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The Constitution of Japan has been the founding legal document of Japan since 1947 . The constitution provides for a Parliamentary System of government and guarantees certain fundamental rights. Under its terms the Emperor Of Japan is the ''de facto'' Head Of State but exercises a purely ceremonial role. The constitution is perhaps most famous for the renunciation of the right to wage war contained in Article 9 . The constitution was drawn up under the Allied Occupation that followed World War II and was intended to replace Japan's previous imperial system with a form of Liberal Democracy . It is a rigid document and no subsequent amendment has been made to it since its adoption. HISTORICAL ORIGINS Meiji Constitution The Constitution of the Empire of Japan of 1889, more commonly known as the Imperial or Meiji Constitution , was the first modern constitution of Japan. Enacted as part of the Meiji Renewal , it provided for a form of Constitutional Monarchy based on the Prussia n model, in which the Emperor Of Japan was an active ruler and wielded considerable political power, but shared this with an elected Diet . The Potsdam Declaration On : "The occupation was perhaps the single most exhaustively planned operation of massive and externally directed political change in world history." Drafting process The wording of the Potsdam Declaration—"The Japanese Government shall remove all obstacles..."—and the initial postsurrender measures taken by Douglas MacArthur , the Supreme Commander for the Allied Powers (SCAP), suggest that neither he nor his superiors in Washington intended to impose a new political system on Japan unilaterally. Instead, they wished to encourage Japan's new leaders to initiate democratic reforms on their own. But by early 1946, MacArthur's staff and Japanese officials were at odds over the most fundamental issue, the writing of a new constitution. Prime Minister Shidehara Kijuro and many of his colleagues were extremely reluctant to take the drastic step of replacing the 1889 Meiji Constitution with a more liberal document. In late 1945, Shidehara appointed Matsumoto Joji , state minister without portfolio, head of a blue-ribbon committee of constitutional scholars to suggest revisions. The Matsumoto Commission 's recommendations, made public in February 1946 , were quite conservative (described by one Japanese scholar in the late 1980s as "no more than a touching-up of the Meiji Constitution"). MacArthur rejected them outright and ordered his staff to draft a completely new document. Much of it was drafted by two senior army officers with law degrees: Milo Rowell and Courtney Whitney . The articles about equality between men and women are reported to be written by Beate Sirota . Although the document's authors were non-Japanese, they took into account the Meiji Constitution, the demands of Japanese lawyers, and the opinions of pacifist political leaders such as Shidehara and Yoshida Shigeru . The draft was presented to surprised Japanese officials on 13 February , 1946. On 6 March , 1946, the government publicly disclosed an outline of the pending constitution. On 10 April elections were held to the House of Representatives of the Ninetieth Imperial Diet, which would consider the proposed constitution. The election law having been changed, this was the first General Election in Japan in which women were permitted to vote. The MacArthur draft, which proposed a unicameral legislature, was changed at the insistence of the Japanese to allow a bicameral legislature, both houses being elected. In most other important respects, however, the ideas embodied in the 13 February document were adopted by the government in its own draft proposal of , the prominence of guarantees of civil and human rights, and the renunciation of war. Adoption It was decided that in adopting the new document the Meiji Constitution would not be violated, but rather legal continuity would be maintained. Thus the 1946 constitution was adopted as an amendment to the Meiji Constitution in accordance with the provisions of Article 73 of that document. Under Article 73 the new constitution was formally submitted to the Imperial Diet by the emperor, through an imperial rescript issued on 20 June . The draft constitution was submitted and deliberated upon as the Bill for Revision of the Imperial Constitution. The old constitution required that the bill receive the support of a two thirds majority in both houses of the Diet in order to become law. After both chambers had made some amendments the House Of Peers approved the document on 6 October ; it was adopted in the same form by the House Of Representatives the following day, with only five members voting against, and finally became law when it received the emperor's assent on 3 November . Under its own terms the constitution came into effect six months later on 3 May , 1947. Early proposals for amendment The new constitution would not have been written the way it was had MacArthur and his staff allowed Japanese politicians and constitutional experts to resolve the issue as they wished. The document's foreign origins have, understandably, been a focus of controversy since Japan recovered its sovereignty in 1952 . Yet in late 1945 and 1946, there was much public discussion on constitutional reform, and the MacArthur draft was apparently greatly influenced by the ideas of certain Japanese liberals. The MacArthur draft did not attempt to impose a United States -style presidential or federal system. Instead, the proposed constitution conformed to the British model of parliamentary government, which was seen by the liberals as the most viable alternative to the European Absolutism of the Meiji Constitution. After 1952 conservatives and Nationalists attempted to revise the constitution to make it more "Japanese," but these attempts were frustrated for a number of reasons. One was the extreme difficulty of amending it. Amendments require approval by twothirds of the members of both houses of the National Diet before they can be presented to the people in a referendum (Article 96). Also, opposition parties, occupying more than one-third of the Diet seats, were firm supporters of the constitutional status quo. Even for members of the ruling LDP , the constitution was not disadvantageous. They had been able to fashion a policy-making process congenial to their interests within its framework. Yasuhiro Nakasone , a strong advocate of constitutional revision during much of his political career, for example, downplayed the issue while serving as prime minister between 1982 and 1987. MAIN PROVISIONS Structure The constitution has a length of approximately 5,000 words. It consists of a preamble and 103 articles grouped into eleven chapters. These are:
Founding principles The constitution contains a firm declaration of the principle of popular sovereignty in the preamble. This is proclaimed in the name of the "Japanese people" and declares that "sovereign power resides with the people" and :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. Part of the purpose of this language is to refute the previous constitutional theory that sovereignty resided in the emperor. The constitution asserts that the emperor is merely a symbol and that he derives "his position from the will of the people with whom resides sovereign power" (Article 1). The text of the constitution also asserts the Liberal doctrine of fundamental human rights. In particular Article 97 states that :the fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate. Organs of government ''Main article: Government Of Japan '' The constitution establishes a parliamentary system of government. The emperor carries out most the functions of a Head Of State but his role is merely ceremonial and, unlike the forms of Constitutional Monarchy found in some other nations, he possesses no Reserve Power s. Legislative authority is vested in a Bicameral National Diet and, whereas previously the Upper House had consisted of members of the nobility, the new constitution provides that both chambers be directly elected. Executive authority is exercised by a Prime Minister and Cabinet answerable to the legislature, while the judiciary is headed by a Supreme Court . Individual rights "The rights and duties of the people" are prominently featured in the postwar constitution. Altogether, thirty-one of its 103 articles are devoted to describing them in considerable detail, reflecting the commitment to "respect for the fundamental human rights" of the Potsdam Declaration . Although the Meiji Constitution had a section devoted to the "rights and duties of subjects," which guaranteed "liberty of speech, writing, publication, public meetings, and associations," these rights were granted "within the limits of law." Freedom of religious belief was allowed "insofar as it does not interfere with the duties of subjects" (all Japanese were required to acknowledge the emperor's divinity, and those, such as Christian s, who refused to do so out of religious conviction were accused of Lèse-majesté ). Such freedoms are delineated in the postwar constitution without qualification.
Other provisions
AMENDMENTS Article 96 provides that Amendment s can be made to any part of the constitution. However a proposed amendment must first be approved by both houses of the Diet, by at least a two-thirds majority of the total number of members of each (rather than of the total number of votes cast). It must then be submitted to a Referendum in which it is sufficient for it to be endorsed by a simple majority of votes cast. A successful amendment is finally promulgated by the emperor, but the monarch cannot veto an amendment. Proposed changes to the document often come from the political right. This constituency's suggestions include altering Article 9 as well as amending provisions relating to the emperor, so as to explicitly state that he is the "head of state". The latter is suggested in order to clarify the emperor's role and to enhance his prestige, rather than to grant him any new powers. Some commentators have suggested that the difficulty of the amendment process was favoured by the constitution's American authors from a desire that the fundamentals of the regime they had imposed would be resistant to change. However, among Japanese themselves, any change to the document, and to the post-war settlement it embodies, is highly controversial. Proposed changes to Article 9 or to the role of the emperor touch on particularly sensitive areas. LDP proposals in 2005 In August 2005, the Japanese Prime Minister, Junichiro Koizumi proposed an amendment to the constitution in order to increase Japan's Defence Forces' roles in international affairs. A draft of the proposed constitution was released by the Liberal Democratic Party (LDP) on 22 November , 2005 as part of the fiftieth anniversary of the party's founding. The proposed changes include:
Per the current constitution, this proposal must be passed by a two-thirds vote in the Diet, then be put to a national referendum. Since there is no legislation providing for a national referendum, this legislation must also be passed. The new draft constitution is sparking debate, including opposition from Non-governmental Organisation s of other countries. A grassroots Japanese organisation, Save Article 9 , was formed in 2005 to oppose the changes to Article 9. HUMAN RIGHTS GUARANTEES IN PRACTICE :''See also: Human Rights In Japan International bodies such as the United Nations Human Rights Committee , which monitors compliance with the International Covenant On Civil And Political Rights , and groups such as Amnesty International have argued that many of the guarantees for individual rights contained in the Japanese constitution have not been effective in practice. Such critics have also argued that, contrary to Article 98, and its requirement that international law be treated as part of the domestic law of the state, human rights treaties to which Japan is a party are seldom enforced in Japanese courts. Provisions of the constitution guaranteeing equality have been interpreted as only applying to Japanese National s, and therefore cannot be invoked by visiting foreigners, or by Japan's millions of native residents of Korean and Chinese descent who do not enjoy citizenship. Furthermore, despite the constitution's egalitarian provisions, Japan is unusual in the developed world in that Racial Discrimination has not been made an offence in ordinary law. Despite constitutional guarantees of the right to a fair trial, conviction rates in Japan exceed 99%. Despite Article 38's categorical requirement that "no person shall be convicted or punished in cases where the only proof against him is his own confession" defendants are routinely convicted solely on the basis of a signed confession. Although the same article bans coerced confessions, defendants are commonly held in confinement and interrogated by police for periods of time not permissible in other developed nations. In spite of Article 36's prohibition of torture and cruel punishments, the unusual form of strict regimentation found in Japanese prisons is widely held to be degrading and inhumane. REFERENCES
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