Issues | LAW OF THE LAND

No country for old emperors

by Colin P.A. Jones

Special To The Japan Times

On Jan. 23, the committee of experts appointed by Prime Minister Shinzo Abe to consider if and how Emperor Akihito should be permitted to abdicate announced its findings. While not containing any formal recommendations, their report unsurprisingly pointed to the solution the government had been mulling before they even went to work: a one-off statutory fix that would satisfy the current emperor’s desire to be relieved of his duties but not institutionalize rules of abdication that could also be used by future occupants of the Chrysanthemum Throne.

Most foreign observers seem baffled by the apparent complexity of the issue — why not just let an 83-year-old monarch in declining health retire and live in peace? The vast majority of Japanese people are also reportedly in favor of allowing this to happen, so many of them are likely mystified as well.

It helps to understand that Article 2 of the Constitution, which declares that Imperial succession shall be “in accordance with the Imperial Household Law passed by the Diet,” is the byproduct of some very significant history. Before the current charter was enacted Japan effectively had two constitutions: one for the people (the so-called Meiji Constitution of 1889) and one for the Imperial family. Being the rules the emperor set for his own family, this latter constitution could not be changed by the Diet. These rules, modified to comport with the new Constitution, are what is now called the Imperial Household Law (though in Japanese it is not called a “law”). Article 2 thus reflects the clear — indeed, revolutionary — subordination of the Imperial system to the Diet.

So, as a starting point, there is likely more residual reluctance to amend the IHL than if it were just another statute. During the seven decades since it was enacted in its current form it has only been amended once — in 1949 — and for entirely technical reasons. The Constitution is clear, however, that rules of succession will be in the IHL. The IHL, in turn, only anticipates succession on death, making being the emperor the ultimate form of “lifetime employment.” To allow Emperor Akihito to retire through a special statute would be cheating on a basic level.

The committee of experts was ostensibly considering ways to reduce the burdens of the Emperor’s office, not how to let him retire. Yet there is already a law that allows the constitutional duties of an emperor to be performed by a proxy (another member of the Imperial family) when he is temporarily incapacitated. In the event that an emperor is still a child when he succeeds to the throne, or is afflicted by serious mental or physical disease or other impediments, the IHL allows for the appointment of a regent, i.e., someone who stands in for a monarch until he is of age, dies or is cured of his infirmity.

Thus, as at least one commentator indicated to the committee, there was simply no reason for the government to pass a special law, since the Emperor’s infirmity could be addressed through the application of existing law. That being the case, if the government did pass such a law, it would be constitutionally suspect because it would have come into being not out of necessity but through the instigation of the Emperor himself, a serious departure from the strictly apolitical, symbolic role envisioned in the Constitution. While interesting, this type of argument will probably fade into the background as a nugget of enjoyable but largely pointless constitutional theory. (Among other things, I can’t envision how anyone would ever bring a meaningful legal challenge to whatever the government ends up doing, whether through a special statute or otherwise.)

However, appointment of a regent would be a solution with problems of its own. Ironically, the first is that under the criteria set forth in the IHL, a regent should not be needed if the Emperor is compos mentis and able to articulate cogent reasons for wanting to abdicate. This could be resolved by essentially adding some sort of “retirement age” for emperors to the IHL. The problem with any fiddling with the IHL is that it opens up a Pandora’s box of issues — such as revisiting rules that treat members of the Imperial family differently depending on their gender and prevent women from taking the throne.

Another thing with regents is that under the IHL the role is to be performed by other members of the Imperial family, with the crown prince designated as first in line for the role. The most recent example of a regency was between 1921 and 1925, when then-Crown Prince Hirohito served as regent for his physically and mentally infirm father, the Taisho Emperor. (Interesting aside: One of the points raised during the committee meetings was that this period was peaceful for Japan in part because of the regency, in that Hirohito, being a mere junior officer in both the army and navy, could not justify military adventures on the will of the Emperor, their supreme commander, since he was clearly incapacitated.)

However, while there have dozens of regencies over the long history of the Imperial system, instances of the person acting as regent being the crown prince or other prospective heir to the throne account for only a handful of these. Thus, the regency mechanism established by the IHL (which establishes an order of precedence for who should act as regent, starting with the Crown Prince) is a modern deviation from historical practice.

So what? Well, given that the Emperor is now constitutionally the symbol of the nation, having the crown prince act as regent for an emperor who is still alive and possibly active could bifurcate and dilute the symbolism of the role. Emperor Akihito could easily live to be 100, leaving Crown Prince Naruhito to act as regent, performing symbolic roles without the symbolic title, before finally succeeding to the throne well into his 70s. How would he viewed by the people after two decades in the nebulous role of regent?

Since it approached the problem from the perspective of how to lessen the burden on the Emperor, the committee divided his activities into three categories. The first was “acts in matters of state.” These are mandated by the Constitution, performed with the advice and consent of the Cabinet, and include promulgating laws, appointing or attesting the appointment of various government officials, granting honors and amnesties, opening and dissolving the Diet and receiving foreign ambassadors. These acts can be performed by a duly appointed proxy.

The second was “other public activities.” These are not in the Constitution but cover a broad variety of other public activities that it has become customary for the Emperor to perform as part of his role as the symbol of the nation, such as consoling victims of natural disasters and state visits to foreign countries. Since these account for a significant part of the Emperor’s workload but are outside the scope of activities that can be performed through proxies, the committee noted that greater application of existing law was also unlikely to be a solution.

Finally there were “other activities,” which include the eclectic list of court rituals, as well as visiting shrines, residing in palaces, watching sumo and doing marine biology research. Some of these, however, are essentially code for “prayer,” which raises another subtle, potentially deep constitutional issue: the separation of religion and government.

More than one of the witnesses advising the committee expressed the view that the Emperor’s single most important duty was to pray for the nation. Currently, the role the Emperor plays as a leading figure in the Shinto religion is performed under the rubric of the private affairs of the Imperial household, yet it is a role with a far longer history than the current constitutional one.

How this would work if the Emperor abdicated is likely to be a key consideration, yet one that nobody in government can likely discuss, at least openly. A hint of it was seen when the Imperial Household Agency effectively quashed proposals to have whatever transition does happen occur on Jan. 1 — thereby preventing the confusing occurrence of a calendar year that straddles two different regnal periods — by declaring that the Emperor would be too busy with other things on that date. (The agency’s website lists two separate religious rituals performed on that day.).

Predictably, the committee’s findings do not dwell on these “other activities,” but what they discussed was as interesting as what they did not. For example, the minutes of the committee meetings show various discussions about whether more could be done by other members of the Imperial family.

There seemed little discussion of the more serious problem: that over time there will be fewer members of that family to help — perhaps even fewer if future emperors are free to quit. Talk of amending the IHL by the committee — whether to allow for abdication or expand the range of situations in which a regent can be appointed — avoided the merits of other amendments, such as allowing empresses.

For his part, Abe thinks that reviving some branches of the Imperial family lopped off during the U.S. Occupation or allowing existing members to adopt males into the household could be a solution, though that would also require amending the IHL, which currently prohibits adoption by Imperial family members.

Not allowing Emperor Akihito to abdicate is probably not an option. In fact, historically it has been a common practice; as noted by the committee, of the 124 emperors Japan has had, 58 retired from the throne alive. Whatever debate remains to be had will likely be split over whether to institutionalize the practice of abdication or treat Emperor Akihito as a special case. The committee was dutifully able to identify many problems with the former approach and few with the latter, though one wonders if the difference will prove to be significant in retrospect. In reality, the one-off approach is preferable because it is easier to deal with politically.

If the Emperor is the symbol of the people, deriving his position from the will of the people — as it says in the Constitution — arguably the Diet should be leading the debate, not the Cabinet. Grumbling from opposition members about the Diet being treated as a mere “subcontractor” in the process, is indicative of how the legislative process will likely progress.

Whatever legislation is proposed will be proposed by the Cabinet and shepherded through the legislature by the Liberal Democratic Party using its comfortable majority in both houses to minimize debate and opportunities for the opposition to challenge the process or ask difficult questions like “Why not a female emperor?”

Most likely Emperor Akihito will get his much-deserved retirement. But given the longevity of Japan’s recent emperors, and of the Imperial system itself, the full repercussions of the manner in which it is accomplished will probably only be known after a span measured in decades, if not centuries.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Your comments and story ideas: community@japantimes.co.jp