Monday, May 07, 2012

"and filled both the ships" - The Japanese Constitution

A Tokyo View

The Japanese Constitution

After the Empire of Japan fell through the war against the US, General MacArthur, the supreme commander of the allied forces occupying Japan, indicated his idea about new Japanese Constitution.
Three basic points stated by Supreme Commander to be "musts" in constitutional revision. 
Emperor is at the head of the state.
His succession is dynastic.
His duties and powers will be exercised in accordance with the Constitution and responsive to the basic will of the people as provided therein. 
War as a sovereign right of the nation is abolished. Japan renounces it as an instrumentality for settling its disputes and even for preserving its own security. It relies upon the higher ideals which are now stirring the world for its defense and its protection.
No Japanese Army, Navy, or Air Force will ever be authorized and no rights of belligerency will ever be conferred upon any Japanese force. 
The feudal system of Japan will cease.
No rights of peerage except those of the Imperial family will extend beyond the lives of those now existent.
No patent of nobility will from this time forth embody within itself any National or Civic power of government.
Pattern budget after British system. 
Copyright©2003-2004 National Diet Library All Rights Reserved.

MacArthur's idea was conveyed through his subjects to Japanese politicians in charge of drafting new Constitution.  And, eventually a draft of new Japanese Constitution was prepared by those Japanese in line with MacArthur's idea, which was passed by the Japanese parliament in 1946.

Since then, Japan has not modified any part of the Constitution which has the following features:
(1) Emperor is the symbol of unification of the Japanese people with only nominal and formal functions in politics.

(2) Democracy and human rights are assured the Japanese people of to the maximum extent.

(3) The Japanese Government renounces a right to make war and prepare military forces for war.

Put simply, this Constitution is completely opposite to militarism and totalitarianism the Japanese people badly suffered during WWII.  And, since its publication in 1946, no amendment has been made to any articles of the Constitution. Yet, it has been a big concern among the conservative camp in the Japanese political communities.  Most of conservative people want to change the Constitution, since the present version is heavily influenced by MacArthur's idea.  They think it is a shame to have such Constitution that is highly influenced by American rulers who occupied Japan after WWII. 

Nonetheless about half of Japanese voters do not find necessity to amend the Constitution.  It is probably because they do not trust nationalists, rightists, and conservative politicians.  For example, if you criticize the imperial house today, you do not feel any danger of  being attacked by nationalists.  But, if nationalists ideas should be put into new constitution, such freedom and sense of security might be lost.  Japanese voters are afraid that amending the Constitution following initiatives of rightists might result in provisions to be specified which would limit freedom they are now enjoying.  And, it is mostly rightists that want to amend the Constitution now.

Anyway as the memory of the defeat (accompanied by atomic bomb attacks on Hiroshima and Nagasaki) of the Empire of Japan in WWII is still so acute, most of Japanese voters do not want to give any chance to nationalists for their expansion.  Accordingly, most of the Japanese people are reluctant to effect constitutional change.  But, the conservative opposition party LDP is very willing to carry out amendment of the Constitution.  So, if a regime change should be achieved in the next general election, the LDP might propose a draft amendment to the parliament (called the Diet) sooner or later.

To make sure, the issue of amending the Constitution is closely linked to the Japan-U.S. Security Arrangements based on which the US has many military bases in Japan.  If Japan decides to defend Japan without relying on US military forces, including American nuclear capability, it must abolish Article 9 that restricts government functions to use military forces against enemy countries.  It means to regard the US as the same as other countries which can be an enemy or a threat to Japan in terms of national security.  Conversely, if Japan continues to view the US as a special friendly country that will join defense activities of Japan, there is no need to  repeal the present Constitution in terms of national security.

Other specifics of the current Japanese Constitution:

Prohibition of slavery: Guaranteed by Article 18. Involuntary servitude is only permitted as punishment for a crime.
Separation of Religion and State: The state is prohibited from granting privileges or political authority to a religion, or conducting religious education (Article 20).

Freedom of assembly, association, speech, and secrecy of communications: All guaranteed without qualification by Article 21, which forbids censorship.

Workers' rights: Work is declared both a right and obligation by Article 27 which also states that "standards for wages, hours, rest and other working conditions shall be fixed by law" and that children shall not be exploited. Workers have the right to participate in a trade union (Article 28).

Right to property: Guaranteed subject to the "public welfare". The state may take property for public use if it pays just compensation (Article 29). The state also has the right to levy taxes (Article 30).

Right to due process: Article 31 provides that no one may be punished "except according to procedure established by law". Article 32, which provides that "No person shall be denied the right of access to the courts," originally drafted to recognize criminal due process rights, is now understood as source of due process rights for civil and administrative law cases.[4]

Protection against unlawful detention: Article 33 provides that no one may be apprehended without an arrest warrant, save where caught in flagrante delicto. Article 34 guarantees habeas corpus, right to counsel, and right to be informed of charges. Article 40 enshrines the right to sue the state for wrongful detention.

Right to a fair trial: Article 37 guarantees the right to a public trial before an impartial tribunal with counsel for one's defence and compulsory access to witnesses.

Protection against self-incrimination: Article 38 provides that no one may be compelled to testify against themselves, that confessions obtained under duress are not admissible and that no one may be convicted solely on the basis of their own confession. Nevertheless, forced confessions still remain a common practice, according to some sources.

General MacArthur's Office in Tokyo (1945 - 1951)

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Luk 5:6 And when they had this done, they inclosed a great multitude of fishes: and their net brake.
Luk 5:7 And they beckoned unto their partners, which were in the other ship, that they should come and help them. And they came, and filled both the ships, so that they began to sink.
Luk 5:8 When Simon Peter saw it, he fell down at Jesus' knees, saying, Depart from me; for I am a sinful man, O Lord.