【PART 3】 The Mystery of the Security Treaty Village (1): The Showa Emperor and the Constitution of Japan
【35】 Never touch the Constitution while any part of the territory is occupied
Post-war Japan’s legal basis has been very weak since our “study of law” was built upon concealing the fact that GHQ wrote the Constitution. There is a huge lie at the bottom of the constitutional controversy, where precise logic is needed more than anything.
One of the results is “the governing act doctrine” (see Part 1). Adopting this doctrine to human rights means to deny the separation of powers. Even children can understand that. It is axiomatic. In the current study of law in Japan, however, it is the “axiom” that cannot be argued.
Justices of the Supreme Court, prosecutors, professors of the faculty of law at the University of Tokyo…. If any of them had tried hard to deliberate at the global standard level, as Minobe did after independence, we would not now be facing such a miserable state of Japan. However, the reason why they, the professionals, could not maintain decent debates to the very end was the interference of an irrational, low-level “taboo.”
We have to learn from countries with developed social science such as Germany and France. As I explained in the beginning of this chapter, Japan has a wonderful culture, but it cannot be denied that political leaders are not good at thinking logically. What happened in Japan would never happen in Europe where political leaders can think logically.
Article 43 of the Hague Convention, respecting the Laws and Customs of War on Land (amended in 1907 and ratified by Japan in 1911), decided also the principle of “respect for law in occupied territory.” It stipulates that “the occupier will respect existing law in occupied land as long as there is no absolute problem.”
No matter how much pressure were put on European countries to follow a “Potsdam Declaration,” they would never accept the drafting of their constitution by an occupation army.
For example, Germany was as defeated a country as Japan. Even though it was in a more brutal situation–divided and occupied by four countries (the U.S., Britain, France, and the Soviet Union)–it did very well on the Constitutional issue.
In West Germany’s case, there were military governors of an occupation army (American, British, and French). The situation was the same as Japan’s, in that West Germany was pressured to “reform the Constitution” by following the plan of the occupation army. There was also a plan to surround the capital with U.S. bases, as is the case now in Japan. It was a matter of course, because the primary goal of the post-war policy was to prevent two enemy countries, Japan and Germany, from ever rising against the Allies.
However, political leaders and intellectuals in Germany were smart. They did not make an official constitution during the occupation period, no matter how many times they were told to. Instead they composed a “temporary constitution” in the form of Basic Law (Basic Law for the Federal Republic of Germany). This was done under the authority of the Parliamentary Council in May 1949, when they became independent. Article 146 says, “This Basic Law shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.” They determined to establish an official Constitution only when the country, split at that time into East and West, reunified. (Despite the later unification, however, Basic Law continues.)
France did well too, though it was not a defeated country. France had been occupied by Germany during WW2. This gave rise to the constitutional principle that “it is impossible that any revision process (of the Constitution) can be started or continued when the whole territory or any part of it is occupied by a foreign army” (Constitution of the Fourth Republic, Article 94).
This article makes good sense.
“Never touch a constitution when any part of the territory is occupied.”
This common sense is found in every other constitution in the world. If Japan had such common sense, intellectuals would have opposed without question creating a constitution before ending the occupation. Of course they would have opposed as well the situation in Okinawa, where 500,000 Japanese residents cannot send representatives to the Diet.