【PART 3】 The Mystery of the Security Treaty Village (1): The Showa Emperor and the Constitution of Japan
【32】 Imperial Constitution theory and Democratic Constitution theory
Despite knowing the true history, some intellectuals in Japan still say that “it does not matter who wrote the Constitution if the contents are good.”
But it does matter. The idea that it doesn’t is totally wrong. The Constitution is the principle, or the root and trunk, to govern a state. If there is an obvious lie in it, its branches and leaves will be messed up. And that has become the recent state of Japan.
What do you imagine of professors of a faculty of law at the University of Tokyo or Kyoto University? You probably think of one of the smartest and the most admirable persons. I have believed so for decades too. Do you know, however, what such admirable law scholars were discussing for a great deal of time after the war?
They discussed whether the Constitution of Japan is an “Imperial Constitution” or a “Democratic Constitution.”
Imperial Constitution theory is a “theory” that the Showa Emperor made the Constitution of Japan by revising the Meiji Constitution (the Constitution of the Empire of Japan). In fact, it takes a form that the Constitution of Japan was proposed by the Showa Emperor following the process of amending Article 73 of the Meiji Constitution, deliberated in the Imperial Diet and ratified by the Showa Emperor again at last.
You may think, “that looks all good then. Is there any problem?”
There is. A big problem. To see why, read the beginning of the preamble of the Constitution of Japan:
“We, the Japanese people, … do proclaim that sovereign power resides with the people and do firmly establish this Constitution.”
The subject is the Japanese people, and according to the preamble they established the Constitution. This is contradictory to the Imperial Constitution theory that “the constitution of Japan was made by the Showa Emperor revising the Meiji Constitution.”
Meanwhile, if we adopt the Democratic Constitution theory that the Japanese people newly established the Constitution, as the preamble of the Constitution states, it will be contradictory to the historical fact that the Showa Emperor proposed and ratified the amendment of the Constitution following the process required by the Meiji Constitution.
Thus, the faculties of law at the University of Tokyo (Democratic Constitution theory) and at Kyoto University (Imperial Constitution theory) came to a conflict squarely over the theories after the war. Despite the fact that the Constitution was actually written by GHQ, they made “theories” during the occupation period when the fact about GHQ was confidential under the censorship. Therefore, neither theory makes sense. (Invalidity of “the Constitution of Japan” by Tsunemi Koyama / Soshisha)
I felt very disappointed when I came to know about this “legal conflict” between the faculties of law at the University of Tokyo and Kyoto University. I wish I could not believe it… I wonder why scholars in social science are at such a low level, while there are world-class scholars in natural science in Japan.
Actually, there were some scholars that argued properly. For example, Tatsukichi Minobe, emeritus professor of the faculty of law (study of law and constitutional law) at the University of Tokyo. He stuck to his opinion even though his book was banned because of his theory, called “the theory of the Emperor as an organ of government.” He even got attacked by rightists with guns. It is admirable that he explicitly showed his disagreement with the draft at the deliberation on the draft Constitution of Japan at Privy Council.
At that time he declared, “According to the process (what is now in progress), the draft will be proposed to the diet by Imperial order and… the amendment (of the Constitution) will be approved by the Emperor’s ratification, but meanwhile it says the people establish the Constitution in the preamble of the Constitution, which is a total lie…. Democratic constitution should be drafted up by a convention of representatives of the people and decided by a referendum at last. The current process is deception and it is shameful as a nation to put such a lie at the begging of the Constitution.” (April 22, 1946)
This argument was quite right and matched the “global standard” of legal reasoning. It is admirable that he pointed out forthrightly that “there is an obvious lie in the Constitution” and advised that “if we try to make a democratic Constitution, it should be drafted at a convention of representatives of the people, and put to a referendum.”
At present, the mainstream constitutional scholars in Japan are making contradictory statements, advocating “constitutionalism” while saying “it is not an essential matter who wrote the Constitution.” Even junior high school students in France know such a debate is totally wrong. A modern constitution restricts the state power (which is constitutionalism) in the first place, so the occupation army–as an agent of forming a constitution–is out of the question, but also the Constitution should not be drafted by a government either.
We did not know that principle of constitutionalism, even when we became adults, since we have not been taught by anyone. But that is the first thing to be taught about a constitution at junior high schools or high schools all around the world.
In the end, Minobe was the only person who voted against the draft Constitution at the Privy Council.
The real tragedy in Japan is, however, that such logically right arguments at “global standard” are socially punished and gradually disappear, while illogical “theories” pandering to the Establishment survive without any criticism.