Subcommittee on Ideal Constitution as Supreme Law (First Meeting)

Thursday, February 5, 2004

Meeting Agenda

Matters concerning the role of the Constitution as the supreme law (the Emperor system, including research on the Imperial Household Law and other laws related to the Imperial Family)

After a statement was heard from Professor YOKOTA Kouichi concerning the above matters, questions were put to him. This was followed by free discussion among the members.

Informant

  • YOKOTA Kouichi, Professor, Faculty of Law, Ryutsu Keizai University, and Professor Emeritus, Kyushu University

Members who put questions to Prof. YOKOTA

Main points of Prof. YOKOTA's statement

1. The premises of the debate

>> The provisions concerning the Emperor in the Meiji Constitution and those in the present Constitution are fundamentally different in meaning.

>> The Emperor system must be understood along the lines laid down by the norms of the Constitution. Even if one takes a traditionalist position, any tradition that goes against the provisions of the Constitution must be rejected.

>> In my view, a strict distinction should be made between the Emperor's public and private acts.

2. The basic principles of the Constitution of Japan and the Emperor-as-symbol system

>> I do not regard the Emperor-as-symbol system as being in direct conflict with the principle of popular sovereignty, but it works to dilute the people's consciousness of their own sovereignty. Also, with regard to the principle of respect for fundamental human rights, in some ways the system conflicts with the ideal of human rights that does not allow discrimination based on birth.

3. The Emperor-as-symbol system in terms of constitutional norms

[1] Status

>> Sovereign power resides with the people, and the Emperor is a symbol of their unity. It should be noted that the word "symbol" has no legal meaning.

>> The "unity of the people" symbolized by the Emperor should be understood not as the unity of "the Japanese race" but as the unity of the various ethnic groups that make up the multiethnic nation of Japan. Also, "unity" is used here in a passive rather than an active sense.

[2] Powers

>> The Emperor's powers consist solely of the thirteen formal and ceremonial acts in matters of state stipulated by the Constitution; moreover, the advice and approval of the Cabinet is required for their performance, and there is thus no room for the exercise of the Emperor's own will.

[3] Foundation

>> The foundation of the symbolic Emperor system is the "will of the people" with whom sovereignty resides, and, accordingly, the system can be changed by constitutional amendment. Personally, I think that the present Emperor system is the most stable in Japan's history.

4. The main issues in the interpretation of constitutional norms

[1] Is the Emperor the head of state?

>> No powers can be inferred from the term "head of state." A head of state is the head of a nation's government and the nation's external representative. According to this definition, the Cabinet or the Prime Minister is the head of state.

>> Although certain acts of the Emperor do represent the nation, this is not sufficient reason to make the Emperor head of state. Further, the authority of the head of state has no legal meaning.

[2] Is Japan a monarchy?

>> The Emperor's status does not meet the following three conditions for a monarchy: (a) the throne is dynastic; (b) the monarch is a sovereign ruler; (c) the monarch represents the nation externally. Thus, Japan is neither a pure monarchy nor a pure republic. If I were forced to characterize the system, I would say that Japan is a republic with a hereditary Emperor.

[3] Is there a third category of the Emperor's acts, namely, "public acts"?

>> The Emperor does in fact perform many public acts other than acts in matters of state, and these are widely held to be constitutional. However, there is a strong attendant risk of unlimited expansion or political exploitation of the Emperor's public acts.

>> In my view, the Emperor's public acts should be limited to acts in matters of state, but it may be worth considering revision of item 10 in Article 7, "performance of ceremonial functions," in order to clarify its meaning.

[4] Mixing of public and private acts

>> The "public acts" of the Imperial Family cannot be explained in terms of the Constitution. Also, the religious ceremonies performed by the Imperial Family are thought to possibly violate the principle of separation of religion and the state, and the fact that the public sector and public employees are involved in these ceremonies blurs the distinction between public and private.

5. The unifying effect of the Emperor's public presence

>> Even the architects of the Meiji Constitution expected the Emperor not to wield power but to have the function of unifying the people.

>> Under the existing Constitution, the Emperor does not have sovereignty or powers related to government, but nonetheless the post-war Emperors can be said to have played a political role of a high order. This has been achieved through: (a) their symbolic value, (b) the dynastic nature of the throne, (c) acts in matters of state as a locus of symbolism, (d) public acts which complement the locus of symbolism, and (e) private acts that demonstrate the Emperor's ability to unify the people.

>> The trend in recent years toward treating the Emperor and the Imperial Family as celebrities, together with the steps they have taken to change or abolish traditions, thereby diminishing their authority, are leading to a weakening of the Emperor's ability to unify the people.

6. Female succession

>> The Imperial Household Law is subordinate to the Constitution. The Constitution stipulates only that the heir to the throne be a blood relation, stating that "The Imperial Throne shall be dynastic." Thus, the insistence on the traditional restriction to male descendants in the male line goes beyond the latitude of the Constitution.

>> There is no rational basis to any of the arguments put forward against female succession, whether on grounds of tradition, popular sentiment, or capability.

>> There is no need for a constitutional amendment to approve female succession to the throne; all that would be needed is a revision of the Imperial Household Law. Also, I do not foresee any problems with the order of succession and related matters, as long as the constitutional principle of equality of the sexes is upheld.

>> Female succession is strongly opposed by "traditionalists" who insist that only male descendants in the male line should succeed to the throne, but I wonder whether they would be prepared to accept the extinction of the Imperial system as a consequence.

>> Admittedly, in view of the continuing existence of sexism, recognizing female succession might lead to a further weakening of the capacity to unify the people that is vested in the throne.

Main points of questions and comments to Prof. YOKOTA

MORIOKA Masahiro (Liberal Democratic Party)

>> I am not opposed to female succession, but I believe we should approach the question cautiously. I think you are incorrect in stating that the Imperial Household Law, which prescribes succession by "male descendants in the male line," is unconstitutional on grounds of the principle of equality, given that the Emperor system is, in itself, an exception to the principle of equality. Would you like to comment?

>> Historically, there have been ten reigns by eight Empresses, but all were either widowed or unmarried, and their succession was treated as an act of necessity in an emergency. The Imperial line has never shifted to the female line of descent. Also, it seems to me that even if the public were willing to accept an Empress, public opinion has not matured to the point of accepting the principle of succession in the female line.

>> You objected to Article 10 of the Imperial Household Law, which states that the marriage of an Emperor "shall be passed by the Imperial Household Council." In monarchies overseas, however, the consent of parliament or a related body is often required before the monarch can marry. In my opinion, to allow male members of the Imperial Family to marry based only on the mutual consent of both sexes, as in the case of ordinary citizens, would be inappropriate from the viewpoint of Japanese identity; for one thing, it would raise the possibility of marriage to a non-Japanese. What are your views on this point?

>> Listening to your statement, I was struck by two issues in particular: (a) the question of succession in the female line, which would remain an issue even if female succession were approved; and (b) the status of an Empress's spouse. What are your views on these points?


OIDE Akira (Democratic Party of Japan and Club of Independents)

>> Lately, I sometimes hear it said that the concept of sovereignty is unnecessary, but I personally believe it is important, and I would like to hear your views in this regard.

>> The nomos theory of sovereignty holds that there is a proper course that no authority must overstep, and some people identify this nomos with the Emperor, but this is not appropriate. In my view, the important thing is the constitutionalist position that even the monarch must obey the constitution. What are your views on this point?

>> Some people argue that the existing Constitution is a constitution granted by the Emperor. What is your view in this regard?


AKAMATSU Masao (New Komeito)

>> Do you deny the existence of "public acts" which constitute a third category, i.e., which are neither private acts nor acts in matters of state?

>> In recent years, the lack of a "love of country" in Japan has become an issue, and some observers see a need to make express provision for this in the Fundamental Law of Education or in its superordinate law, the Constitution. What do you think should be done to clarify Japan's history, culture, and traditions?

>> What are your views on "nationalism without the Emperor?"

>> Some people say that before we recognize female succession to the throne, we should recognize adoption of an heir by revising Article 9 of the Imperial Household Law, which currently forbids it. What is your view on this point?


YAMAGUCHI Tomio (Japanese Communist Party)

>> In terms of constitutional norms, what is the significance of the Constitution's situating the Emperor under the principle of popular sovereignty?

>> I think the phrase "the will of the people with whom resides sovereign power" in Article 1 contains the possibility that the people may choose to abolish the Emperor system. What do you think is the significance of this?

>> Would I be correct in thinking that the symbolic Emperor system is a Japanese-style expression of the concrete embodiment of popular sovereignty?

>> Would you please give concrete examples of the problems that emerge when one examines how the Constitution has been implemented, with reference to its norms that deny the Emperor powers related to government and those that enumerate a limited number of acts in matters of state?

>> What do you think is the normative constitutional significance of the provision that the Emperor "shall not have powers related to government"?

>> What was the constitutional significance of the Mizuta-Okudaira debate over female succession, which began in 1985? Also, has this debate subsequently been followed up in academia?

>> What kind of efforts, or what course of action, do you think should be undertaken to close the gap between constitutional norms and reality?


DOI Takako (Social Democratic Party)

>> As I see it, since the Constitution does not explicitly rule out female succession, all that is needed to make it a reality is an amendment of the Imperial Household Law. Do any scholars advocate the view that it would be unconstitutional to recognize female succession? Also, am I correct in thinking that you yourself do not subscribe to that view?

>> Does the phrase "advice and approval" of the Cabinet in regard to the Emperor's acts in matters of state refer to two distinct items, "advice" and "approval," or should they be understood as a single unit, "advice and approval"?


SHIMOMURA Hakubun (Liberal Democratic Party)

>> You stated that it is not appropriate to interpret "symbol ··· of the unity of the people" as referring to "the Japanese race," but I cannot agree with this view when Japan is seen in a global context. Would you please comment on the phrase "symbol ··· of the unity of the people" and your reason for rejecting the interpretation "unity of the Japanese race."

>> I believe that, even in these times when the possibility of revising the Constitution is being discussed, Japan still has need of the Emperor-as-symbol system. Do you agree with this?


HAKARIYA Keikou (Democratic Party of Japan and Club of Independents)

>> In an era when Japan is said to be on the way to becoming a multiethnic nation, it is important to preserve what we might call the Japanese identity, that is to say, our history and tradition, and to pass it on to future generations. I believe that the Emperor system, which has no parallel in other countries, is a precious asset that will play a major role in this process. What are your views in this regard?

>> I believe that the national anthem and the national flag are important in unifying Japan's direction and goals. Do you agree?

>> Even if the Emperor is not a sovereign ruler, in light of the long history of the Imperial throne, would it not be possible to treat him as a kind of honorary head of state?


ONO Shinya (Liberal Democratic Party)

>> You mentioned that it is the government which bears duties and responsibilities, not the people, in a modern constitutional system. Does this mean that the Constitution of Japan, which contains provisions on the duties of the people, is undesirable from the viewpoint of a modern constitutional system?

>> Modern constitutional systems are said to be founded on the confrontation between monarch and citizens, who have entered into a contractual relationship, but this is not directly applicable to Japan. As I see it, in Japan the nation is composed of the harmonious sum of its statesmen and people. What is your view in this regard?

>> Given that the three great constitutional principles have gained acceptance over time, I think that the Constitution should serve to point the way to the future and to lead public awareness. Do you agree?

>> In your view, what methods are available to ascertain "the will of the people"?

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

FUNADA Hajime (Liberal Democratic Party)

>> I cannot agree with treating the symbolic Emperor system and fundamental human rights as if they should be weighed against each other. The hereditary Emperor system is a Japanese tradition and a historical fact, and I see no contradiction whatsoever in respecting this tradition and, at the same time, respecting fundamental human rights as a basic principle of the modern state.

>> The Emperor's "public acts" should be recognized, as they are meaningful as a complement to his status and role as a symbol. If there is any risk of these acts being exploited for political gain, the public should keep watch to ensure that this does not happen.

>> With regard to female succession, it is quite in order to respect the tradition and the historical fact of male succession in the male line. However, when public sentiment and the Emperor's functions are taken into account, the necessity to restrict succession to males is no longer as clear as it was in the past. However, I think it would be premature to recognize female succession in the female line.

YAMAGUCHI Tomio (Japanese Communist Party)

>> There are major differences between the members of this Subcommittee in terms of how we understand the constitutional norms and political realities relating to the provisions on the Emperor. If we were to give concrete form to the principle of popular sovereignty, it is vital that the clause which states that he shall not have powers related to government be rigorously observed, and those of his acts that are not acts in matters of state should be construed strictly as private acts.

>> In discussing "traditions" related to the Emperor system, we need to distinguish between those that date from the Meiji Restoration and the long-standing traditions that predate it. In discussing such things as ceremonial functions, also, we need to identify clearly those that were practiced under an absolutist Emperor system and those that originated with the Emperor's status as the symbol of popular sovereignty.

>> The debate on female succession should include discussion from a human rights perspective.

ONO Shinya (Liberal Democratic Party)

>> As a nation ruled by law, we should certainly place importance on the law's supremacy, but we need to take the debate back to first principles and recognize that law does not decide everything. Since there are aspects of the Emperor system that cannot be regulated by law, we should discuss how such things as tradition and culture should be respected.

OIDE Akira (Democratic Party of Japan and Club of Independents)

>> Listening to recent discussions of the Emperor system, I fear that we are returning to a debate that, as in the Meiji Period, emphasizes tradition, history, religion, and so on. The constitutional scholar MINOBE Tatsukichi held that the Meiji Constitution was wrongly interpreted and applied, but aren't we interpreting and applying the present Constitution wrongly today too?

>> I am in favor of female succession.

MORIOKA Masahiro (Liberal Democratic Party)

>> I am concerned by Prof. YOKOTA's statement that the Emperor-as-symbol system should not be maintained arbitrarily. Japan has long been governed by keeping the Emperor, as an authority figure, separate from those who possess political power. In thinking about the conduct of national affairs, we ought to value this wise idea of our forebears.