A Constitution is an aggregate of fundamental principles or established
precedents that constitute the legal basis of a polity, Organisation or other
type of entity, and commonly determine how that entity is to be governed.
Constitutions concern different levels of organizations, from sovereign
countries to companies and unincorporated associations.
A treaty which
establishes an international Organisation is also its constitution , in that it
would define how that organization is constituted. Generally every modern
written constituting confers specific powers on an organization or institutional
entity, established upon the primary condition that it abides by the
constitution's limitations. The Japanese Constitutional theory is built on the
proposition that Pacifism, Popular Sovereignty and the guarantee of fundamental
human rights are the foundations of the Constitution. This article emphasizes
that these principles lie at the heart of an understanding of both the Japanese
constitution and Japan's democracy.
This article examines the role of these
three principles in Japanese Constitutional culture and how the principles in
Japanese Constitutional Culture and how the principles serve as a guide for
Speculation about the future of the Japanese Constitution.
The term Constitution comes through French from the Latin word Constitutio, used
for regulations and order, such as the imperial enactments (constitutions
principis: edicta, mandata, decreta, rescripta). According to Scott Gordon, a
political Organization is Constitutional to the extent that it contains
institutionalized mechanisms of power control for the protection of the
interests and liberties of the citizenry, including those that may be in the
minority. In 61 BC, a scribe named Draco codified the cruel oral laws of the
city –state of Athens; this code prescribed the death penalty for many offences.
Aristotle (350 BC)was the first to make a formal distinction between ordinary
law and constitutional law, establishing ideas of constitution and
constitutionalism, and attempting to classify different forms of constitutional
government. The most basic definition he used to describe a constitution in
general terms was the arrangement of the offices in a state. In his works
Constitution of Athens ,Politics and Nicomachean Ethics, he explores different
constitutions of his day, including those of Athens, Sparta and Carthage. He
classified both what he regarded as good and what he regarded as bad
constitutions, and came to the Conclusion that the best Constitution was a mixed
system including monarchic, aristocratic and democratic elements. The Romans
first codified their constitution in 450 BC as the Twelve tables.
The Constitutions can be classified into different categories such as federal
constitutions or unitary constitutions; republican constitutions or monarchical
constitutions. Japan has a non- republican unitary constitution which states
that the Emperor of Japan shall be the symbol of the state and the unity of the
people ,deriving his position from the will of the people with whom resides
sovereign power. It further states that the imperial throne shall be dynastic
and succeeded to in accordance with the Imperial House law passed by the
Britain too has a hereditary head of the state but the ruling
King or Queen of Britain is only a ceremonial head of State without any
effective political power. Constitutionalism is one of the most important
theories of Political Science. It has a history of over two thousand years. The
famous work of the Greek philosopher Aristotle on Politics was the result of his
years-long study on a large number of constitutions which existed in the Greek
city states or Republics of his time. In fact, a constitution ,is the source,
the jurisprudentially fountain head from which other laws must flow, succinctly
The Supremacy of the constitution lies mostly in its
indestructible nature. The great Roman Orator, Cicero, said , the Chief law is
Public good. The Constitution as the ‘grund norm' should be interpreted
according to current societal standards. Complete Justice or true Justice must
encompass within its morality and ethics. Japanese Constitution mainly focuses
on the principles of Pacifism, Popular Sovereignty and the guarantee of
fundamental human rights.
Important features of the Constitution of Japan:
Meiji Constitution, Constitution of Japan from 1889 to 1947.After the Meiji
Restoration (1865),Japan's leaders sought to create a constitution that would
define Japan as a capable, modern nation deserving of western respect while
preserving their own power. The resultant document, largely the handiwork of the
genro (elder statesman) Ito Hirobuni, called for a bicameral parliament (the
Diet) with an elected lower house and a prime minister and cabinet appointed by
The emperor was granted Supreme control of the army and navy. A Privy council
composed of the Meiji genro, created prior to the constitution, advised the
emperor and wielded actual power. Voting restrictions, which limited the
electorate to about 5 percent of the adult male population, were loosened over
the next 25 years, resulting in universal male suffrage. Political parties made
the most of their limited power in the 1920s , but in the 1030s, the military
was able to exert control without violating the constitution.
After World war II,
a U.S approved constitution stating that Sovereign power resides with the
People, replaced the Meiji Constitution.
The constitution of Japan is the fundamental law of Japan. It was enacted on 3
May,1947 as a new constitution for a post-war Japan. The constitution provides
for a parliamentary system of government and guaranteed certain fundamental
rights.Under its terms, the emperor of Japan is the symbol of the state and of
the unity of the people and exercises only a ceremonial role acting under the
sovereignty of the people.The constitution also known as the post-war
constitution or the Peace constitution.
The Japanese constitution is the oldest unamended constitution in the world.It
has not had any amendments to its text in more than to years.It is a short
constitution with only 5000 words,compared to the average constitution with
21000 words. It comprises 103 articles grouped into11 chapters.
These are as
- The Emperor ( Articles 1-8)
- Renunciation of War ( Article 9)
- Rights and Duties of the People (Articles 10 -40)
- The Diet ( Articles 41-64)
- The Cabinet ( Articles 65-75)
- Judiciary ( Articles 76-82)
- Finance ( Articles 83- 91)
- Local Self – Government ( Articles 92-95)
- Supreme Law (Article 97-99)
- Supplementary Provisions ( Articles 100-103)
Pacifism as a constitutional Principle:
Pacifism as a constitutional principle is most Peculiar. It has nothing to do
with the structure of government , the powers of its constituent elements, the
role of the people, or the relationship between the government and the people,
all of which are primary constitutional concerns. Pacifism does, however , have
every right to its position as a fundamental principle.
The principle of pacifism is expressed in the constitution's second chapter
,consisting of the single famous Article 9. The basic points of Japan's pacifism
expressed therein are: the renunciation of war and the threat or use of force as
a sovereign right of the nation in settling international disputes, the
perpetual non-maintenance of land, sea and air forces, and the non- recognition
of the right of belligerency. Article 9 is buttressed by both Article 66 , which
requires that the Prime Minister and all ministers of state be civilians, and
the lack of provisions relating to the responsibility of citizens either to bear
arms in defense of the nation or to serve in a peacetime militia.
Article 9 arose out of a lost war and a military occupation controlled by a
policy calling for a complete disarmament of Japan and, for whatever reasons,
determined to bring about a revision of the nation's fundamental law. It was war
that fathered constitutional Pacifism in Japan and it was war that began its
erosion. In June 1950, a few weeks after the third birthday of Article 9 , the
Korean war ,a white –hot development of the cold war, broke out. One side was
rapidly anti-communist and the other side fervently communist.
One side was
supported by American /United Nations armed forces, while the other side was
supported by Chinese military forces and the Soviet Silent Partner. Battles
raged only a few hundred miles from Japan, which by being a vital American
base, had become passively involved. For Japan's pacifism, the result was a
departure from both the letter and the spirit of Article 9.Two other external
circumstances will help to determine the future of Japan's constitutional
Pacifism. Only future events will determine the degree of continuing pressure
by the United States and the consequent impact on Pacifism as a principle. The
Other circumstance that will help determine the future of Japan's constitutional
pacifism is the development of President Gorbachev's twin policies for a
reduction of Soviet military power and for a diplomacy of peace.
As important as strategy and external influences are in determining the future
of the SDF ( Self defence Forces) the final decision will be made by the
Japanese Government and will grow out of domestic, psychological, political and
social considerations. The real test, however ,will come when and if the
Japanese Government attempts to advance beyond the current situation.
Inspite of the strength of Pacifism , there has been a visible ,vocal and
persistent counter movement. Many Japanese, both leaders and followers, firmly
believe that Article 9 is no more than a humiliating reminder of both the
bitterness of a lost war and the disgrace of a military occupation. This
attitude has been one of the most powerful motivating forces for those who would
revise not only Article 9 but other provisions of the constitution. Therefore,
the future of Pacifism is firmly bound to the fate of both constitutionalism and
democracy in Japan.
Popular Sovereignty as a constitutional Principle:
Popular Sovereignty was a concept absent from Japan's historical experience. It
is not surprising that it was missing from the Meiji constitution since its
drafters were concerned with making the people the objects of government under
imperial sovereignty, not participants in or molders of government and politics.
In order for Japan to become a democracy, it was necessary to devise a
fundamental law that would guarantee the people the broadest possible
participate in government.
The general principle is states, without the use of the term, in the preamble to
Government is a sacred trust of the people, the authority for which is derived
from the people, the powers of which are exercised by the representatives of the
people, and the benefits of which are enjoyed by the people. This is a
universal principle of mankind upon which this constitution is founded. The
thoughts were indeed strange ,even revolutionary, in terms of the history of
Japanese Political thought.
The Principle of Popular Sovereignty was stated in
the text of the constitution simply as a subordinate clause in Article 1:
emperor shall be the symbol of the state and of the unity of the people,
deriving his position from the will of the people with whom resides sovereign
power. In the Meiji constitution , the emperor was sovereign.
From the last five words of Article 1 flow all the constitutional provisions
that convert the words into the structure of an operating democratic government
: fundamental human rights that are indivisibly joined to Popular Sovereignty;
the inalienable right of the people to choose and dismiss public officials,
universal adult suffrage, the secrecy of the ballot and non-responsibility for
the vote, the right of peaceful petition; the National Diet as the highest
Organ of State power, the responsibility of the cabinet to the diet; the
popular review of Supreme court justices, and an amendment process under which
amendments must originate in the diet and be ratified by the electorate.
Although the diet is the highest organ of state power, Practice has
demonstrated that there is a noticeable gap between principle and reality.
First, there is the problem of the bureaucracy which of course is both the body
and soul of the executive branch. The bureaucracy wields considerable power
through its authority to issue administrative rules, regulations and opinions. A
striking feature of Japan's system of government under Popular Sovereignty is
that it has worked successfully. Japan also has witnessed an historically
unprecedented rise in the level of the people's livelihood.
Finally under the system ,Japan has escaped any threat to its national security
and has become an economic super power, resulting in an increase in its
international stature. This is not to argue that Japan is perfect , but the
government ,as a manifestation of popular Sovereignty has managed to deal
effectively with the problems of its people.
Fundamental Human Rights in Japan:
The guarantee of fundamental human rights is the embodiment of democracy while
the lack of such a guarantee means no democracy. An understanding of fundamental
human rights is essential in the taxonomy of twentieth century political
systems. Japan' constitution , which provides for fundamental human rights,
places the country clearly in the democratic camp. Thus, a serendipitous
combination of policy ,personality and personnel tempered the military nature of
the occupation and supported the introduction of the principle of fundamental
human rights. If Americans were responsible for introducing fundamental human
rights as a basic principle of democratic constitutionalism, then it was the
Japanese who in practice adopted and cultivated them and have harvested the
Central to the creation of a new democratic constitutional order was the
recognition of a new role for the individual , not as the passive object of an
authoritarian order, but as the active repository of fundamental human rights.
The freedom of Expression in Japan, provides a clear picture of the application
of the Public trust doctrine in such important areas as the freedoms of speech
,assembly, association and expression. Under democracy ,general limitations on
basic freedoms are impermissible, but episodic limitations under clearly defined
circumstances are a far cry form systematic and systemic suppression of freedom
as was the case under the Meiji constitution.
Conclusion & Suggestions:
The endowed principles of Pacifism, Popular Sovereignty and the guarantee of
fundamental human rights have served the nation well.
- Pacifism, coupled with powerful assistance from an international
situation that has not produced a credible threat to Japan's security, has
spared the country involvement in war and the staggering costs of becoming a
military superpower, thus freeing resources for the betterment of national
- Popular Sovereignty has resulted in a system of government and Politics that
has maintained domestic tranquility ,enabled the government to work effectively,
if not perfectly , in addressing domestic and foreign problems, and spared the
country from the debilitating effects of political instability.
- Fundamental human rights have permitted both individuals and groups to
function with an unprecedented degree of political, social and economic freedom.
The three fundamental principles have operated powerfully to make a constitution, which originated from a military occupation and was based on concepts arising
in a radically different political, social and historical environment, into the
broadly accepted and firmly rooted fundamental law of a viable democracy.
people of Japan made the constitution their own, and thus carried to completion
one of the most successful and significant political transformations of the
twentieth century. Pacifism, popular sovereignty and the guarantee of
fundamental human rights have served the nation well. Therefore, conformation of
the brilliance of the achievement of the Japanese and American founding fathers
in building a strong, durable and democratic constitution based on pacifism,
Popular Sovereignty and the guarantee of fundamental human rights.
- L.Beer,Freedom of Expression in Japan: A study in Comparative
law,Politics and Society (1984)
- Maki, Japan's Rearmament: Progress and Problems , 8 W.POLQ.545(1955)
- Maki,law and Contemporary problems (VOL .53:No.1)
- Pylee,M.V (1997);India's Constitution S.chand & co (3)
- The historical and institutional context of Roman la,George
- Encyclopedia of world constitutions (2006)626
- The constitution of Japan (bare text)
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