Issues | LAW OF THE LAND

Japan fumbles for the legal path to an 'Emprexit'

Simplest route to abdication lies with Imperial Household Law, not constitutional change

by Colin P.A. Jones

Special To The Japan Times

Things got interesting earlier this month when Emperor Akihito addressed the nation to explain his desire to abdicate, without actually expressing a desire to abdicate. Not only that, but his intent was previously telegraphed to the nation through a scoop by NHK, the ultimate establishment broadcast media, which is usually being excoriated by more heroic journalists for meekly hewing to the government line. Also interesting was the Imperial Household Agency’s initial refutation of the scoop and declarations by anonymous sources elsewhere in the government that abdication was “impossible.”

There was also grumbling — excruciatingly polite, of course — from conservative quarters. For example, in a July 16 Sankei Shimbun commentary, University of Tokyo Professor Emeritus and Japan Conference (Nippon Kaigi) Vice-Chairman Keiichiro Kobori opined in exquisitely polite, obtuse terms that the Emperor should not — could not? — retire, as doing so would potentially destroy the Japanese kokutai (national polity). For the historically inclined, to even see the term “kokutai” make an appearance in this context is unnerving, as it is closely associated with the age of prewar fascism, when one could be jailed for even questioning the political order.

The postwar Constitution is silent on the subject of abdication. Article 2 simply says, “the Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial Household Law passed by the Diet.”

What seems innocuous in English was revolutionary when written. In Japanese, the Imperial Household Law is not a “law” (hōritsu) but a tenpan (“canon”). Its predecessor, the “old IHL,” was not passed as a law through the Diet legislative process but promulgated in 1889 by the Emperor Meiji together with the nation’s first modern charter, the so-called Meiji Constitution.

That constitution was bestowed by the Emperor upon his subjects and was very different in a number of important respects. For starters, the Emperor was an extra-constitutional figure, “sacred and inviolable,” and reserving the power to make law “with the consent of the Diet” — unless there was a national emergency, in which case the Emperor could rule by decree. (Prime Minister Shinzo Abe is currently seeking similar powers for the Cabinet through constitutional change.)

The old IHL was more substantial than the current one, which like the Constitution is a product of the Occupation period. Those aspects of the Emperor’s role as the centerpiece of State Shinto — references to specific religious ceremonies and sacred regalia — were excised from the current IHL, reflecting the separation of government and religion mandated by the current Constitution.

The old law even contained special rules for civil litigation among kōzoku (members of the Imperial family excluding the Emperor) and suits against kōzoku brought by commoners. Royals could only participate in the latter cases through representatives, being forbidden from dirtying themselves by appearing in court personally. Leave of the Emperor was also required in order to detain or summon any kōzoku to a court of law. The current law is silent on how royals factor into the judicial process. The few quirky cases that have touched on the issue provide little guidance.

Whereas the old law addressed the finances of the Imperial household, these are today covered by a separate statute, the Imperial Household Finance Act. The American occupiers also sought to subjugate the Imperial family financially, stripping it of much of its wealth and making it dependent on the Diet for succor. (To prohibit the Imperial household from re-accumulating the vast wealth it had before the war, the Constitution also prohibits gifts or transfer of property to royals without Diet approval.)

A practical difference between the old and new IHL regimes may simply be that the Imperial family used to be much larger. This was because in the past, kōzoku status transmitted down the male lineage indefinitely, even to those far removed from the throne. Moreover, under the old IHL, male Imperial children born out of wedlock could even inherit the throne. Both the Meiji and Taisho emperors were born to concubines. The current IHL limits succession to legitimate male heirs.

The problem of possible kōzoku overpopulation was partially addressed in 1907 through a supplement to the IHL permitting lesser princes to descend to the realm of mere aristocrats. Misbehaving royals could also be stripped of their status as punishment. Princesses who married commoners also lost their royal status (as is still the case today).

The real size reduction came during the Occupation, which saw 11 branches of the Imperial tree chopped off and 51 kōzoku reduced to commoners. Perhaps the Americans under Gen. Douglas MacArthur went too far; absent radical (=impossible) change, the Japanese monarchy may be reduced to a single nuclear family within a generation or two.

This would be problematic. Despite his symbolic status, the Constitution actually requires rather a lot of the Emperor, as he indicated in his speech. The Emperor promulgates laws, hands out honors, receives ambassadors and so forth. If he is temporarily incapacitated or unavailable, by law the next member of the family in line may perform these duties as a temporary proxy. In the future there may not be enough adult royals to perform all of these roles and duties.

The IHL thus started out as constitutional in its own right, a relationship illustrated Article 74 of the Meiji Constitution stating that Diet deliberations were not required to amend the IHL, but that the IHL could also not be used to amend the constitution. The two documents were essentially coequal charters for different spheres of the Japanese polity: the Imperial household and everyone else.

This is why Article 2 of the Constitution was revolutionary: It unequivocally subjects the Emperor to the Diet. Although notionally subordinate to the Diet, the Emperor is also supposed to be pristinely apolitical. Whereas the old IHL could be changed without Diet involvement, under the current constitutional system, for the Emperor to even hint about his views on the subject means he is advocating a particular course of legislative action, an inherently political act. While the majority of Japanese are reportedly sympathetic to the Emperor’s predicament, some constitutional scholars have already expressed concern about setting a precedent for the use of Tennō no o-kimochi (the feelings of the Emperor) for political goals.

But his may already be happening. On Aug. 7 the Sankei Shimbun and Fuji TV conducted a public opinion poll in which 84.7 percent of respondents said they favored amending the Constitution to allow the Emperor to abdicate. Given that amendment of the Constitution (as opposed to the IHL) may not actually be necessary to enable the Emperor to do so, this was more than a little misleading and suggests a pro-amendment agenda that lies elsewhere — in the tweaks that conservatives will doubtless wish to slip in “while we’re at it.”

More recently, the Cabinet Legislation Bureau has reportedly expressed the view that constitutional amendment is necessary for abdication. Based on a seemingly strained reading of Article 1, which says the Emperor derives his position from the “will of the people,” this view comes a bit late, weeks after others have opined that no amendment is necessary, and reeks of “task-based” constitutional interpretation. This becomes more apparent when you look back at the CLB’s willingness to dramatically amend its views on the far more specific wording of Article 9.

Commentators like professor Kobori have suggested a regency is the solution. A regency can be declared if the Emperor is incapacitated or a minor, in which case the constitutional duties are performed by the regent. Emperor Hirohito acted as regent during the last five years of the reign of his sickly father, the Taisho Emperor.

Under the IHL the regent or proxy would typically be the next adult male in line to the throne. If no princes are available, empresses, empress-dowagers or princesses would be tapped to perform the role. This is about as close as a women can get to being an emperor under current Japanese law.

Clearly a tremendous amount of thought went into drafting the IHL yet both the old and new versions are silent on the subject of abdication. The law does permit princesses and lesser princes above the age of 15 to abandon their kōzoku status. No such provisions are made for the Emperor, Crown Prince or other senior princes. This was not a careless oversight; after all, there are historical precedents for abdication.

When the original IHL was drafted, there was reportedly rigorous debate about whether it should permit the order of Imperial succession to be changed if the person in line to inherit the throne was physically or mentally incompetent to do so. However, this would have opened the door to politicized dynastic struggles. The same logic presumably applies to abdication: It could potentially politicize emperors, both by enabling them to use the threat of abdication for political reasons, but also by making it possible to coerce them into retirement.

Another objection to abdication seems to be that it would involve essentially acknowledging the status of Emperor to be that of a mere yakushoku, a job or role that can be cast off. Some conservatives seem still wedded to the Emperor being an indelible status with deeper significance, inextricably tied to the nation’s historical roots and religious traditions. Until Emperor Hirohito came out as a mere human in his Jan. 1, 1946 radio announcement, the polite fiction was that emperors were awarebito-gami — gods in human form. Now there’s some kokutai for you!

For his own part, Emperor Akihito made his own views on the subject clear in his address by repeatedly describing what he does by using some variation of the term tsutome, a term generally used to refer to a role or function, not an embodiment.

More recent reports indicate that the government is considering enacting a special law that would allow just Emperor Akihito to retire, rather than amending the IHL to permit abdication. Given that the Constitution mandates the IHL as the locus for the rules of succession, this would be an interesting compromise indeed. Such an approach would certainly have the merits of allowing the government to avoid dealing with other issues of the Imperial household, such as the fact that there is but a single male child in its youngest generation, and that even allowing Imperial princesses to keep their status after marriage won’t resolve this problem either, unless their children are also made eligible to carry on the lineage — something for which there is no historical precedent.

Anyway, I personally am hoping the government opts for a regency as the solution. This is only because the Meiji Constitution prohibited constitutional amendments during a regency while the current Constitution contains no such impediments. Some of the conservatives plugging for constitutional amendment do so in part out of reverence for the Meiji charter and distaste for the current, supposedly defective one. So it would be fun seeing how they deal with that little conundrum.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land usually appears on the second Monday Community Page of the month, but there will be no newspaper on Sept. 12. Comments: community@japantimes.co.jp