The Constitution of Japan and the UN Charter were fraternal twins: “2nd period behind closed doors—30 hours”



Y: It is well known that 25 members of the Government Section, mainly Colonel Kades, wrote the draft constitution behind closed doors, spending nine days from Feb 4 to 12, 1946. That book reveals the details.
But, after that, Japan and the U.S. negotiated for 30 hours to finalize articles, from the morning of March 4th to 4pm on the 5th, again behind closed doors.


Y: Mr. Tatsuo Sato, the head of the Cabinet Legislation Bureau back then, handled almost everything by himself and wrote about it in his autobiography.

It says a draft revision by Japan was changed back to the original by the U.S. At the end, Courtney Whitney offered to shake hands and saying thank you when it was all done. Mr. Sato wondered which country he was making the Constitution for.
Afterwards, the whole process of making articles was carried out as GHQ planned.

H: Japan accepted it in a Cabinet meeting even before they translated it, right?

Y: Yes, acceptance was before the actual articles were written.
But the approval in the Cabinet meeting on the 26th is important because on that day, the Far Eastern Commission (FEC) was to be established. Until then, the Japanese occupation had been controlled mostly by U.S. Forces, but there were complaints from countries like the USSR. So the FEC, consisting of 11 countries including the USSR, was founded in Washington to become the top decision-making body for Japanese occupational policies. After Feb 26, their decisions were to be prioritized over GHQ decisions, so GHQ had to hurry to draft the Constitution.

T: They had to decide by then.

Y: On February 1, Kades submitted a report on Constitution reform to MacArthur. It was about what legal power they would have under Constitutional reform. What they actually did was pretty outrageous, but they never forgot to follow the legal logic in order to keep their legal power.
They did that thoroughly. In the report, they wrote that they could do whatever they wanted until the 26th, and therefore could draft the Constitution. After that the FEC’s decisions were to take on higher priority. But they reported that they would still have the right to decide whether to confirm the Constitution handed in by Japan even after the 26th.
Since the U.S. committee drafted the Constitution among themselves, made us accept it by the 26th, and then assumed the role of judging the Constitution as accepted by Japan, their acts were legal.

H: But it’s unreasonable that the Cabinet approved it even before the articles were finalized in Japanese.

T: That’s because they didn’t want the Constitution to reflect the FEC’s intention.

Y: This is where the issue of the Emperor system comes in. If left to the FEC to decide, it may have been abolished. In that sense, though the Constitution was imposed on us, you can say Japan and the U.S. collaborated in hurrying to save the emperor. They did it to save the Emperor system, which was what the majority of our citizens wanted. This complicates the situation.
Another significant detail is that February 1, the day when Kades stated the Americans would write the constitution draft themselves, was also the day that the 1st Military Staff Committee was convened for the establishment of UN forces. February 1 was the historic day when of the 1st UN Security Council Resolution was proposed.
The most important detail to consider in examining the Japanese Constitution is that it was written in relation to the UN Charter. It’s essential, therefore, to know about the UN Charter in order to understand the process of the Constitution’s creation and its limits. But books on the Charter are very rare in Japan.

T: Right. Most people have probably never read it cover to cover.

Y: There ought to be an easy introductory book.

T: Yes, to explain how it was created. The Charter may appear briefly in International Law textbooks, but I’ve never seen a full introductory book on it.

Y: Professor Toshiki Mogami of Waseda University has a book on it, but such books are rare. That’s because it’s inconvenient for supporters of the Security Treaty, who are the vast majority in Japan today.