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Different constitutions, similar defect?

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Contributing Writer

The prewar constitutional scholar Toshiyoshi Miyazawa was said to have taught his subject backward, starting at the end of the so-called Meiji Constitution and working his way forward. That way he could always reach the semester’s end before getting to Chapter 1, which defined the powers of the Emperor.

An academic backwater today, Imperial powers were an area of law that, handled incorrectly, could threaten careers, even lives. Former Tokyo University professor Tatsukichi Minobe was driven from the House of Peers and investigated on suspicion of lese majeste in 1935 for describing the Emperor as an organ of the state. (He was wounded by a right-wing extremist the following year.)

The “organ of state” theory was not new or, until then, even controversial. Minobe first wrote about it in a 1912 book, and it reflected the prevailing academic and official understanding for the first three decades of the 20th century. Times had changed, not constitutional theory.

In a great new book, “Futatsu no Kenpo to Nihonjin: Senzen, Sengo no Kenpokan” (“Two Constitutions and the Japanese: Prewar and Postwar Constitutional Attitudes”), Hokkaido University history professor Akihiro Kawaguchi offers a fascinating account of the rise and fall of the Meiji Constitution and its impact on constitutional attitudes today.

In Kawaguchi’s telling, Japan’s first modern constitution had three fundamental defects. It could not be applied as written. It thus had to be adjusted — amended — interpretively. Paradoxically, this meant that political movements seeking to defend the Constitution rendered it dysfunctional. Arguably the same types of problem are evident today, though Kawaguchi does not quite come out and say so.

The Meiji Restoration of 1868 was a coup d’etat by political outsiders. The coalition of leaders who pulled it off needed legitimacy. This was a problem; having led Japan through 250 years of peace and prosperity, the Tokugawa shoguns were a tough act to follow.

Clothed in a supposedly unbroken lineage tracing back to Japan’s founding deities, emperors offered Meiji leaders the ultimate authority figure. The trick was getting the young incumbent, the Emperor Meiji, in front of the newly de-feudalized populace quickly. A five article proto-constitution, the Charter Oath was issued in his name in 1868 when he was just 15. His image was managed, evolving from blurry awkward teenager in court robes to young generalissimo still figuring out how chairs worked to exalted head of state whose official portrait adorned schools and public buildings nationwide. Yet even this 1888 picture was oddly symbolic of the artifice underlying the constitution to come. It was painted by the foreigner-for-hire Italian artist, Edoardo Chiossone, who started from a photograph of his own torso dressed in martial splendor and then painted in the emperor’s face.

Similarly tainted with foreign influences, the Meiji Constitution was bestowed upon the nation as a gift from the Emperor in 1889. At the promulgation ceremony the Emperor recited the edict of promulgation to the assembled dignitaries before handing the charter to his prime minister. The theater involved in making the Constitution appear to originate from the Emperor himself required inventing a new first person imperial pronoun, prior tradition being that his majesty’s words were conveyed by an underling.

In constitutional monarchies elsewhere, sovereigns reigned but did not rule. This allowed them to be unassailable; bad policies were the fault of ministers or officials. In Japan, however, the Tokugawa shoguns had demonstrated how delegated power could lead to its usurpation and the pre-Restoration political missteps of Meiji’s father, the Emperor Komei, were still fresh in memories. Moreover, decades after the Restoration there was still unrest; the Minister of Education was assassinated by an extremist on his way to the promulgation ceremony. The Meiji constitutional system thus had to rely on two fictions to be viable: that the Emperor ruled directly and that he and thus his constitution were infallible. The result was a charter that could not be applied as written, yet could not be openly interpreted otherwise.

The first generation of leaders could cynically live with this contradiction. So could the heads of nascent political parties struggling for seats at the table. They could argue that, although the Constitution made no mention of political parties, the Charter Oath (which declared “all governmental matters shall be determined by public discussion”) and Imperial Diet represented a clear imperial mandate in their favor.

Political parties went on to enjoy a brief period of ascendancy. The impossible premises of direct rule and infallibility held, partially thanks to the mythical status attained by the Meiji Emperor. His son, the Taisho Emperor, however, was sickly and mentally incapable of continuing the legacy. The government’s solution was to double down on deifying Meiji both literally (the shrine in Harajuku bearing his name) and in the public mind, including by retaining his birthday as a holiday (now Culture Day).

Subsequent generations of leaders grew up with the mythology of Meiji and his constitution. Some even believed it and came to view party politics as constitutional aberrations that turned the Diet into a place where majority rule stifled the “public discussions” mandated by Meiji.

This view ultimately manifested itself in the 1940 establishment of the Imperial Rule Assistance Association, which rejected political parties but had no meaningful platform. This was in part because it was a failed effort by Prime Minister Konoe Fumimaro to amend the Constitution interpretively by replacing the fiction of direct imperial rule with one where the entire nation became members of a single party that exercised his powers collectively. This effort was criticized as unconstitutional and reminiscent of the Tokugawa-era usurpation of imperial powers, the rejection of which was the foundation of the Meiji political system.

Early in Hirohito’s reign reform-minded militarists emerged. Rising through the ranks of both the military and the civilian bureaucracy, their numbers included Prime Minister Shinzo Abe’s grandfather, Nobosuke Kishi. Entering the scene after World War I, their goal was to prepare for total war by centralizing control of military and economic resources. Unfortunately, they ended up marginalized, their grand schemes being incompatible with Meiji’s constitution and even smacking of communism. The National Mobilization Act of 1938 — which empowered the government to seize control of industries for war — seems like a victory in retrospect, but in Kawaguchi’s view was passed by a Diet that assumed it would never be applied.

The legislation was criticized on constitutional grounds — that by giving Cabinet emergency powers, the law usurped the constitutional powers of the Emperor to rule by decree. Constitutional concerns also meant that even when total war came, the forced requisitioning allowed by the law generally didn’t happen — property rights had also been bestowed by Meiji and couldn’t be lightly infringed. The military became a reliable captive customer to industry and right up to the end the government relied mostly on compelled “voluntary” behavior rather than formal legal compulsion to achieve most of its goals.

Control over Japan’s military was a central problem. Under the Meiji Constitution, the Emperor was supreme commander, having a direct relationship with the military largely unconstrained by civilian law or authority. This helped doom the efforts of the total war militarists to unify military, political and economic control. For anyone other than the Emperor to control the military was constitutionally unacceptable, even if it was a total war Cabinet led by a present or former general.

For its part the Diet could only exercise budgetary control and efforts by reformist technocrats to reduce the size of the army in exchange for equipping it with modern weapons were rejected by staff officers concerned as much with post-retirement sinecures as they were with victory. The arguments this struggle generated contributed to the disastrous emphasis on the spiritual prowess of Japanese soldiers as the key to victory, rather than modern military technology.

Even centralized control of the military was impossible; just as the chief of general staff — which exercised operational control of the army — could claim to be responsible only to the Emperor by dint of direct appointment, so could the army minister (who oversaw its budget and administration) as well as the commanders of individual armies, such as the Kwantung Army responsible for expanding hostilities in China. The establishment of an “Imperial Headquarters” in 1937 is regarded by Kawaguchi not so much as an acknowledgement of Japan’s new undeclared war in China, but an effort to ensure military personnel knew whose orders to obey, particularly given the coup attempt by army officers the previous year.

During the Pacific War, Tojo Hideki tried to resolve constitutional disunity by serving not only as both prime minister and army minister, but also holding the education, foreign affairs and home affairs portfolios at various points. He was also chief of army general staff, a comingling of roles that attracted criticism as more Tokugawa-style usurpation.

The Meiji Constitution’s fundamental paradox played out through the end of the war. It took orders from Hirohito himself to achieve peace, yet subsequent leaders had to absolve him of responsibility for starting and prosecuting a war he was demonstrably able to end.

And what of Japan today? The ruling Liberal Democratic Party uses its parliamentary majority to stifle meaningful debate with permanent opposition parties whose primary aim is to obtain enough Diet seats to block constitutional change by arguing the current charter — Article 9 in particular — is sacred and inviolate, just like its Meiji predecessor. Frustrated by an inability to make even needed amendments, Abe has sought change through re-interpretive shenanigans. Only history will tell whether this will end up again rendering the Constitution dysfunctional — as opposed to just meaningless.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.