent." This leads to the inference that legislative powers basically resided in the Imperial Diet.

(c) The Emperor is given the power to determine the organization and peace standing of the Army and Navy (Article 12). This provision invited various interpretations, ranging from the position that, as in the case of the Emperor's right of supreme command, this constituted an independent right, to the position that it represented an administrative function for which Cabinet "advice" was required.

(d) Regarding the "independent responsibility of Ministers of State" (Article 55), this was interpreted to mean that individual Ministers of State were independently responsible. On the other hand, judging from the Cabinet administration system established immediately after the promulgation of the Meiji Constitution, there are some grounds for interpreting this to mean that the Ministers of State were jointly responsible.

>> The diversity in the interpretation of the Meiji Constitution can be attributed to the following conditions affecting its formulation process.

2. Three Concepts of the Meiji Constitution

>> The basic outline of the Meiji Constitution was already clearly visible in the IWAKURA Tomomi's "Fundamentals of the Constitution" (July 1881) which was virtually written by INOUE Kowashi. Furthermore, IWAKURA's "Fundamentals" was in effect a conservative re-writing of "Personal Proposals for a Constitution" (April 1881) written by FUKUZAWA Yukichi and other members of Kojunsha. Because these "Fundamentals," the basis for the writing of the Meiji Constitution, incorporated extremely liberal thinking, the Constitution resulted in a wide range of interpretations.

>> Among other groups which played an important role in the formulation process of the Meiji Constitution, mention should be made of the left wing of the Liberal Party. Led by UEKI Emori and others, this group subscribed to the separation of the Cabinet from the political parties which stood as representatives of the will of the people (doctrine of the separation of government administration and the people).

Conclusion

>> By 1881, the Meiji Constitution was ready in draft form as based on various liberal proposals. However, because ITAGAKI Taisuke did not subscribe to the notion that the majority party should be the ruling party, ITAGAKI deferred the role of forming a government to ITO Hirobumi. Because of this development, 33 years had to pass before discussions of a parliamentary cabinet system were re-started in earnest.

>> Consequently, although the "independence of the supreme command" was considered to be an exceptional provision of the Meiji Constitution, the liberal forces were left without sufficient time to revise the interpretations of the Constitution and to restrain the military which thereafter went out of control.

>> MINOBE Tatsukichi advocated the approach of liberalizing the application of the Meiji Constitution via the process of "revision through interpretation." However, because he accepted the independent standing of the power of supreme command, MINOBE proved powerless in restraining the military.

Note: Prof. BANNO indicated that the following should be consulted for further details: "The Constitution and Politics of Modern Japan (Rethinking the Formulation of the Meiji Constitution)," final lecture delivered on January 21, 2003 at the Faculty of Law and Economics of Chiba University as reprinted in the Chiba University Journal of Law and Politics, Vol. 18, No. 1 (commemorative issue marking the retirement of Prof. BANNO Junji; forthcoming: June 2003).


Main points of questions and comments to Prof. BANNO

MORIOKA Masahiro (Liberal Democratic Party)

>> I get the impression that there was a considerable gap between the structural features of the Meiji Constitution and how the Constitution was actually applied. Did the problems of the Meiji Constitution lie in its structure, or were the problems caused by the individuals responsible for its application? I would like to hear your frank views on this matter.

>> The Meiji Constitution provides extraordinary powers to the Emperor, such as the emergency powers prescribed under Article 31, while the Constitution of Japan simply defines the Emperor as a symbol. As seen in this case, it seems to me that the gaps which exist between the two Constitutions are far too extreme. What are your views on this matter?


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

>> What was the mentality of those involved in formulating the Constitution? Were they principally interested in transforming the nation from a feudal state to direct rule of the Emperor, or were they more concerned with bringing the country up to international standards? Finally, what changes occurred thereafter in the mentality of those involved in formulating the Constitution?

>> The Meiji Constitution employs the term genshu (head of the Empire). When did this term come into being in Japan? If the term genshu in the Meiji Constitution had been replaced with some other term, would this have caused any problem?


ENDO Kazuyoshi (New Komeito)

>> Would it be possible to say that SAKAMOTO Ryoma's Senchu Hassaku ("Eight Proposals") is the source of the basic outline and concepts of the Meiji Constitution?

>> A key point in the formulation process of the Meiji Constitution is that the Imperial Diet was formed after the promulgation of the Constitution. I believe the normal order of matters would have been to convene a constitutional assembly to deliberate upon and enact a constitution. What is your view concerning this reversal of order?

>> The military went out of control under the Meiji Constitution. Some argue that this failure was due to problems which existed in the Constitution itself, while others claim that the problem lay in the mode of application of the Constitution. What is your view?


FUJISHIMA Masayuki (Liberal Party)

>> What led Japan to the war of the Showa Era? In my opinion, the "independence of supreme command" provided for in the Meiji Constitution was not as important a factor as contemporary popular support and the direction of the nation which, for instance, were affected by the growing confidence of the nation and the military as engendered by victory in the Russo-Japanese War. What is your view?

>> The Meiji Constitution eventually came to be placed on a pedestal as an "immutable code of laws." But what was the thinking of those involved in its formulation? Did they believe that the Meiji Constitution should remain untouched throughout future generations, or did they think that it was possible it would be revised?

>> Can it be said that the status of the Emperor as defined under the Meiji Constitution was patterned after the contemporary British monarchy?

>> I think the role of the Imperial Diet could have been emphasized more in the operation of the Meiji Constitution. What is your view?


YAMAGUCHI Tomio (Japanese Communist Party)

>> The informant stated that the "Meiji Constitution was the collaborative product of INOUE Kowashi and FUKUZAWA Yukichi." I would like to ask about the political background and realities which resulted in this collaboration.

>> ITO Hirobumi was well aware of the contradictions of the Meiji Constitution. Nevertheless, he went out of his way to attach an addendum to Article 4 of his "Commentaries on the Constitution of the Empire of Japan" to state that Japan could not accept European constitutional and monarchical models. This underscores his tendency to base his interpretations on the doctrine of the divinity of the Emperor. MINOBE Tatsukichi was similarly aware of contradictions, but he adopted interpretations which effectively shelved these contradictions. In your opinion, why did this occur?

>> What were the features of the Meiji Constitution's provisions concerning the "rights of subjects?"


KITAGAWA Renko (Social Democratic Party)

>> I believe the Meiji Constitution was enacted following debate among a small group of leaders. How did the people living under the Meiji Constitution view the Constitution which had been created in this manner?

>> I would like to hear your views on the following matters under the Meiji Constitution: the gap between the Constitution and enacted laws; the relation between the Constitution and enacted laws; and, how the Constitution was applied.

>> Article 99 of the Constitution of Japan provides for the "obligation to respect and uphold" the Constitution. The Meiji Constitution contained no such provision. In your opinion, what position did the members of the Imperial Diet take on respecting and observing the provisions of the Meiji Constitution?


INOUE Kiichi (New Conservative Party)

>> After a constitution has been written, with the passage of time, various discrepancies begin to appear between the constitution and contemporary realities. It is the role of interpretation to adjust for these discrepancies. A far wider scope of interpretation applies to a constitution as compared with the standard body of laws. What is your view on this matter?

>> Suppose a proposed constitutional amendment fails to win the support of "two-thirds or more of all Members of the Diet," but is supported by 60%. In such a case, it is my belief that the proposed amendment can in effect be instituted through the process of interpretation. What is your view?


HIRABAYASHI Kozo (Liberal Democratic Party)

>> What impact did international concerns, such as the issue of the revision of unequal treaties, have on the formulation of the Meiji Constitution?

>> I believe the constitutional histories and political histories of both the Meiji Constitution and the present Constitution of Japan need to be examined from the perspective of international relations. What is your view on this matter?

>> Under the system of the Meiji Constitution, political power and responsibilities were dispersed and assigned in considerable detail among the Privy Council, Genro (the elder statesmen), the House of Peers and the military. Consequently, the Hara Cabinet, Japan's first party-based Cabinet, experienced extreme difficulties when it was formed. Was it the original intent of the Meiji Constitution to combine a highly-dispersed power structure with the absolute sovereignty of the Emperor?


SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)

>> Why did the Meiji Constitution not contain the concept of a "cabinet?" What is the source of the justification of political power under the Meiji Constitution?

>> Article 55 of the Meiji Constitution contains no mention of a prime minister of the cabinet and does not go beyond the term "Ministers of State." Given the condition in which individual Ministers of State represented the interests of their respective ministries, it seems that no integration of political power could have resulted. Moreover, under this system, the Minister of Finance exercised full control over the budget process, such that budget-making authority virtually constituted an independent power. What is your view of this situation which existed under the Meiji Constitution?


HIRAI Takuya (Liberal Democratic Party)

>> The Meiji Constitution and Imperial Household Law were at the core of the "Meiji constitutional system" which basically was never revised since being initially established. What were the causes of this "rigidity of the Meiji constitutional system?" It can be said that the present Diet Law, Cabinet Law, Public Offices Election Law and other laws are extrapolations of similar laws from a previous age, such as the Imperial Diet Law, the Ministers of State system, and the House of Representatives Election Law. Furthermore, the present Constitution of Japan may contain in its supplementary laws and modes of application certain aspects of the Meiji Constitution. If so, the "rigidity of the Meiji constitutional system" persists and has yet to be eliminated. What is your view on this matter?

>> It is my belief that it is very difficult to maintain flexible fiscal management under the current system of single-year budgeting. From this perspective, I have a keen interest in the fiscal provisions of the Meiji Constitution concerning such matters as off-budget expenditures and carrying over expenditures over fiscal terms. In your opinion, what were some of the problems of the fiscal system as provided under the Meiji Constitution?