【PART 3】 The Mystery of the Security Treaty Village (1): The Showa Emperor and the Constitution of Japan

 

【39】 Before the Far Eastern Commission is organized, make a Constitution in the form that the Japanese created

 

But the story did not, in fact, end there. The key person at the time was Charles Kades, a colonel known for his cleverness and a lawyer by profession. I met him 20 years ago.

He was the one who served as supervisor while GHQ drafted the Constitution. Right before drafting began, on February 1, 1946, Kades submitted to MacArthur a report titled “Constitutional Reform.” It examined the question of “what legal authority General MacArthur has over constitutional reform” when the establishment of FEC was just around the corner.

The existing report has General Courtney Whitney’s signature. He was a chief of Government Section (GS), while Kades was deputy manager. Kades said later that “I wrote it and submitted it to General MacArthur with Whitney’s approval and signature.”

He testified later that “we came to the conclusion (in the report) that we have the authority to make the Constitution of Japan” (Historical Record of Occupation 3 edited by Jun Eto/Kodansha).

The report is summarized in the following four points.

  1. General MacArthur has the authority to decide a policy of constitutional reform of Japan.
  2. But the authority is valid only until Far Eastern Commission is organized.
  3. After the establishment of Far Eastern Commission, General MacArthur’s order on the constitutional reform will not be binding if any one of Britain, the Soviet Union, or the Republic of China disagrees.
  4. But the “order” means “a forced order by General MacArthur to the Japanese government” and it does not include giving approval to a draft constitution submitted by the Japanese government.

The italic parts are very important for understanding why GHQ drafted the Constitution. In simple terms, MacArthur had authority to do anything regarding the constitutional reform of Japan until the day of the first convening of FEC, planned for February 26. (→ Until then GHQ had a legal right to make a framework of the draft and make the Japanese government accept it.)

And, GHQ would not be able to do anything if any one of the main countries (Britain, the Soviet Union or the Republic of China) disagreed after the establishing of FEC, but no one could interfere in the process of MacArthur’s approving the draft constitution proposed by the Japanese government. (→They had the legal right to let the Japanese government make a draft in Japanese after the Japanese government accepted GHQ’s draft, and they retained control of the contents by giving approval to each article.)

That is what Kades said.