An Outline of the Japanese Constitution

ABOUT a hundred years after the framing of the American Constitution, an ancient Asiatic nation, one that had little in common with Western peoples, and was undisturbed by the rapid strides which Western civilization had made in the sphere of constitutionalism, suddenly awoke from her political lethargy, and promulgated a constitution admirably careful in form and unique in its distribution of governmental powers. That nation is the Empire of Japan.

It seems strange that Japan, a country that can trace her line of emperors to a period beyond the Christian era, should rise to the occasion as she did in February, 1889; but if we follow closely the history of Japan during the last thirty-seven years, we note the insight of Japanese intellect striving to work out her political problem. Japan, after opening her ports to foreigners, had been for some time endeavoring to give her people their share in the management of national affairs and to establish a constitutional form of government; so she took careful note of the examples which Europe and America afforded her, of the merits and demerits of other systems of government, and finally brought about a most excellent result in the solution of constitutional questions. No force of arms, no political or national catastrophe, was brought to bear upon either monarch or subject; for the common sense of both discerned that a change was necessary.

The Japanese Constitution is divided into seven chapters, comprehending seventy-six articles.

Chapter I. relates to the Emperor; Chapter II. to the Rights and Duties of the Subjects; Chapter III. to the Imperial Parliament; Chapter IV. to the Minister of State and Privy Council; Chapter V. to the Judicature; Chapter VI. to the Finance; Chapter VII. to the Supplementary Rules.

The general principles of the Constitution are very similar to the unwritten laws of the English Constitution ; but on many points Germany, Austria, America, France, and other countries have been referred to. To a European or American reader, some points may seem quite an innovation to the constitutional jurisprudence, but they are certainly the result of a careful study of the constitutions of other countries, and might be considered, to a certain extent, an improvement on the theory of constitutionalism.

The primary idea embodied in the Constitution is that the document should contain and enumerate only the fundamental principles of constitutional government, and disregard all minor details. For instance, the three great divisions, Legislative, Executive, and Judicial, are marked out, in order that the governing as well as the governed may understand the relation of the three powers : but the various points under these heads are not touched upon. No attention is paid to the details of government machinery that must change with the progress of national affairs, and in this way a very considerable improvement on the form of constitution is effected. A diligent study of political and constitutional philosophy has convinced the Japanese jurist that the rigid Constitution of America, and not the flexible Constitution of England, will be the most suitable form in Japan, for Japan has her governmental principles, fundamental and essential; and since these will hold good for all ages, it is well that they should remain by themselves, separate and immovable. Were Japan to frame her Constitution with a mixture of principles and details like that of Great Britain, it would be impossible for her to retain a rigid Constitution.

Chapter I. relates to the imperial sovereignty. The present Emperor of Japan is the direct descendant of the first Emperor Gimmou, who, after having conquered all the tribes, became the sole ruler of the nation in the year 660 B. C. During a period of more than twenty-five centuries, one unbroken line of emperors has succeeded to the imperial power, a unique exception in the history of monarchies. This fact was strongly emphasized in Article 1 by stating that “ the Empire of Japan shall be reigned over and governed by a line of emperors unbroken for ages eternal.”

Under this chapter the royal prerogatives are summarized as concisely as possible in a few articles, yet conceding all the ancient rights and powers of the Emperor which had been so long in the hands of the Japanese sovereign. In regard to the royal prerogative, European countries have enumerated in their constitutions all the rights and powers of the sovereign so fully that they have greatly handicapped the royal will; but the Emperor of Japan, so long as he does not interfere with the Constitution, can exercise his ancient right to the full. According to the Constitution, the three powers of state, the Legislative, Executive, and Judicial, are invested in the person of the Emperor, who is the life and centre of the whole political mechanism. Japan, by the method she pursues in connection with her sovereign, gets rid of the idea once prevalent in the eighteenth century, that legislative, executive, and judicial powers should be independent of one another.

Chapter II. deals with the rights and duties of the Japanese subject in conformity with European systems.

When feudalism held sway in Japan, the people were divided into four distinct classes : the military, the farming, the artisan, and the merchant. Civil and political rights were enjoyed only by the military, but at the imperial restoration, in 1868, class distinction in politics was abolished ; and by the new Constitution civil preference has likewise been put aside. Each Japanese subject, therefore, in his political and civil rights, is now on an equal footing with his neighbor. Moreover, he has acquired the freedom of speech and writing together with that of publication, and the privilege of holding and attending public meetings and forming associations ; liberty to choose a place of residence; and, finally, he is granted the freedom of religious belief and worship. Nor can a Japanese be arrested, detained, tried, or punished except according to law ; nor can a dwelling be entered or searched without a magistrate’s warrant. The right of property and the privacy of correspondence are considered inviolable except by a provision of law. Each subject has an equal eligibility for civil or military appointments, and for any other public offices ; and no preference is given to family or order. The right of petition, which in an early period of their constitutionalism was so much sought after by the Anglo-Saxons, and won at last after fierce opposition, was granted to the Japanese subjects as a free gift of the Emperor.

Freedom of religious belief, which during the early period of Japanese feudalism did not exist, is one of the best fruits of modern civilization. However graciously these freedoms be granted to his subjects, it is the will of the Emperor that these freedoms should not he carried to such an extent as is insisted upon by modern socialists, but should be exercised within due restrictions of law ; therefore, the Constitution has carefully provided that these shall be bounded by the law.

In Chapter III. the organization of Parliament is divided into, first, the House of Peers, and, second, the House of Representatives. The organization of the two Houses is not mentioned in the Constitution, but is left to ordinary laws, in order to meet the requirements of time, and to be modified accordingly. Qualification and the electorate, too, must vary with social and political progress ; but the Constitution itself ought not to be changed as easily as ordinary laws.

The parliamentary organization greatly resembles that of England, but its power is more limited. If we compare the Japanese Parliament with that of England and the Congress of the United States, we see a greater resemblance to the American Congress than to the English Parliament; for the latter has almost the sole right of sovereignty and can well-nigh act as it pleases, and even change the Constitution itself ; while the former must obey the provisions of the Constitution, and can do nothing outside of the power already sanctioned thereby. Furthermore, there is a striking difference between the Japanese and the American ; for in the United States the Constitution proceeds from the people, whereas in Japan from the Emperor. Therefore the Japanese Parliament may be styled a non-sovereign, legistro-financial assembly ; for it is convened by the Emperor to deliberate upon questions of law and the national budget. If we compare the constitutions of three countries, namely, England, the United States, and Japan, we have a marked dissimilarity: in England the sovereign power rests with the Parliament; in the United States with the people ; and in Japan with the Emperor. Here we have an excellent specimen of three constitutional forms of government. The first we may call a constitutional parliamentary government, the second a constitutional democracy, and the third a constitutional monarchy.

The Japanese Parliament has many powers, which are enumerated in the Constitution, but if we take the more important ones they are four in number. The first is to deliberate upon and discuss points of law brought either by government or by its own members; the second, to examine and vote upon the national budget; the third, to receive petitions from the people, and to question the government upon any matter relating thereto ; and the fourth, to present an address to the Emperor upon grave questions of national affairs, or to report to him upon the condition of ministerial confidence.

With regard to the impeachment of a minister, the Japanese Constitution says nothing ; and it is better that this should be so. In England there has been no impeachment since 1805. The Japanese Constitution has substituted the power of address for that of impeachment. If a minister should in any way abuse the confidence reposed in him, an address from either or both of the Houses of Parliament is presented to the Emperor ; and if he considers the charges brought against that official are proved, then the minister is dismissed from office.

Chapter IV. relates to the ministers of state and privy councilors. There is, possibly, no question of constitutional law further from solution than that dealing with the responsibility of ministers, — to what extent their responsibility reaches, and to whom the ministers are really responsible.

In almost every country governed by a constitution, it is acknowledged by custom or usage that the ministers are responsible to the Parliament for the management of national affairs, and by this means the Parliament has already gained the whole power of sovereignty, or is endeavoring to gain it at the expense of ministerial stability. The German people were rather surprised to hear Prince Bismarck say in one of his speeches, “ I am responsible neither to the people nor to the Parliament, but to the Emperor alone.” In this respect the Japanese Constitution has taken the same view as the German Chancellor, by stating in Article 55 that “ the respective ministers of state give their advice to the Emperor and are responsible for it.”

From this article we infer that the Japanese ministers are responsible only to the Emperor — not to the Parliament— for the management of national affairs ; and ministerial responsibility arises simply from the advice they have given to their sovereign as councilors. But when we examine their position towards the Parliament from a practical point of view, we find the minister with a twofold responsibility, — one direct, to the Emperor, and the other indirect, to the Parliament. Notwithstanding the fact that the ministers of state are appointed by the sovereign personally, and their official position is entirely dependent upon the royal pleasure, Parliament, as has already been stated in connection with impeachment by means of an address, controls the conduct of ministers in regard to national politics. This indirect responsibility comes from the position of the ministers towards the Parliament in relation to questions of law and the national budget.

The Privy Council is the supreme deliberative body attached to the sovereign, whom it advises whenever it is consulted upon important questions of national policy. Its function is, first, to decide disputes arising from the interpretation of the Constitution or the quasi - constitutional laws, such as the law of the Houses, the election law, the law of finance, and the like, or disputes in regard to the budget or other financial measures; and, secondly, to deliberate upon amendments to the Constitution, or amendments to the quasi-constitutional laws. Thus the Constitution creates the two media in the system of government through which the national affairs are managed: the one, the ministers of state, which guides the national policy and transacts all the administrations of government; and the other, the Privy Council, which advises the sovereign whenever he consults with that body.

We now come to Chapter V. According to the system which prevailed in Japan during the time of feudalism, the department of justice was under the control of the state, and judges were dependent upon the minister of justice. But as the influence of the military class under the feudal system increased, all the political powers passed into their hands, and consequently judicial power was under the guidance of the chief of police, and so continued till the time of the imperial restoration, in 1868. Immediately after, however, the judicial authority was centred in the Emperor. Thus the Japanese fully recognized the legal maxim that the sovereign is the fountain of justice, and that all judgments should be pronounced in his name ; and this recognition is clearly stated in Article 57 of the Constitution, which says that “ the judicature shall be exercised by the courts of law, according to law, in the name of the Emperor.”

The judicial organization of Japan is much the same as that of the Western nations, for the court is divided into the following classes, namely: first, the district court; second, the original court; third, the appellate court; and fourth, the court of cassation. The judges are appointed by the Emperor; but he can select only those who possess the proper qualifications according to the provisions of law. In order that a trial may be conducted with justice and impartiality, the judges are appointed for life, independent of dismissal either by the Emperor or by the Parliament, and they can he discharged from their office only by a sentence passed by the criminal court, or upon the disciplinary trial, whose rules and proceedings are to be decided by law.

Chapter VI. deals with finance. The Constitution attaches a great importance to financial affairs, for it has made many improvements on European systerns which have been the result of the keen observation of the most practical financiers. For instance, the national budget is first presented, to the House of Representatives in a form similar to that of most constitutional countries in Europe; but the House of Peers has the same right to examine it and vote upon it as the Lower House; and by these means, while giving the Upper House more power than a mere adoption or rejection of the budget in banc, it restricts the absolute power of the House of Representatives over the annual budget. In this respect the Japanese Constitution more resembles that of the United States than that of Great Britain. A careful investigation of the English parliamentary control over the national budget has shown that there was a time when that Constitution allowed the same right to the House of Lords as the House of Commons ; but in the course of years the latter gradually gained a full sway over the question of national finance. Yet since the peers pay as heavy taxes to the treasury as the commons, they should not be deprived of the right to vote on this question. This is one of those anomalies of the English Constitution which can be explained only by its peculiar history and tradition. Therefore it is unnecessary to follow the example of Great Britain in a new country like Japan, as she has her peculiar history and a different condition of national finance.

Another instance of divergence is that of the expenditure, which, according to the Constitution, is divided into two classes, the immovable and the movable. In regard to the immovable, Article 76 states that " those already fixed expenditures, based by the Constitution upon the powers appertaining to the Emperor, and such expenditures as may have arisen by the effect of law, or that appertain to the legal obligations of the government, shall be neither rejected nor reduced by the imperial Parliament without the concurrence of the government.'’ Under this head are included the civil list, ordinary expenses required by the organization of different branches of the administration and by that of the army and navy, the salaries of all civil and military officers, and outlays that may be required in consequence of treaties concluded with foreign countries; the expenses of the Houses of Parliament, annual and other miscellaneous allowances to the members, government pensions and annuities, the interest on the national debt, redemption of the same, and other outlays of a like nature. These expenditures are fixed by the Constitution, which, being the highest and the fundamental law of the country, cannot be changed by any process of ordinary legislation. Thus all those expenditures which are necessary for the existence and continuance of the national government are secured from reduction or rejection by either House. This provision may be compared with those regulations relating to the English Consolidated Fund ; and a similar protective clause has been recently made in several German states, namely, Brunswick, Oldenburg, Hanover, and Saxe-Meiningen.

Count Ito, president of the Privy Council, states in his Commentary that “ in regard to new expenditures or to the increase of existing ones, though based upon the sovereign power of the Emperor, the Parliament may have the power freely to deliberate upon them. Even those already fixed and based by the Constitution upon the sovereign power of the Emperor may, with the consent of the government, be rejected, or reduced in amount, or otherwise modified.”

The movable expenditures, consisting of all those items exclusive of the immovable expenditures which are either casual or temporary in their nature, are annually brought before the Parliament for discussion and approval.

Our last chapter is devoted to the supplementary rules, and has special reference to the amendment of the Constitution, which can be made only by the Emperor. Here the Japanese Constitution resembles that of Prussia, for in the Prussian Constitution Article 118 states that, “ should changes in the present Constitution be rendered necessary by the German Federal Constitution drawn up on the basis of the draft of 26th May, 1849, such alteration will be decreed by the king; and the ordinances to this effect should be laid before the Chamber, at their first meeting.”

There is another special point to be mentioned under this chapter. In carrying out the Constitution, the Japanese government has taken into consideration that all laws, regulations, and decrees, by whatever names they may have been previously proclaimed, shall stand as the law of the land and shall have legal force, irrespective of the period before or after the promulgation of the Constitution, without being brought before the Parliament for approval ; for if it were to be brought before that assembly for the purpose of being approved, it would produce nothing short of a revolution in both laws and politics. Therefore the Constitution, in regard to the former laws, regulations, and decrees, as it is to be understood, shall be prospective, and not retrospective.

Before we close this article it may not be out of place to state that it is the earnest desire of all Japanese subjects to fulfill the will of the Emperor in carrying the Constitution into effect; and to this end, the government as well as the people are making a great preparation for the opening of the Parliament next year. If we carry the Constitution into effect as smoothly as did the Americans during the last hundred years after the adoption of the Constitution, we shall show to the world that the Japanese, one of the Oriental races, can be governed by the same principles of constitutionalism.

K. Kaneko.