Handbook on the Research Report on the Constitution of Japan

Research Commission on the Constitution
House of Councillors
JAPAN

2005

Office of the Research Commission on the Constitution
House of Councillors
House of Councillors East Annex
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Foreword
The Research Commission on the Constitution of the House of Councillors
conducted a broad and comprehensive study on the Constitution of Japan since theCommission’s establishment on January 20th, 2000. The Commission compiled five
years and three months’ worth of research results in the Research Report on theConstitution of Japan and submitted it to the President of the House of Councillors
on April 20th, 2005.
This handbook has been made to help you learn the essence of the Report.

Research Commission on the Constitution
House of Councillors
National Diet of Japan

CONTENTS

Ⅰ Regarding the Research Commission on the Constitution

1

Ⅱ The Five Years After the Establishment of the Research Commission on theConstitution (from January 2000 to April 2005)

Ⅲ Major Issues Discussed in the Research Commission on the Constitution

37

1. Issues upon Which Common Understandings, Completely or Generally,
Have Been Reached

8[General Theory](1) Three Major Principles (Popular Sovereignty, Respect for Fundamental
Human Rights, and Pacifism)

8“The importance of these three principles will never be changed.”(2) Roles That the Current Constitution Has Played

8“The current Constitution has played significant roles in our lives.”[Popular Sovereignty](3) Firm Maintenance and Further Development of Popular Sovereignty

9“It is the people who have the final say over the issues concerning the state.
This will never change.”[Emperor](4) Maintenance of the Philosophy That the Emperor Is the Symbol of the State
9“The current philosophy that the Emperor is the symbol of the state has been
supported by the people. It is a firmly established notion among them.”(5) Official Duties“There are various official duties for the Emperor to fulfill.”10(6) Female Emperor

11“We may have to approve of a female emperor on the throne in the future.”[Pacifism and Security](7) Firm Maintenance of Pacifism

11“Peace is a common goal for all humans. We must maintain the provisions
that pledge for peace.”(8) Preservation of the First Paragraph of Article 9

12“We should continue to adhere to the principle of rejecting the wars of
aggression. We should never compromise it.”(9) Right of Individual Self-Defense

12“Japan retains the right to protect itself against attacks from outside.”(10) Necessity of Having a Minimum Self-Defense Organization

13“We need to consider measures to protect ourselves.”(11) Civilian Control

14“We must keep the principle of civilian control that prevents the nation’s
self-defense organization from getting out of democratic control.”(12) Emphasis on the United Nations and Necessity of Its Reforms

15“The United Nations is a highly valuable organization. Japan should makeits utmost effort to make it better.”(13) International Contribution

16“The Preface of the Constitution denies the idea that we can only pursue ourown peace.”(14) International Cooperation, such as Official Development Assistance16“We cannot achieve world peace without solving current global problems
such as discrimination or poverty.”

[Fundamental Human Rights](15) Respect for Fundamental Human Rights

17“Respecting fundamental human rights is a significant idea that we must
maintain.”(16) Respect for International Human Rights Laws

18

“We must observe the international standard regarding the protection ofhuman rights.”(17) Respect for the Human Rights of Women, Children, the Physically
Challenged, and Minorities

18“We must remove the discriminations based on social status.”(18) Respect for the Human Rights of Foreigners

19“The Constitution must protect the human rights not only of Japanese but
also of foreigners.”(19) Importance of Social Rights

20“The current Constitution specifies the right to pursue the realization of acomplete welfare state.”(20) Guarantee of New Human Rights

20“There are new human rights that the Constitution does not cover.”[The Diet](21) Separation of Powers

21“The importance of the check and balance system of the three powerfulorganizations will never be diminished.”[The Bicameral System and the House of Councillors](22) How the Bicameral System and the House of Councillors Should Be

22“We must maintain the bicameral system to reflect the will of the people andto make careful deliberations.”[The Cabinet](23) Parliamentary Cabinet System

23

“Unified coordination between the legislative body and the administrative
one enables the realization of a coherent democracy.”[Judiciary](24) Prohibition of the Establishment of an Extraordinary Tribunal

24“A legal system that protects people’s human rights should not be more thana single system. Otherwise, it would cause confusion.”(25) Facilitation of the Legal Process

24“The facilitation of the legal process is necessary to guarantee people’s
rights.”[Finance](26) Necessity of Providing Financial Assistance to Private Educational
Institutions

25“Financial assistance to private educational institutions by the state isnecessary to guarantee people’s right to education.”(27) Examination of the Final Account of the State

26“The House of Councillors is clearly different from the House ofRepresentatives in terms of functions by emphasizing its role of examining
the final account of the state.”[Local Self Government](28) Relationship Between the Central Government and the Local Governments
26“Decentralization of power from central government to local governments has
to be promoted. They have to stand on an equal footing.”(29) Local Finance27“Mere transfer of power would not be enough. Appropriate financial
allocation will be necessary for local governments to be fully independent.”(30) Promoting the Autonomy of Local Residents

28“We must create local communities where the residents’ opinions will beclearly and flexibly reflected in their management.”

(31) Strengthening the Functions of Lower-Tier Governments

28“Strengthening the functions of each citizen’s community, such as cities,
towns, and villages, will be necessary.”(32) Decentralization of Power from the Central Government to the Local
Governments

29“We must deal squarely with the issue of decentralization of power, partly to
improve the welfare of local residents.”[Amendments and Supreme Law]
(33) National Referendum System

29“We must maintain the national referendum system for the people to exercise
their sovereign right before amending the Constitution.”

2.

Predominant Views

31[Fundamental Human Rights](1) Stipulation of New Human Rights in the Constitution

31“To guarantee new human rights, we should stipulate them in theConstitution.

Weshould

not

leave

them

vulnerabletodifferentinterpretations of the Constitution. It would cause confusion.”(2) Privacy Rights

31“We need to incorporate the mention of protecting privacy rights in theConstitution.”(3) Environmental Rights

32“The Constitution needs to stipulate the environmental rights for us and our
future generations.”[The Cabinet](4) Qualifications to be the Prime Minister and the Ministers of State

33“The people elect the members of each House, who choose the Prime
Minister. This is a way to maintain the democratic political system.”[Finance](5) One Year Budget Principle

34“We should start by examining the mechanism of the nation’s budget system
to reduce the waste of tax money and the national deficit.”[Future Challenges](6) The Future of the Research Commission on the Constitution

34“What should we do to involve more people in the discussions about theConstitution?”

3. Major Issues with Separate Views

36[The Preface of the Constitution](1) Philosophy and Contents of the Preface

36“The Preface stipulates the philosophy of the Constitution. Should otherelements,

includingJapan’shistory,

tradition,andculture,beincorporated?”[The Emperor](2) Head of State

37“Should the Emperor be referred to as ‘Head of State,’ under the current
philosophy that the emperor is the symbol of the state?”[Pacifism and Security](3) Pros and Cons of the Necessity of Amending the Second Paragraph of
Article 9

37“Should the use of force and the right of belligerency for self-protection beallowed?”(4) Pros and Cons of Permitting the Right of Collective Self-Defense

39“What defines ‘the right of collective self-defense’? Do we need it to protect
ourselves?”(5) Stipulation of the Self-Defense Forces in the Constitution

40“The current Constitution is interpreted as allowing the SDFs and the rightof self-defense. Should they be specified in the Constitution?”(6) Stipulation of International Contributions in the Constitution

41“What international contributions is Japan asked to make? How should
Japan respond to the requests for these contributions?”(7) Stipulation on Emergency Situations in the Constitution

42“The current Constitution does not include provisions on how to handle
national emergency situations. Will it be necessary?”[Fundamental Human Rights](8) Relationship Between Human Rights and Public Welfare

44“How should personal benefit and social interest be balanced?”(9) Rights and Duties

44“How should the Constitution balance the rights and duties of the people?”(10) Foreigners’ Right to Vote

45

“Foreigners in Japan are not allowed to vote. Should they be given the rightto vote in local elections?”(11) Freedom of Expression

46“How should the Constitution balance the rapid development of mass media
and information technology with Privacy Rights?”(12) Separation of State and Religion

47“How should the Constitution deal with the relationship between the state
and religion?”[The Cabinet](13) How the Cabinet Should Be, and the Enhancement of Its Functions

48“What does Japan need in order to reform itself? Is it the enhancement of
the leadership of the Cabinet, or that of the functions of the Diet?”(14) Direct Election System of the Prime Minister

49“Should we introduce a system where the people directly elect the Prime

Minister?”[Judiciary](15) Establishment of a Constitutional Court

50“Should a constitutional court be established to specialize in the mattersrelated to the Constitution?”[Finance](16) Stipulation of the Financial Assistance to Private Educational Institutionsin the Constitution

51“Should the constitutionality of providing financial assistance to private
educational institutions be specified in the Constitution?”(17) Board of Audit

52“One of the major roles of the House of Councillors is to examine the final
account of the state. Does this serve as a rationale to make the Board ofAudit an affiliate organization of the House of Councillors?”[Local Self Government](18) Local Referendum System

53“Should the system for local residents to cast their ballots to decide on theirlocal policies be legislated?”(19) Do-Shu System

54“Should we expand the current framework of local autonomy, beyond theconventional prefectural system?”[Amendments and Supreme Law](20) Requirements for the Amendments to the Constitution

56“Should the current requirements to initiate the amendments of theConstitution be eased?”<Appendix>
The Constitution of Japan
Acknowledgement

1

IRegarding the Research Commission on the Constitution (From page 1 to 13 of
the Report)

The Research Commission on the Constitution was set up in each House on January
20th, 2000, the opening day of the 147th ordinary Diet session, “in order to conduct
broad and comprehensive research on the Constitution of Japan (Article 102-Ⅵ of
the Diet Law).” This marks the first time since the enforcement of the current
Constitution that a formal research organization on the Constitution has been
established in each House.
Historically, the Cabinet had a Research Commission on the Constitution, an
official organization of Diet members and experts who conducted research on theConstitution. The Commission submitted a report on its research to the Diet andthe Cabinet in 1964. The Commission, however, failed to win all parties’ support
due to the objections by some of the political parties that feared that theestablishment of an official research organization on the Constitution could
automatically lead to constitutional amendments.
The Research Commission on the Constitution we have today has been set up ineach House (the Japanese Communist Party and the Social Democratic Party
opposed its establishment). Research work started with the participation of all
parliamentary parties. After a five-year deliberation, the Commission of the Houseof Councillors submitted its report to its President.
The Research Commission on the Constitution of the House of Councillors is madeup of forty-five members. The Commission has nine directors. The Chairman of theCommission is chosen by its members. The Chairman organizes directors’ meetings
to discuss the management of the Commission.
The Rules of the Research Commission of the House of Councillors allow theCommission to be in operation whether or not the Diet is in session. In addition,referral by a member of the House of Councillors is not necessary to sit in on theCommission. These differentiate the Commission from other standing committees.
When the Commission was established, the Board of Directors of the Committee on
Rules and Administration agreed on the following three points:

21) The Research Commission on the Constitution shall have no right to submit bills.
2) The research work shall be completed approximately in five years.
3) The Chairman shall appoint an acting Chairman from among the directors of thelargest parliamentary opposition party.

3

Ⅱ The Five Years After the Establishment of the Research Commission on theConstitution (from January 2000 to April 2005)(From page 15 to 37 of the Report)
During the first year starting in January 2000, the Commission invited a broad
range of intellectuals as guest speakers to discuss the grand design of the nationthat serves as a foundation for the Constitution. The discussions incorporated theviews of those intellectuals on the country’s civilization and history. As for thehistorical process of drafting the current Constitution, we invited former staff
members of the General Headquarters of the Supreme Commander for AlliedPowers (GHQ), and listened to their experiences and views. (*)
In 2001, we started research on different areas of the Constitution. We set up thefour themes of individual research: “General Theory,” “Popular Sovereignty andGovernment,” “Fundamental Human Rights,” and “Pacifism and Security.” These
areas of research were completed in and after the fall of 2004, when supplementaryresearch on the Constitution as a whole was conducted. After more opinion
exchanges among the Commission members, the completed report was compiled
and submitted to the President of the House of Councillors on April 20th, 2005.
Before the submission of the report, several opportunities for broader discussions
were provided. The Subcommittee on the Bicameral System and the House ofCouncillors was set up in February 2004 for these intensive discussions. They
compiled the contents of the discussions in a subcommittee report. Open hearings
were also held on Popular Sovereignty and Government, Fundamental Human
Rights, Pacifism and Security, and Future Japan and its Constitution, in February
2002, May 2002, June 2003, and February 2005, respectively. There are 118 guest
speakers who have participated in the discussions of the Commission, including
those in the subcommittee. Thirty-one people spoke at open hearings.
Furthermore, delegations of the House of Councillors mainly composed of membersof the Commission were sent overseas four times. The mission of the delegations
was to do hands-on research on the circumstances surrounding the constitutions ofother countries.

4

The activities of the Research Commission on the Constitution
The Research Commission on the Constitution was established on Jan 20th, 2000.
First Research Year
-January 2000
“Research from the views of intellectuals on the country’s civilization and history”
・Opinion exchanges among the members
・Discussions with guest speakers, including students and former GHQ staffers
・Research by overseas delegation (USA)Second Research Year
-March 2001
“Research on Popular Sovereignty and Government”
・Opinion exchanges among the members
・Discussions with guest speakers, Open hearing
・Hearing of the views of the Cabinet Legislation Bureau and the Supreme Court
・Research by overseas delegation (Germany, Spain, UK)
Third Research Year
- April 2002
“Research on Fundamental Human Rights”
・Opinion exchanges among the members
・Discussions with guest speakers, Open hearing
・Hearing of the views of “The Japan Federation of Bar Associations” and human rights
organizations and others
・Research by overseas delegation (Italy, Belgium, France, EU)
Fourth Research Year
-May 2003“Research on Pacifism and Security”
・Opinion exchanges among the members
・Discussions with guest speakers, Open hearing
・Research by overseas delegation (Costa Rica, Canada, UN)
Fifth Research Year
-April 2004
“Research on General Theory”
・Discussions with guest speakers
・Opinion exchanges among the members-October 2004
“Supplementary research on the Constitution as a whole”
・Opinion exchanges among the members
・Discussions with guest speakers
・Reports by each parliamentary group on the current status of their discussions on the issuesof the Constitution-February 2005
“Comprehensive opinion exchanges”
・Open hearing, opinion exchanges among the members
・Report by the Subcommittee on the Bicameral System and the House of Councillors
The Research Report on the Constitution of Japan was compiled and submitted to the Presidentof the House of Councillors on April 20th, 2005

5(*) The following is the excerpt of the remarks by former GHQ staff members.
Beate Sirota Gordon,
Former Staff Member,
Government Section, General Headquarters of the Supreme Commander for Allied Powers“I was among the three people who were in charge of making drafts on human rights.
I was 22 years old. I lived in Japan for a decade before the war. I was well aware thatJapanese women did not enjoy fundamental human rights as I knew them. We lookedat the Constitutions of other civilized countries. We gave a lot of thought to whatrights Japanese women really needed. Our supervisors, such as Colonel Charles
Kades, did not allow the detailed descriptions of women’s welfare in the draft, sayingthat they should be stipulated in the Civil Code, though they agreed to mention
women’s fundamental rights themselves in the Constitution. The Japanese
Government opposed to the idea of incorporating women’s rights in the Constitution.
After fierce debates, voices that called for the guarantee of the women’s fundamental
rights resulted in Article 24.”

“I believe the Japanese Constitution is better in its quality than the Americancounterpart. I don’t think it was forced upon Japan. It deserves being protected.
When you discuss the future of the Constitution, do not forget to listen to Japanesewomen.”

Richard A. Poole
Former Staff Member,
Government Section, General Headquarters of the Supreme Commander for Allied Powers“I was 26 years old. I was the head of a committee concerning the Emperor andtreaties. We were told to substantially reduce the roles of the Emperor in the draft of
the new Constitution. That was to prevent the history from repeating itself that somemilitarists abused the authority of the Emperor under the Meiji Constitution. The
Emperor supported our plan of reducing his roles. It was a huge help for us. We aimed
to create a limited monarchy that has the Emperor as a symbol of the unified nation,
without sovereignty. The word ‘symbol’ was difficult to translate into an appropriate

6Japanese term, but eventually we were able to find the Japanese counterpart that theJapanese government happily accepted.”“As for Article 9, I expressed a concern about Japan giving up having military forces
forever, but my boss didn’t listen to me at all, saying that it was General MacArthur’sidea, so you couldn’t change it. The current Constitution has many provisions in it thatare very vague in their meanings and open for interpretation. This should becorrected. But I don’t support the idea of amending the whole Constitution. You
should deal with the issue of the amendments according to individual problems when
they arise.”

Milton J. Esman
Former Staff Member,
Government Section, General Headquarters of the Supreme Commander for Allied Powers“At first, I was opposed to the idea of GHQ making a draft of Japan’s new Constitution.
I was against it because I expected that Japanese people would feel they were forced
to accept the new Constitution made by a foreign country. I was afraid that it would
make our occupation of the country fairly difficult. Luckily, they accepted andcherished the Constitution because it represented what they wanted in politics.”“It is its basic principle that is the most important in the Constitution. As long as they
respect it, future problems related to the Constitution could be resolved byreasonably interpreting appropriate provisions. A formal amendment of theConstitution should be used as the last resort.”“One more thing I want to mention is that those working in the Government Section
at that time hoped that Japan, when it returned to the global community as a
productive member, would take a leadership role in international peacekeeping
activities under the direction of the United Nations.”(Mr. Esman was not present for health reasons. His message was read for him.)

7

Ⅲ Major Issues Discussed in the Research Commission on the Constitution(From page 39 to 233 of the Report)
This chapter presents the contents of some of the discussions from the ResearchCommission on the Constitution of the House of Councillors. They are from ‘The
Part 4, Summary’ (From page 223 to 233 of the Report).
The Research Commission on the Constitution of the House of Councillors
conducted“broad and comprehensive research on the Constitution of Japan” inaccordance with the stipulations of the Diet Law, and discussed a variety of issues
about the Constitution. We have reached agreements on some of these issues andhave not on others. Among the issues with conflicting views, some views have been
approved as “predominant views.”
We will present you with some of the major issues and main views of those
discussed at the commission.
The Japanese Communist Party and the Social Democratic Party participated in
the Commission’s discussions on the grounds that they would not allow thisCommission to serve as a stepping-stone to the amendment of the Constitution.
They opposed the approach of trying to “reach common understandings” on every
single major issue to orient the Commission in certain directions. The summary of
the Report, however, incorporates the views of both parties.

8

1. Issues upon Which Common Understandings, Completely or Generally, Have
Been Reached
Agreements have been reached on the following issues by all parties: the Liberal
Democratic Party, the Democratic Party of Japan, New Komeito, the JapaneseCommunist Party, and the Social Democratic Party. The word “generally” is added
to the issues with some conflicting views within some of the parties and/or withineach party.
(1) Three Major Principles (Popular Sovereignty, Respect for Fundamental Human
Rights, and Pacifism) (Relating to the Preface, Article 9, 11, and 97)
These three major principles of the Constitution have been a part of life in Japan forabout half a century since World War Ⅱ. It is broadly believed that we should
maintain these principles. (From page 46 to 47 of the Report)
Popular Sovereignty, Respect for Fundamental Human Rights, and Pacifism are thethree major principles of the current Constitution. Pacifism, particularly
characteristic of the Constitution, was originally stipulated in antiwar pacts afterWorld War Ⅰ, and later more widely adopted. The United Nations played asignificant role in the establishment of the philosophy after World War Ⅱ.
The Commission members highly valued these three principles. One of thempointed out that we should maintain them and make them more sophisticated.

(2) Roles That the Current Constitution Has Played
The Commission members agreed on the excellent quality of the current Constitution
and its long-term contribution to the peace, stability, and economic development of the
post-war Japan. (From page 48 to 49 of the Report)
The members agreed that the current Constitution made a great contribution to thepeace, stability, and economic development of the post-war Japan. Based on thatagreement, they discussed possible future shapes of Japan. The topics included how

9to establish a state where the Japanese people can find their national identity in its
Constitution, how to establish a state where we can work on the establishment offundamental human rights and take a global leadership role in closing the gaps
between advanced and less advanced countries in terms of their protection ofhuman rights, and how to build a state that emphasizes the importance of making
international contributions and protecting peace and humanity, rather thanpursuing a narrow-minded one-country pacifism.

(3) Firm Maintenance and Further Development of Popular Sovereignty (Relating
to the Preface)
The commission members agreed on the importance of maintaining the principle ofPopular Sovereignty and of developing it further. (Page 56 of the Report)
Historically, the idea of Popular Sovereignty started to replace Monarch’s
Sovereignty at the end of the 18th century. It was adopted in the constitutions ofmany countries as a foundation of democracy and ideal model for nations. Popular
Sovereignty is one of the three major principles of the current Constitution alongwith Respect for Fundamental Human Rights and Pacifism. It serves as a basic
principle that supports the country’s democracy and governing system.
The Commission members agreed on the continuous maintenance of the principle ofPopular Sovereignty and its further development.

(4) Maintenance of the Philosophy That the Emperor Is the Symbol of the State(Relating to Article 1)
For the last 60 years after the end of the war, the philosophy that the Emperor is the
symbol of the State has been widely accepted among the Japanese people. The
Commission members generally agreed on the policy of retaining the system. (Page 60of the Report)
Article 1 of the current Constitution stipulates that the Emperor is the symbol of
the State and of the unity of the people, and that his position derives from the will of

10

the people with sovereign power. Also, Article 4 states that the Emperor “shall nothave powers related to government.” The characteristic of the position of theEmperor is completely different from that of the Emperors under the Meiji
Constitution, who were given all governing powers.
The Commission received various views from the members on the Emperor system.
One member mentioned that the Emperor system has a cultural connotation to it inJapan, and that it has been historically very rare for an emperor to gain a direct
political power since the system began. Another one said that the Japanese people
have given unwavering love and respect to the imperial family, and that the
openness of the family to the people is really democratic and we should keep it thatway.

(5) Official Duties (Relating to Article 7)
The Commission members generally agreed that the Emperor has some official duties
that are not exactly constitutional functions but not purely private acts. (Page 63 of
the Report)
Constitutional functions refer to the acts performed by the Emperor based on his
constitutional position as the symbol of the State. It is believed that the functions
involve a national significance. It is also believed that the Emperor should not be
responsible for these functions he performs, in order to protect his neutrality as the
symbol with no influence in the nation’s politics.
However, there are some official duties that are not completely private acts by theEmperor. The Emperor’s address at the Opening Ceremony of the Diet serves as an
example. The Commission members generally agreed on this point.
The Commission also discussed the validity of the range of the Emperor’sconstitutional functions stipulated in the Constitution and the definition of theEmperor’s official duties. Some voiced an opposition to the concept of official duties.

11(6) Female Emperor (Relating to Article 2)
The Commission members generally agreed that we should consider having a female
Emperor in the future. (Page 65 of the Report)
It is believed that Japan should maintain the imperial succession system in linewith the spirit of the philosophy that the emperor is the symbol of the state. The
system must win the support of the people and conform to the history and culture of
the nation. The Constitution stipulates that imperial succession is hereditary. The
Constitution, however, mentions that the Imperial House Law decides how theemperor’s position is succeeded. The Law states that a boy on the male side of theimperial family will become an emperor.
At a Commission’s discussion, one member raised the figure of a public opinion poll,saying 80 % of the people approve of having a female Emperor and that we shouldtake this fact into consideration. Others said we should not apply pressure on theimperial family to have a boy and that female Emperors did exist in Japan’s history
after all.

(7) Firm Maintenance of Pacifism (Relating to the Preface and Article 9)
The Commission members agreed that we should firmly maintain the significance andideal of pacifism. (From page 66 to 67 of the Report)
The principle of pacifism is presented in the Preface and Article 9 of theConstitution. The Japanese people, with their experiences of the horror of the war,
feel deeply attached to it. However, some doubt if the principle really fits the statusquo of the global community, given that more than half a century has passed since
the enforcement of the Constitution. Others, on the other hand, argue that efforts
should be made to change the status quo to suit the principle. They emphasize theunchanged validity of the principle stipulated in the Constitution. This, we believe,
can be attributed to the fact that opinions vary as to what are the practical means toachieve peace, though people share their hope for peace.
One of the Commission members stated that the accomplishments Japan achieved

12

in the post-war world and the trust it gained from the global community should bethought highly of, and that the nation should continue to be actively involved in
global activities to maintain world peace, emphasizing its unchanged principle ofpacifism. Another member mentioned that we should reconfirm the significance ofthe principle and spirituality of pacifism as the state, and that we should send
stronger messages for peace to the global community.

(8) Preservation of the First Paragraph of Article 9 (Relating to the first paragraphof Article 9)
The Commission members generally agreed that we should preserve the firstparagraph of Article 9, which stipulates the renunciation of war. (From page 71 to
73 of the Report)
The first paragraph of Article 9 declares the nation’s determination to give up wars
by stipulating, “Aspiring sincerely to an international peace based on justice andorder, the Japanese people forever renounce war as a sovereign right of the nationand the threat or use of force as means of settling international disputes.”
The unified view of the Japanese government is that the first paragraph of Article 9
does not deny the right of self-defense, an inherent right for an independent state.
One of the members said at a Commission’s discussion that we should preserve thefirst paragraph of Article 9 because it declares the renunciation of wars of
aggression, a widely accepted idea in international laws in line with the spirit ofantiwar pacts and the Charter of the United Nations.

(9) Right of Individual Self-Defense (Relating to Article 9)
The Commission members agreed that Japan, as an independent state, is entitled to
the right of individual self-defense. (From page 73 to 75 of the Report)
The right of self-defense is usually defined as the right to exercise certain forces for
self-defense against imminent or real unlawful armed attack from outside.

13

It is also said that the individual right of self-defense is a natural right, and that thenation’s right of self-defense, as a collection of the individual ones, is also a naturalright which comes before the provisions of the Constitution.
The Constitution emphasizes the significance of pacifism, which the Japanesepeople appreciate. However, people have questioned if pacifism can deny thenation’s right of self-defense, and how we should perceive and deal with thepresence of the Self-Defense Forces.
When the Self-Defense Forces was founded in 1954, the Hatoyama Cabinet at thetime stated that the first paragraph of Article 9 did not deny a right of self-defense
inherent in an independent state; therefore, it permitted us to use a minimum
military force with which to defend ourselves. The Japanese government has sincemaintained this view as their basic standpoint.
One of the members argued that the Constitution absolutely allows Japan to have aright of self-defense for the national security and to use its forces for self-defense.
Another member maintained the UN Charter stipulates that international laws
permit any sovereign state to have individual and collective rights of self-defense,
and that Japan is no exception, entitled to the right of self-defense as anindependent sovereign state.

(10) Necessity of Having a Minimum Self-Defense Organization (Relating to Article
9)
The Commission members generally agreed that we need a minimum self-defense
organization for self-defense. (From page 79 to 81 of the Report)
It was generally agreed at the commission’s discussions that a minimum
self-defense organization for self-defense is necessary.
When the Self-Defense Forces was founded in 1954, the Hatoyama Cabinet at thetime changed the interpretation of ‘forces’ prohibited in the second paragraph of
Article 9. The Cabinet defined them as “the forces that exceed the minimum

14

necessity for self-defense”(See page 38). They concluded that the Self-Defense
Forces is the minimum forces required for the nation’s self-defense, so they are
constitutional. The Japanese government has since maintained this view as theirbasic standpoint.
One of the Commission members argued that an independent state has a right ofself-defense, and that a self-defense organization is necessary to protect the lives
and properties of the people. A different member maintained that the current
Self-Defense Forces is unconstitutional. Another said that they go beyond theminimum necessity.

(11) Civilian Control (Relating to Article 9)
The Commission members generally agreed that maintaining civilian control over the
self-defense organization is important. (From page 83 to 85 of the Report)
Democratic control over a military organization is essential in maintaining a
democratic state system. The second paragraph of Article 66 of the Constitution
stipulates that the Prime Minister and other Ministers of State must be civilians.
This is based on the reflection that active military officials became ministers andhad huge control over the national politics under the Meiji Constitution. The
principle of civilian control places a military organization under the control ofcivilians.
Recently, some people have argued that the concept of civilian control could go
beyond the conventional one. They say that civilian control should also affect otherareas such as the declaration of war in the parliament, authority on budgets, thecommand authority of the leaders of the administrative body, and the authority of
the court of justice in case of infringement of the people’s freedom by the military.
One of the members mentioned that we should deal with the concept of civilian
control in a broader sense, where the highest military commander-in-chief should
be under the control of the parliament of the democratically elected members, notjust the narrowly defined view that commander-in-chief must be a civilian. Anothermember raised concerns, saying that civilian control by the Diet may lose its

15

substance in the future, given that more and more developed nations are shiftingfrom the parliament/congress-oriented democratic system to a system with moreemphasis on administrative body, which has more specialty and mobility.

(12) Emphasis on the United Nations and Necessity of Its Reforms (Relating to thesecond paragraph of Article 98)
The Commission members generally agreed that Japan’s involvement in the activitiesof the United Nations is important, although the organization needs reforms, such asthat of the Security Council. (From page 90 to 92 of the Report)
The global community sought to establish world peace centered on the United
Nations, after the horror of the First and Second World Wars. The current
Constitution shares in principle the spirit of the Charter of the United Nations that
pledges to save the future generations from the disaster of war.
How Japan should be engaged in the peacekeeping activities sponsored by theUnited Nations is a debatable issue. There are also many different views on the way
the United Nations, especially the Security Council, should operate.
At the commission’s discussions, a member mentioned the continuous importance of
the United Nations in its roles to solve the problems facing the world of the 21st
century, including the difficulty in establishing world peace, the correction of thegap between rich and poor, and the destruction of the natural environment. A
different member argued that Japan must help the United Nations to strengthen its
functions, now that it is easier to do so with some of the conventional obstacles gone,such as the conflict between the East and the West during the Cold War. Anothermember expected Japan to express itself and conduct itself more in the areas ofdevising practical global measures centered on the United Nations andstrengthening the functions of relevant organizations, including the functions of theInternational Criminal Court and the establishment of a UN Force or a UN Police
Force.

16(13) International Contribution (Relating to the Preface)
The Commission members agreed that Japan, as a member of the global community,
must be actively involved with international cooperation through its participation ininternational peacekeeping activities or the utilization of Official Development
Assistance. (From page 94 to 95 of the Report)
Japan must bear its responsibility to establish world peace, and not simply pursue
one-country pacifism. This is illustrated in the Preface of the Constitution that says,“No nation is responsible to itself alone.”At the commission’s discussions, the members agreed that Japan, as a member ofthe global community, must be actively involved with international cooperation
through its participation in international peacekeeping activities or the utilizationof Official Development Assistance. One of the members argued that each Japanesecitizen must understand the importance of international peacekeeping activities
and cooperation, so that Japan, as a nation, can take the initiative and actively
engage in these activities. Another member proposed that Japan should expand its
humanitarian assistance through NGO/NPO, other civilian groups and the
Self-Defense Forces, and non-military assistance through ODA, because making aninternational contribution is a duty for Japan as a member of the global community.

(14) International Cooperation, such as Official Development Assistance (Relating
to the Preface)
The Commission members agreed that we cannot achieve the security and peace of theworld without solving the North-South problem and the gap between rich and poor,
among other chronic economic problems. (From page 97 to 98 of the Report)
The members agreed that we cannot achieve the security and peace of the world
without solving the North-South problem and the gap between rich and poor,
among other chronic economic problems. Both social and economic assistance arenecessary for the troubled nations. Japan shares a part of the responsibility byproviding financial and technological resources through the utilization of ODA forthe betterment of the economies, societies, and welfare of developing countries.

17

At the commission’s discussions, one of the members insisted that Japan should use
ODA more strategically and contribute to the establishment of peace in
conflict-stricken areas in cooperation with the global community, and that thecontributions should include not only financial ones but also those of personnel andintelligence. A different member argued that Japan’s prosperity is based largely ona stable international free trade system, and that Japan has its obligations to share
the burden and cooperate with other nations to solve problems that might affect thesmooth function of the system. That member added that Japan should notterminate its international cooperation programs or reduce its assistance in a hasty
manner, because it would damage Japan’s national interest in the long run.

(15) Respect for Fundamental Human Rights (Relating to Articles 11 and 97)
The Commission members agreed on the importance of both the respect for
fundamental human rights (one of the three major principles of the Constitution), andtheir maintenance. (From page 103 to 104 of the Report)
Under the Meiji Constitution legislation did not pay enough respect to fundamental
human rights, and had the authority to limit them.
Provisions about human rights in the current Constitution were instituted based on
the lessons and reflections from the Meiji Constitution. They were, and still are,considered solid and rich in their content, compared with those of other countries’
constitutions.
At the commission’s discussions, one of the members mentioned that we should
basically keep Articles 10 through 40 that are on fundamental human rights andthe rights and duties of the people. A different member said that the respect for
fundamental human rights serves as a fundamental core for the Constitution ofJapan and should be retained. Another member maintained that the respect foreach individual is fundamentals for the Constitution and that it makes theConstitution valuable.

18(16) Respect for International Human Rights Laws (Relating to Articles 11, 97 andthe second paragraph of Article 98)
The Commission members agreed that we should respect international human rights
laws. (From page 104 to 106 of the Report)
After World WarⅡ, respect for human rights became widespread. Many countries
stipulated fundamental human rights in their constitutions and eventually wanted
a stipulation of the rights in international laws. These voices resulted in theformulation of the 1948 Universal Declaration of Human Rights. The declaration
was made around the same time as Japan’s Constitution. They did not have huge
differences in their provisions concerning human rights. However, discussions haveprogressed globally on human rights centered on the United Nations. There havebeen many human rights-related treaties and pacts signed, such as theInternational Covenants on Human Rights. It is pointed out that there is a gap
arising between these treaties and the Constitution of Japan in terms of the level ofthe guarantee of human rights.
The Commission members discussed the human rights issue of refugees and asylum
seekers in Japan. One of the members said that no discussion is made about thelegal effectiveness of human rights-related treaties in Japan’s trial cases, and thatthe rule of law in this country is conducted away from these international laws. As
to how Japan should deal with the international guarantee of human rights, one
member argued that Japan should play larger and more active roles in the global
community, including in the area of correcting a disparity in the level of respect forhuman rights between developed countries and developing ones. Another member
pointed out that, domestically, Japan should establish a system that would respect
and practice the policy of the international guarantee of human rights.

(17) Respect for the Human Rights of Women, Children, the Physically Challenged,
and Minorities (Relating to Article 14)
The Commission members agreed that we must respect the human rights of women,children, the physically challenged, and minorities. (From page 113 to 114 of theReport)19

The Meiji Constitution did not have provisions of the general principle of equality.
The current Constitution stipulates the principle in Article 14. This area, among all
the rights the Constitution provides, is said to have most developed the concept andapplication of the guarantee of human rights. Equality under the law, however, has
not been completely achieved yet in Japan. In particular, the question of how we canprovide equality to minorities and foreigners residing in Japan has garneredattentions.
At the commission’s discussions, one of the members talked about the necessity ofsetting up new laws concerning the reproductive rights and reproductive health for
women to make their own decisions about sex and reproduction. Another member
argued that we need the legislative stipulation of the rights that recognize children
as independent human beings. Another member raised an issue of how to help thephysically challenged to participate in society, saying that the legislative bodyshould make laws to make it possible. A different member also proposed making
new

laws

that

will

guarantee

fundamental

humanrightsandachievecomprehensive equality in society, so we can eradicate discriminations against the
Buraku people, the Ainu people, the Korean residents of Japan, and foreign
workers.

(18) Respect for the Human Rights of Foreigners (Relating to Article 14)
The Commission members generally agreed that we must basically guarantee thehuman rights of foreigners. (From page 114 to 115 of the Report)
The Constitution is, in its nature, aimed at the people of Japan. It is believed toshow the criteria to exercise the power of the state on its people. Therefore, it is adelicate issue if the constitutional rights should be applied to the human rights offoreigners, and if so, how far they should be applied.
At the commission’s discussions, the members held the common ground that thecurrent world-wide globalization trends help the human rights issues of foreigners
in Japan to garner attention, not to mention the conventional issue of the North andSouth Korean residents in this country. One of the members urged that we needspecific provisions on the guarantee of the human rights of foreigners, and that20

these provisions should meet the international standard. Another member said that
we need to tackle this issue in order to present our clear vision of creating a
constructive network of the Asian civilian societies. A different member argued thatwith new trade agreements, such as FTA (Free Trade Agreement), making it easierfor people to travel among countries, we should set up new laws to deregulate theimport of foreign workers and to help them co-exist with the Japanese, and that theJapanese people also have to change their conventional mindset about these
foreigners.

(19) Importance of Social Rights (Relating to Articles 25, 26, 27, and 28)
The Commission members agreed that social security, education, and labor are, andwill be, important, and that the state must continue to make its utmost effort toguarantee them. (From page 124 to 126 of the Report)
Social rights differ from the classical freedom rights. They are the rights that allow
you to pursue individual rights guaranteed by the state aggressively. The social
rights the Constitution stipulates are the right to life (Article 25), the right toeducation (Article 26), the right to work (Article 27), and the basic labor rights(Article 28). It was monumental that the Constitution adopted the provisions about
the social rights when it was established. Stipulating the social rights is one thingthat makes the current Constitution special.
At the commission’s discussions, the members agreed that social security, education,and labor are, and will be, important, and that the state must continue to make its
utmost effort to guarantee them. They discussed whether or not these social rights
stipulated in the Constitution are applied in the daily lives of the people. Morespecifically, they focused on the significance and legal characteristics of theprovisions of the social rights, the measures to realize them, the relationshipbetween the right to life and social security, the right to work, and the actual
working conditions of the people.

(20) Guarantee of New Human Rights (Relating to Articles 13 and 25)

21

The Commission members agreed that the Constitution should, in principle,
guarantee new human rights. (From page 132 to 134 of the Report)
The current Constitution stipulates human rights in detail. These stipulations are
the list of the historically important rights and freedoms. However, they do notcover all the human rights that can ever exist.
The world has changed dramatically since the time the current Constitution was
enforced. We have to consider new rights that the Constitution has no provisions
about, such as the right to know, the privacy rights, and environmental rights.
These are called new human rights. They do not have clear standards that
distinguish them from other human rights. We have to discuss how we should
define them and if we can recognize them as human rights guaranteed by theConstitution.
At the commission’s discussions, one of the members proposed incorporating a newhuman rights catalogue into the provisions of the Constitution to make clear its
guarantee of human rights. Another member mentioned that the human rights
provisions of the current Constitution, such as Article 13, provide the foundation toprotect and guarantee new human rights because they have come about as a resultof the people’s long-term attempt to promote and realize them.

(21) Separation of Powers (Relating to Articles 41, 65, 66, 69, 76, and 81)
The Commission members agreed that the importance and necessity of the separationof powers will never change. (Page 144 of the Report)
The discussions were carried out on the common understanding that the legislative,administrative, and judicial bodies respectively have to improve their accountability
and reciprocal supervision.
At the commission’s discussions, one of the members defined the significance of theseparation of the three branches as blocking the abuse of power by the checking andbalancing of the three branches, to achieve the goals of constitutionalism and therule of law.

22

Another member said that the separation of the three branches is essential to run
the governing system of Japan smoothly and effectively. A different member argued
that we should maintain the separation to protect our freedom. For these reasons,the members agreed that the importance and necessity of the separation of Powers
would not change.

(22) How the Bicameral System and the House of Councillors Should Be(Relating to Article 42)
The common understandings were reached on the following points at the commission.
1) Maintenance of the bicameral system
2) Necessity of the reform of the House of Councillors and the importance of designinga election system to clearly differentiate it from the House of Representatives
3) Maintenance of the direct election system of the members of the House ofCouncillors
4) Playing separate and unique roles from the House of Representatives, such as
long-term and fundamental commitments to policy issues, the examination of the final
account of the state, the strengthening of supervisions of the administration, and thepolicy evaluation.
5) Legitimacy of the stipulation of the Constitution that places the House ofRepresentatives over the House of Councillors and the necessity to be careful about therelaxation of the requirements for the second vote of the House of Representatives incase of a disagreement between the two Houses.
The common understandings on the above points, which were first presented in thesubcommittee report, were reconfirmed at the commission meetings. (From page 154
to 165 of the Report)“How the bicameral system and the House of Councillors should be” is an issue thatthe House of Councillors is responsible for handling. On February 18th, 2004, theCommission set up the “Subcommittee on the Bicameral System and the House ofCouncillors,” which played a central role in the research. The subcommittee
compiled their research work into a report (of which the Japanese Communist Party
disapproved) on March 9th, 2005 and submitted it to the Commission.

23

The Commission confirmed the above-mentioned common understandings in thereport and concluded that we should maintain the bicameral system, mainly toreflect various will of the people. The Commission also agreed that we should
maintain the direct election system, in which the members of the two Houses are
directly chosen by the people as their representatives. It was also confirmed that weshould be careful of easing the requirements for conducting the second vote of theHouse of Representatives when there is a disagreement between the two Houses intheir decisions.
The Commission also agreed that the House of Councillors should make the most of
its characteristics that the House of Representatives does not share. That is, theHouse of Councillors, with its longer term for each member and the absence of its
dissolution, should design an election system that fits these traits, and make along-term fundamental commitment to policy issues.

(23) Parliamentary Cabinet System (Relating to Articles 66 and 69)
The Commission members generally agreed that we should maintain ourparliamentary cabinet system based on the two Houses. (From page 166 to 167 of
the Report)
The basic principle of the parliamentary cabinet system is that a majority party in
the Diet forms a Cabinet to be the main body of the administrative authority. Dulyelected representatives choose the Prime Minister, who gains the control of theadministrative authority with the cabinet ministers under him. This way, there is abottom-up consistency of democracy in politics. The basic principles of how thenation should be governed are concentrated around the Prime Minister.
The Commission members agreed that we should maintain our parliamentarycabinet system based on the two Houses, and that, more specifically, we should
retain the power of appointing the Prime Minister by the House of Councillors andthe qualification for the members of the House of Councillors to become Cabinet
members. Among the reasons for these arguments was, according to one of themembers, that it is important for the two Houses to check and balance each other’sfunctions and collaborate with each other to reflect varied will of the people.

24(24) Prohibition of the Establishment of an Extraordinary Tribunal (Relating to
the second paragraph of Article 76)
The Commission members generally agreed that we should maintain the policy ofprohibiting the establishment of an extraordinary tribunal. (From page 176 to 178
of the Report)
An extraordinary tribunal is a court of justice that can only deal with the cases
involving individuals with special status or certain other kinds of cases. Moregenerally speaking, it refers to a court that is not affiliated with the conventional
courts.
As for the range of the judicial power, the current Constitution stipulates that itcovers all the trial cases including those of administrative suits, and that it belongs
to the conventional courts. This basic concept is clear in the second paragraph of
Article 76 of the Constitution. It prohibits the establishment of an extraordinary
tribunal where the administrative body holds a trial of the last instance. This idea
follows the examples of the United States of America and Great Britain.
At a Commission’s discussion, a member pointed out that the establishment of an
extraordinary tribunal was prohibited because there were human rights
infringements in some of the military tribunals.

(25) Facilitation of the Legal Process (Relating to Article 32)
The Commission members agreed that we should facilitate the legal process andenhance trial efficiency. (From page 182 to 183 of the Report)
The justice system reform has been promoted as the last of a series of reforms
including those of politics and administration. The reform mainly involves theintroduction of the jury system to democratize the legal process with theparticipation of the general public, and the improvement of the system to nurture
the legal profession with the introduction of post-graduate law schools.
The Commission agreed that it is necessary to speed up the legal process and25enhance the efficiency of the trials.
As for the means to achieve these goals, one of the Commission members proposedthat program provisions should be set up that emphasize prompt trials and declarethat all trials have to proceed swiftly. Another member said that we need toestablish a specialty court that handles specialty cases such as those involving theadministrative body or intellectual property rights. That member added that the
specialty court would not serve as a court of the last incident, and that it should beplaced under the Supreme Court and be affiliated with the conventional courts.

(26) Necessity of Providing Financial Assistance to Private Educational Institutions(Relating to Article 89)
The Commission members agreed that it is necessary to maintain the financial
assistance to private educational institutions. (From page 192 to 194 of theReport)
The purpose of the provision on public money in the Constitution (Article 89) is toprevent the waste of public money and to secure the independence of privateorganizations.
Article 89 prohibits spending public money for the educational enterprises that are
not under the control of public authority. The constitutionality of this issue has
been debated since the enforcement of the current Constitution. In reality, theallocation of the public money to private educational institutions has been
considered constitutional, with the help of the enactment of relevant laws. The
government standpoint and the judicial precedents support its constitutionality.
The Commission members agreed on the necessity of providing financial assistanceto private educational institutions. One of the members said that private
educational institutions share the same responsibility for pubic education as publicschools, and that the idea of Article 89 is not to prevent financial assistance to these
institutions. That member also pointed out that financial assistance to them is also
appropriate from the standpoint of Article 26.

26(27) Examination of the Final Account of the State (Relating to Article 90)
The Commission members agreed that one of the main functions of the House ofCouncillors is to examine the final account of the state. (From page 196 to 197 of
the Report)
At the “Subcommittee on the Bicameral System and the House of Councillors,” themembers discussed how the examination of the final account of the state by theHouse of Councillors should proceed and what significance that function shouldhave in the Constitution.
Based on the results of the discussions at the subcommittee, the Commission
confirmed that the House of Councillors should emphasize its role to examine thefinal account of the state. One of the members proposed that the account should befirst settled in the House of Councillors and that it should be approved by the Diet,
not merely the matter of reporting it to the Diet. That member also said that theConstitution should stipulate that the settlement of the final account has a binding
power over the next year’s budget.

(28) Relationship Between the Central Government and the Local Governments(Relating to Articles 92 and 94)
The Commission members generally agreed that amid the ongoing decentralization,
the central government and the local governments should build an equal relationshipwith each other, rather than the conventional relationship of the central one governing
the local ones. (From page 201 to 202 of the Report)
It is believed that local autonomy is a basis for democracy, and is a system throughwhich local residents can learn what democracy is all about.
For a long time, the central government controlled and governed local governments.
Recently, amid drastic changes in the international and domestic environments,
decentralization has been promoted to deal with these changes that the traditional
centralized administrative system cannot handle appropriately. With this as a

27background, the Commission discussed how local autonomy should operate in theyears to come.
At the commission’s discussions, the members agreed that the relationship between
the central government and local governments should be equal, not a case of thecentral one controlling and governing the local ones. More specifically, one of themembers argued that we might need to amend the Constitution in the future toreflect the way it will be based on the principle of equality between the central
government and the local ones. Another member proposed that the Constitution set
the standard as to the division of responsibilities between the central government
and the local ones, and as to who will coordinate the fiscal disparities between themand how. A different member argued that it is the Local Autonomy Law itself that
limits the autonomy and self-responsibility which local governments are supposed
to have, because it contains too many detailed regulations.

(29) Local Finance (Relating to Article 94)
The Commission members agreed that the real autonomy of local governments basedon the equal relationship with the central one requires them to have sound financial
foundations. (From page 202 to 204 of the Report)
The Constitution does not include provisions concerning local finance, while theconstitutions of major nations do have detailed stipulations about it, such as how tosecure independent revenue resources and how to coordinate finances. The
members agreed that healthy financial foundations are essential for the local
governments to be fully independent based on the equal relationship with thecentral government.
Based on this common knowledge, the members discussed tax autonomy, financeautonomy, and the nation’s duties to coordinate finance, among other issues. One of
the members argued that the Constitution should guarantee tax and financeautonomy for the local governments so that they can procure funds they need basedon their own responsibility and judgment. That member also mentioned that the tax
autonomy should include the decision-making power for tax items and rates.

28(30) Promoting the Autonomy of Local Residents (Relating to Article 93)
The Commission members agreed that local autonomy should be carried out based on
the will of the local residents. (From page 205 to 209 of the Report)
The members discussed how to promote the autonomy of citizens as guaranteed by
the Constitution. The autonomy of the citizens refers to the principle that local
politics and administration should be carried out based on the will of the local
residents.
At the commission’s discussions, one of the members said that the national politics
are based on the representative system, while local politics have participatory
democracy as a main pillar that must be guaranteed. For this reason, theCommission concluded that local autonomy should be carried out based on the willof the local residents. Another member proposed that local governments shouldmake their charters, which will stipulate the number of the members of theirassemblies, and that they make their own governments through referendums. A
different member suggested a “city manager system,” in which independent experts
will execute administration of a local government. That member proposed that themethod to choose the tops of local governments should not be limited to directelections if we have a do-shu system in the near future. Another member argued
that referendums based on local ordinance will be conducted according to relevantlaws and that it has a major political implication.

(31) Strengthening the Functions of Lower-Tier Governments (Relating to Articles
92 and 94)
The Commission members agreed that it is important to strengthen the functions oflower-tier governments that will serve as a basis for decentralization. (From page
207 to 208 of the Report)
At a Commission’s discussion, one of the members said that it is desirable to makeclear the basic idea that the strengthening of the functions of lower-tiergovernments should come before other issues relating to how local governments

29should operate.
Based on this common opinion, a member mentioned that it is necessary to transfer
financial resources and authority to neighboring lower-tier governments in order tostrengthen the independence and decision-making power of local areas. Thatmember said that it would help local areas regain their individualities.

(32) Decentralization of Power from the Central Government to the Local
Governments (Relating to Articles 92 and 94)
The Commission members agreed that decentralization of power should be further
promoted. (From page 210 to 211 of the Report)
At a Commission’s discussion, one of the members said that from a long-term
experience of engaging in the issue of local autonomy the strengthening of thefunctions of lower-tier governments and the promotion of decentralization of power
would no doubt lead to the betterment of the welfare of local residents. The
importance of the promotion of decentralization was confirmed by the members.
With this commonly agreed upon, the members discussed how the Constitution
should deal with the decentralization of power. One of them argued that the Preface
needs a stipulation stating time has come for a change from centralization to
decentralization. Another member pointed out that the Constitution needs clear
stipulations on the relationships between the central government and the local
governments, among the local governments, and among the local administrative
chiefs and the local assemblies.

(33) National Referendum System (Relating to Article 96)
The Commission members agreed that they should maintain the national referendum
system required to amend the Constitution due to its importance. (From page 216 to
217 of the Report)
Article 96 of the Constitution stipulates that the amendments to the Constitution

30

require “a concurring vote of two-thirds or more of all the members of each House”
and “the affirmative vote of a majority of all votes cast thereon, at a specialreferendum or at such election as the Diet shall specify.” Laws are legislated inprinciple only by the approval of the Diet, while the amendments to theConstitution require a national referendum, a procedure of participatory democracy.
This means that the people can make a final decision on the amendments to theConstitution as sovereigns.
At the commission’s discussions, one of the members said that it is reasonable forthe people to have the authority to amend the Constitution, and that allamendments to the Constitution have to go through a national referendum. Anothermember warned that the Constitution is imposed on the State by the people;
therefore, amending the amendment process by removing a referendum will cause alegal problem.

31

2. Predominant Views
The Liberal Democratic Party, the Democratic Party of Japan, and New Komeito
generally agreed on the following views.
(1) Stipulation of New Human Rights in the Constitution (Relating to Chapter 3)
Most of the Commission members from the three parties agreed that the Constitution
needs new stipulations concerning new human rights. (From page 133 to 134 of
the Report)
It was confirmed at the commission’s discussions that the Constitution should
protect, in principle, new human rights (See page 21). However, there wereconflicting views about whether we need new stipulations on new human rights.
Some argued that, instead of making new stipulations, the Constitution can deal
with the new rights by applying Article 13 (“the right to the pursuit of happiness”),
and Article 25 (“the right to maintain the minimum standards of wholesome andcultured living”) among other articles.
The Commission saw most of the members support the idea of making new
stipulations in the Constitution. As for the reasons, a member maintained that weshould meet the changes in the social environment. Another member pointed outthat we should clarify the guarantee of human rights. A different member argued
that we should consider human rights protections that cover broader ranges, areeasy to recognize, and are up to the global standard.

(2) Privacy Rights (Relating to Chapter 3)
Most of the Commission members from the three parties agreed that the Constitution
needs new stipulations concerning privacy rights. (From page 136 to 137 of theReport)Privacy rights derive from the freedom of private life. It is also believed to be theright to control one’s own information.

32

At the commission’s discussions, a member said that we should add stipulations
concerning the right for the people to protect their private information. Anothermember urged that the Constitution needs new stipulations that recognize privacy
rights as the right to control one’s own personal information. It was also pointed outthat maintaining privacy is a basis for living a peaceful life and the Constitution
needs to stipulate privacy rights as a new human rights provision.

(3) Environmental Rights (Relating to Chapter 3)
Most of the Commission members from the three parties agreed that the Constitution
needs new stipulations concerning environmental rights. (From page 137 to 138 of
the Report)
Crash industrialization and urbanization have significantly damaged theenvironment. People suffer from air and water pollution, noise, and unbearable
shaking of their houses. This has prompted the idea of environmental rights topreserve the environment and secure the comfortable environment for the people tolive in. Nowadays, people are also concerned about the deterioration of the naturalenvironment on the global scale.
The Commission discussed environmental rights and the duties to protect theenvironment that guarantee a quality environment. This quality environment is
considered essential for the people to maintain their healthy, comfortable lives. Oneof the members said that the Constitution should stipulate environmental rights as
the right to enjoy a healthy, quality environment. Another member said thatenvironmental protection is one of the most important areas of international
contribution for Japan, and that with a new stipulation, we should make clear thatJapan is a nation which values the environment, with its history and tradition ofcoexisting with the natural environment.
As for the responsibilities of the people and the nation to the future generations andthe environment itself, and the aspect of a duty of the people and the nation thatthey have to protect the environment, one of the members said that the arguments
on environmental rights should include the issue of the responsibilities to the future

33

generations and the environment itself. A different member mentioned theseriousness of the current environmental problems and the negative impacts causedby the actions of private companies and each individual, which have caused more ofthese problems than the state has. Another member suggested stipulating not only
natural rights but also the duties that each individual has to fulfill to prevent thedestruction of the environment. Most of the Commission members agreed that theConstitution needs new stipulations concerning environmental rights.

(4) Qualifications to be the Prime Minister and the Ministers of State (Relating to
Articles 66, 67, and 68)
Most of the Commission members from the three parties agreed that we should
maintain the qualifications to be the Prime Minister and the Ministers of State as theyare. (From page 167 to 168 of the Report)
The beginning of the first paragraph of Article 67 stipulates, “The Prime Ministershall be designated from among the members of the Diet by a resolution of theDiet.” This means that the Prime Minister must be a Diet member, that is, amember of each House. The first paragraph of Article 68 states, “The Prime
Minister shall appoint the Ministers of State. However, a majority of their number
must be chosen from among the members of the Diet.” These provisions require amajority of the Ministers of State to be members of the Diet.
Some people argue that the qualifications to be the Prime Minister and theMinisters of State should be limited to the members of the House of Representatives,
since a main function of the House of Councillors is monitoring the administration’s
activities.
However, most of the Commission members supported the current qualifications.
One of the members said that we do not have to narrow the range of thequalifications because there are qualified members in each House. Another member
argued that we should keep allowing members of the House of Councillors to be
Ministers as long as we maintain the parliamentary cabinet system, which is basedon the two Houses.

34

There were also the members who insisted on amending the current policies. One ofthem doubted that those who are elected Ministers could execute their duties while
fulfilling their responsibilities as members of the House of Councillors, because
their functions of monitoring the finance of the state and examining its final
account also need to be strengthened. That member mentioned that thischaracteristic of the House of Councillors has to be considered when we talk about
the qualification for the members of the House of Councillors to be the Ministers ofState, as well as the power of designating the Prime Minister.

(5) One Year Budget Principle (Relating to Article 86)
Most of the Commission members from the three parties supported the idea ofmultiple-year budget. (From page 195 to 196 of the Report)
Though some members argued that we should firmly maintain the one-year budget
principle, most of the members supported the idea of multiple-year budget. A
member against the one-year budget principle said that this principle creates thewrong idea that all the budget money has to be used up by the end of a fiscal year,
and that it goes against the direction of achieving the goal of restoring fiscal
balance.
A member proposed practical approaches to preparing multiple-year budget. Thatmember said that we do not have to completely abandon the one-year budget
principle from the standpoint of financial democracy. That member proposed
operating the budget system flexibly, by applying the legally stipulated system forcontinuing expenditures to the expenses that go over one year.
Another member for the one-year budget principle argued that it can secure acertain level of financial discipline, though that member admitted it has some
negative effects.

(6) The Future of the Research Commission on the Constitution
Most of the Commission members from the three parties asked for continuing

35

discussions of the procedure to amend the Constitution. Japanese Communist Partyand Social Democratic Party strongly opposed to this view. (From page 220 to 221
of the Report)
The amendment procedure of the Constitution stipulated in Article 96 only suggests
its framework. The actual amendment would require new laws that stipulate theprocedure, including how to conduct a national referendum. Any law to that effecthas not been established yet.
The discussions at the commission focused on this issue along with the future roles
and necessity of the Commission after the submission of the report.
Most of the members supported the idea of maintaining the Commission for further
discussions. One of them argued that immediate facilitation would be needed toprepare details on the amendment procedure and a national referendum. Thatmember also said that they need to keep this Commission to discuss these issues ortake necessary measures to utilize this Commission or an alternative organizationof the House to conduct the research, drafting, deliberations, and decisions on theseissues. Another member emphasized that the issue of the possible enactment of alaw on the constitutional amendment procedure has to be on the research agendasof the Commission, given its huge significance.
There were also members opposed to the maintenance of this Commission. One ofthem argued that they will not allow the Commission to be a stepping-stone for theamendment of the Constitution, especially, that of Article 9 and that theCommission should be dissolved once it completed its role of submitting the reportto the President of the House of Councillors. Another member said that after its
dissolution new venues for discussions should be created for the people to discuss
how to realize the principles of the current Constitution. That member also asked
for the participation of Diet members in these discussions. Most of the Commission
members, however, supported continued discussions at the commission on theprocedures of the constitutional amendment.

36

3. Major Issues with Separate Views
The followings are the issues that even the Liberal Democratic Party, theDemocratic Party of Japan and New Komeito did not reach agreements on.
(1) Philosophy and Contents of the Preface (Relating to the Preface)
The Commission members discussed philosophy and contents that need to be added in
the Preface. Besides the previously mentioned three principles, the members raised
Japan’s history, tradition, and culture, among other elements. No agreement wasreached on any of them. (From page 50 to 55 of the Report)
Many constitutions of other countries have prefaces as the Japanese Constitution
does. Their contents vary. Some stipulate how their constitutions came about.
Others state the objectives, goals, principles, or ideals of their constitutions.
The preface of Japan’s Constitution declares its basic principles and ideals. It
comprises a part of the whole Constitution and has the force of law. These arecharacteristics of the Constitution.
The members generally agreed on the positive roles that the Preface has played.
They said that it explains how Japan should function as a nation and how thenation and its people should be related to each other. They praised that it does so ina clear and simple language to the nation and to the rest of the world.
As for the philosophy and contents that should be included in the Preface, thefollowing were proposed, besides the aforementioned three principles. They
proposed “Japan’s history, tradition, and culture,” “the national identity,” “thenation’s goals of becoming not only an economy-oriented country but also educationand culture-oriented country,” “international contribution,” “other national goals of
realizing world peace and nuclear disarmament and of becoming a nation based on
its intelligence and creativity,” among other goals. Opinions varied on which ofthese should be included in the Preface.

37(2) Head of State (Relating to Article 1)
The Commission members were divided on whether the Emperor should be interpreted
as “Head of State,” and whether a stipulation to that effect should be included in theConstitution. (From page 61 to 62 of the Report)
The Cabinet Legislation Bureau stated an opinion at a Commission meeting on
June 6th 2001 as follows. They said that the current Constitution does not have any
particular stipulations on “Head of State,” but that the government basicallysupports the idea of calling the Emperor the Head of State based on a view thatanyone at the top of a nation can be called the Head of State, even if he or she does
not have authority to rule the nation. One of the members, however, said they feel
uncomfortable about calling the Emperor the Head of State, though that member
supported respecting him as a symbol of Japan’s culture and tradition. Anothermember showed a clear opposition to the idea of calling him the Head of State.

(3) Pros and Cons of the Necessity of Amending the Second Paragraph of Article 9(Relating to the second paragraph of Article 9)
The Commission members were divided on the necessity of amending the second
paragraph of Article 9, which denies the maintenance of forces and the right ofbelligerency. (From page 71 to 73 of the Report)
The second paragraph of Article 9 states, “In order to accomplish the aim of thepreceding paragraph, land, sea, and air forces, as well as other war potential, will
never be maintained. The right of belligerency of the state will not be recognized.”
How to interpret “war potential” and “the right of belligerency” has stirred a lot ofcontroversy.
When the Constitution was enacted, Prime Minister Yoshida mentioned his
interpretation at a Diet session. He said that even though Article 9 did not deny theright of self-defense directly, since the second paragraph of Article 9 denied themaintenance of all forces and the right of belligerency, the state had abandoned theright of engaging in war for self-protection, and also the right of belligerency. It was
believed that his view had its foundation on the definite abandonment of forces.

38

However, in 1952, when National Safety Force, the predecessor of Self-Defense
Forces, was established, Prime Minister Yoshida changed his view slightly. He
expressed that the forces prohibited by the second paragraph of Article 9, whether it
was for aggression or self-defense, were meant to be those equipped with weaponsthat could carry out modern wars.
When the Self-Defense Forces was founded in 1954, the Hatoyama Cabinet at thetime stated that the first paragraph of Article 9 did not deny a right of self-defense
inherent in an independent state; therefore, it allowed us a minimum capacity offorces with which to defend ourselves. The Cabinet’s view changed the meaning of“war potentials” in the second paragraph of Article 9 from those that could carry out
modern wars to those beyond the minimum necessity for self-defense. The Japanese
government has since maintained this view as their basic standpoint.
At the commission’s discussions, the members expressed varied views on thenecessity of amending the second paragraph of Article 9. One of the members for theamendment pointed out that there are inconsistencies between the provisions andwhat really goes on in the world, and that we need to amend the article when it isconsidered more appropriate to go with the reality. Another member, who also
supported the amendment to the second paragraph, argued for the Constitutional
stipulation of the capacity to maintain the Self-Defense Forces and additional
military forces for international cooperation.
Among those for the preservation of the second paragraph of Article 9, one member
said that the Constitution has had its principles deeply rooted in the mindset of thepeople since its enforcement more than half a century ago, and that Article 9 has a
special significance as a brake that can work against runaway militarism.
Another member proposed adding new provisions to the current Constitution whennecessary. That member claimed that on the premise of preserving the firstparagraph of Article 9, which renounces war, and its second paragraph that denies
the possession of war potentials, we should stipulate the Self-Defense Forces’ status
and add a new provision that can provide rationales for Japan’s international
contributions.

39(4) Pros and Cons of Permitting the Right of Collective Self-Defense (Relating to
Article 9)
The Commission members were divided into three groups on this issue, those who fully
approve of the right of collective self-defense, those who are against, and those who
approve under specified conditions. Even those who fully approve were divided onwhether the right should be stipulated in the Constitution or should be guaranteed by
the interpretation of the relevant clauses. (From page 76 to 79 of the Report)
According to international law, a state has the right to use force to stop armed
attack on a foreign country with which it has close relations, even when the state
itself is not under direct attack.
The interpretation by the Japanese government of this right is as follows. It definesthat Japan, as a sovereign state, has the right of collective self-defense under
existing international law, but that it is unconstitutional to exercise this right,
because the exercise of the right of self-defense as permissible under Article 9 isauthorized only when the act of self-defense is within the limit of the minimum
necessary level for the defense of the nation. The exercise of the right of collective
self-defense exceeds that limit and is constitutionally not permissible.
Discussions at the commission focused on whether this government view is valid
and whether the right of collective self-defense should be stipulated in theConstitution. The members were divided into three groups, those who fully approve,those who are against, and those who approve under specified conditions.
One of the members in full approved said that the UN Charter stipulates thatinternational law allows any sovereign state to have individual and collective rightsof self-defense, and that Japan is no exception, and is entitled to the right.
One of the members who deny the right claimed that what could happen on
Japanese territory is covered as the individual right of self-defense. Anothermember said that it is Japan’s true mission to help establish the measures toprovide collective security under the framework of the United Nations. Thatmember argued that exercising the right of collective self-defense goes against thismission.

40

One of the members who approve of the right under specified conditions said that
we should exercise the right of collective self-defense if applied to theimplementation of a unanimous decision made at the United Nations, though its
exercise requires discretion as long as it means engaging in a war along with othernations in foreign countries. That member also said that engaging in a war as partof a UN Force would be extremely unlikely, because there is almost no possibility
that such a Force would be formed in the future.
There were also differences in opinion among those in favor of the exercise of theright. Some supported the idea of stipulating it in the Constitution. The others
claimed that an interpretation of the Constitution would be enough.
One of the members who wanted a stipulation in the Constitution argued that the
government view, which is that we have the right of collective self-defense but its
exercise is unconstitutional, can never win international understanding and needs acomplete amendment. That member added that it is more necessary to amend theConstitution, whose ambiguities invite varied interpretations.
One of the members who opposed the stipulation said that stipulating Japan’s
responsibilities for international contribution in the Preface would be enough. Thatmember raised the concern that the United States might take advantage of it if
Japan stipulates it because the Japan-US Security Treaty does not clearly state
what Japan’s role should be in terms of collective self-defense.

(5) Stipulation of the Self-Defense Forces in the Constitution (Relating to Article 9)
The Commission members were divided on whether the Self-Defense Forces should be
stipulated in the Constitution, and if so, how. (From page 79 to 82 of the Report)
The Commission members generally agreed that we need a minimum organization
for self-defense (See page 13).
The Constitution does not have references to the current Self-Defense Forces andthe force necessary for self-defense. Opinions varied as to whether we should
stipulate these issues in the Constitution.

41

One of the members for the stipulation of the Self-Defense Forces said that asovereign nation is entitled to the right of self-defense, and that a military force is
indispensable to protect the lives and properties of its people. That member also
argued that there is a national consensus among Japanese people that the
Self-Defense Forces is constitutional. Another member said public opinion polls
show that those for the amendment to the Constitution want the clarification of theposition of the Self-Defense Forces in the Constitution most, among other reasonsfor the amendment. That member also said that other nations have their militaryforces for self-defense clearly mentioned in their constitutions, and that we should
follow suit.
One of the members against stipulating the Self-Defense Forces said the Force is no
doubt identical to the “force” specified in Article 9 and that the Self-Defense Forces
should be modified so it does not violate the Constitution, which has a longer history
than the Self-Defense Forces. That member proposed discussing how we can makeit happen.
As to how the Self-Defense Forces should be stipulated in the Constitution if it is in
the future, one of the members maintained that the Constitution needs the
stipulation of clear rules that prevent the Self-Defense Forces from turning into a“dangerous weapon.”(6) Stipulation of International Contributions in the Constitution (Relating to thePreface and Article 9)
The Commission members were divided on whether the Constitution needs
stipulations of International Contributions. Some members supported the idea ofactively promoting Japan’s military participations in peacekeeping operations or
multi-national forces approved by the United Nations. Others maintained that Japan
should only make international contributions in non-military fields. (From page 94
to 95 of the Report)
The Commission had a consensus that Japan should be actively involved ininternational cooperation activities such as international peacekeeping activities
and ODA, official development assistance (See page 16). The members, however,42

expressed separate views on the stipulation of international contributions in theConstitution. One of the members emphasized that each Japanese person needs tounderstand and appreciate the significance of these contributions so that Japan canmake a more voluntary and active commitment to them. That member argued the
body of the Constitution needs the stipulation of the principles of international
cooperation and Japan’s willingness to participate in the activities of internationalorganizations.
There were also separate opinions on whether Japan should make militarycontributions. Some supported the idea of Japan being actively engaged in military
operations, such as peacekeeping operations and also multinational forces approvedby the United Nations. Others maintained that Japan’s international contributions
should be limited to non-military field.
Those for Japan’s military contributions asked for a more active involvement by
Japan in multinational forces approved by the United Nations and peacekeeping
operations that involve the use of force. One of them said that the drastic changes of
the world politics in the post-Cold War period have caused a series of conflicts andinstabilities, which necessitates these operations. That member argued these are
valuable activities and that it is worthwhile for Japan to participate in them
actively. That member defined these activities as an example of ideal venues forJapan to make its international contributions.
The others maintained that Japan should make international contributions only in
non-military fields. One of those members specified the areas for non-militarycontributions as nuclear disarmament, the peaceful settlement of the North-South
problem, and the prevention of environmental destruction, among othernon-military issues. That member stressed the importance of Article 9, saying thatit can serve as a basis for Japan to take a unique leadership role in tackling theseissues. That member strongly denied a view that Article 9 stands in the way ofJapan making international contributions.
(7) Stipulation on Emergency Situations in the Constitution (Relating to Article 9
and Chapter 5)
The Constitution of Japan does not have provisions on how to prepare for and deal

43with emergency situations. The Commission members had separate opinions onwhether the Constitution should stipulate them. (From page 99 to 100 of theReport)
The current Constitution does not stipulate how to prepare for and handle
emergency situations. These include natural disasters and national security
emergencies, such as warfare, terrorism, and massive riots.
There is a view that, without the stipulation of how to deal with emergency
situations in the constitution of a nation, its spirit might be infringed upon whenthese situations occur. Germany takes this stance. There is also a view that thecurrent Constitution has a connotation that such provisions are unnecessary. Thisview has its rationale on the idea that the Constitution was enacted based on thenation’s historical soul-searching on the applications of such provisions in the Meiji
Constitution.
There is also an opinion that we need a new basic law dealing with emergencies,
and we should incorporate provisions similar to those of the legislation to protect
civilians in it, without amending the Constitution. This view is based on the concernthat the stipulation of how to deal with emergencies in the Constitution may
conflict with the spirit of the respect for fundamental human rights, which isalready stated in the Constitution.
The members discussed whether the Constitution should stipulate how to deal withemergency situations in the order of constitutionalism. They had separate views.
Those for having such provisions pointed out a shortcoming of the current
Constitution. One of those members said that the Constitution in effect allows thenation of Japan to give up its duty to protect the lives and properties of its people, aminimum duty imposed on a modern nation. That member maintained that theConstitution even denies preparing for national emergencies.
The other group of the members took a negative stance toward having suchprovisions. One of them said the idea highly suggests that the lack of provisions for
emergencies is not a defect of the Constitution but something that shows its positive
link to the adherence to pacifism.

44(8) Relationship Between Human Rights and Public Welfare (Relating to Article 12)
The Commission members were divided as to how we can achieve a good balance
between human rights and public welfare, and whether the Constitution needs tostipulate new provisions of the people’s duties to guarantee public welfare. (Frompage 109 to 110 of the Report)
Article 12 and other provisions of the Constitution prohibit the abuse of the freedom
and rights guaranteed to the people and stipulate that they should be utilized forthe public welfare. The public welfare refers to the public interest that allows all thepeople to live happily together.
The members had varied opinions as to how we should define the fundamental
human rights of a private individual and their relationship with the public interest,and how we should coordinate the two.
One of the members proposed the clarification of the concept of the public welfare,pointing out that the term is too vague and unclear to grasp. A different member
said that the limitations of human rights are excessively constrained under thename of protecting the public welfare, and that we should redefine the meaning of
the public welfare. Another member argued that mental freedom needs strict
standards of restriction on how and when it is allowed, and that economic freedom
needs individual standards to apply according to each case. It was also maintainedthat restraining human rights for military purposes to protect the public welfare
basically should not be allowed. Another member opposed the idea of restraining
human rights based on easy and unconvincing theories of protecting the publicwelfare.
They had separate views on how to deal with the issue of the public welfare and how
to achieve it.

(9) Rights and Duties (Relating to Chapter 3)
Some members argued that the Constitution needs more stipulations of the people’s
duties and responsibilities. They supported their argument by saying that a mature

45

democratic nation imposes responsibilities and duties on its people in exchange for
freedom and rights. Others opposed to this view. They said that it is not necessary for
the Constitution to reemphasize the people’s duties and responsibilities, given thehistorical background that one of the primary purposes of the Constitution was to limit
the national authority for the guarantee of the people’s rights. (From page 110 to112 of the Report)
At the commission’s discussions, some members wanted more stipulations of duties
and responsibilities in the Constitution than there currently are. One of them said
that the Constitution does not have a fair balance of stipulating rights and duties.
That member stressed the importance of stipulating new provisions concerning
duties.
Another member discussed what obligations we should add in the Constitution.
That member raised the obligation to defend the country, the obligation to share theburden of the social costs, such as social security premiums, in addition to tax, theobligation to protect their own families, the obligation to respect the dignity ofpeople’s lives, the obligation to respect and defend the Constitution, the obligation
to conserve the environment, among others.
Others denied the necessity of new provisions on duties and responsibilities. One ofthem argued that a primary purpose of the Constitution is to stipulate the duties ofthe state toward its people, not vice versa. That member opposed the idea of newly
stipulating in the Constitution duties and responsibilities, which are the other sideof the same coin of rights and freedom.

(10) Foreigners’ Right to Vote (Relating to Article 15)
The Commission members were separated as to whether foreigners living in Japan
should be given the right to vote in local elections. The issue was discussed in relation
to how we should define the significance of popular sovereignty and local autonomy.
(From page 115 to 116 of the Report)
The Commission members generally agreed that the fundamental human rights offoreigners should be basically guaranteed (See page 19). They had separate opinions

46

as to whether foreigners in Japan should be given a voting right in local elections.
Some supported the idea of providing the foreigners in Japan with the right to votein local elections. One of those members said denying foreigners with permanent
residency their right to vote in local elections does not make sense, given duties andresponsibilities they fulfill as community members. That member argued that weneed to guarantee it as a fundamental right, along with the guarantee of the rightto participate in local referendums. Another member maintained that we need tothink of new election systems that can reflect the will of foreigners in Japan withpermanent residency. A different member complained that it is unreasonable that
only foreigners lack the right to vote. Another member supported the idea of giving
them the right to vote, pointing out that it is reasonable from the standpoint ofproviding collective means to respectfully handle their self-determination.
Other members pointed out the difficulties in providing the right to vote in local
elections for foreigners in Japan with permanent residency. One of them wanted a
stipulation to that effect in the Constitution. That member said that their duty to
pay tax does not automatically guarantee their right to vote, explaining that they
pay their tax for the social infrastructure on which they carry out their economic
lives and activities. Another member raised the difficulty under existing
circumstances in making a clear distinction between the right to vote in national
elections and in local elections, because some issues relate to both, such as national
defense and education.
No one argued for providing these foreigners with the right to vote in national
elections.

(11) Freedom of Expression (Relating to Article 21)
The Commission members were divided on how freedom of expression should be
regulated in accordance with the development of mass media and information
technology. (From page 117 to 119 of the Report)
Freedom of expression refers to the freedom to publicize and communicate thoughts
and information. It is an essential right to have the process of democracy function

47smoothly.
The development of information technology, such as mass media and the Internet,
has created problems that did not exist before, including those of the outflow of
personal information and of using the technology for criminal purposes.
The members mainly debated how to protect human rights and privacy under thesecircumstances, how to control the mass media to protect juveniles from harmful
information, and also how to regulate harmful information on the Internet.
Some asked for new regulations on these newly developed media. One of them said
that resorting to trial cannot keep up with the fast pace with which new types ofhuman rights violations continue to happen. That member stressed the importanceof having some preliminary legal regulation for it.
Another member proposed making a damage payment higher for those who infringeon the human rights of others in these media. That member argued for the measure,saying that the victims would have to face the difficulty of having to pay for judicial
costs on their own for a long time, even if judicial help is ultimately important. A
different member raised the question of whether the regulation needs the
stipulation of protecting juveniles.
The other group of the members insisted that we should be careful with theseregulations. One of them argued that freedom of expression should not be basically
restricted, and that the free market of ideas should decide which should survive andwhich should not. That member pointed out the importance of how to protect andregulate freedom of expression in the new media, including the Internet, which hascome out of today’s advanced information age. That member also mentioned thepossibility that the mass media could infringe on the privacy rights of the people.
The Commission members had separate views on how to regulate the mass media
and information technology in accordance with their development.

(12) Separation of State and Religion (Relating to Article 20)

48

The Commission members are divided on how, and how much, the state should be
separated from religion, considering Japan’s history, tradition, and culture. (Frompage 120 to 121 of the Report)
To avoid making the same mistakes of the pre-war era, the current Constitution
strictly separates state and religion. The latter part of the first paragraph and thethird paragraph of Article 20 of the Constitution prohibit any religious organizationfrom receiving privileges from the state, stipulating its neutrality. However,members are divided on how, and how much, the state should be separated fromreligion, considering Japan’s history, tradition, and culture.
One of the Commission members argued that, though basically supporting theprinciple of the separation of state and religion, the participation of the state andlocal governments in certain religious activities should be allowed if these activities
can be categorized as social rituals, or conventional or cultural activities. Anothermember argued that the Constitution needs to stipulate right after Article 20 that
this article does not deny the tradition, culture, and convention common to theJapanese. They insisted on allowing more participation of the state and local
governments in the activities related to Japan’s culture and tradition.
Others, however, disagreed with these views. They asked for the strict enforcementof the separation of state and religion. One of them pointed out the importance ofArticle 20, saying that Article 20 came into being to avoid repeating the mistakes
caused by the pre-war regime. That member stressed that the pre-war regime hadan extremely close tie with state-sanctioned Shinto and its shrines, and that the tie
still exists.

(13) How the Cabinet Should Be, and the Enhancement of Its Functions (Relating to
Chapter 5)Some argued for the enhancement of the functions of the Cabinet, and others for theenhancements of the functions of the Diet. (From page 171 to 172 of the Report)
The principle of the parliamentary cabinet system is that a majority party in theDiet forms a cabinet and functions as the main body to exercise administrative

49

power. The argument focused on what improvements are necessary under thissystem. At the commission’s discussions, some argued for the enhancement of thefunctions of the Cabinet, and others for that of the functions of the Diet.
One of the members for enhancing the functions of the Cabinet argued that it isnecessary to allow more leadership by the Prime Minister. This is, that member
said, needed to eliminate sectionalism, along with the enhancement of the functionsof the Cabinet as a whole.
One of the members for enhancing the functions of the Diet emphasized that themore realistic challenge is how to enhance the function of the Diet to oversee thefunctions of the Cabinet. That member advocated the necessity of revitalizing thelawmaker-initiated legislation system and drastically improving the current
political system of consulting advisory bodies.

(14) Direct Election System of the Prime Minister (Relating to Article 67)
The Commission members were divided on the introduction of the direct election
system of the Prime Minister. (Page 174 of the Report)
The direct election system of the Prime Minister refers to the system by which thepeople directly choose the Prime Minister, the head of the administrative body.
Article 67 of the Constitution says, “The Prime Minister shall be designated fromamong the members of the Diet by a resolution of the Diet,” stipulating it is the Diet
members who choose the Prime Minister.
Some people support the idea of the direct election system of the Prime Minister.
They argue that the system will produce the Prime Minister in a way that is more
likely to reflect the will of the people.
Others, however, oppose to the idea. They express the concern that the Prime
Minister chosen by this system may lack a strong power base within the Diet, which
may make the functions of the administration body deadlock.
At the commission’s discussions, the members were divided on the introduction of

50

the direct election system of the Prime Minister.
One of the members against the introduction of the system said that you cannot ruleout the possibility of populism occurring in Japan’s politics. Another member raised
other issues, such as how to have the Prime Minister resign and how to deal with
the issue of the collective responsibility of the Cabinet. That member also pointed
out whether the Diet has the right to submit a non-confidence resolution to thePrime Minister, and what would happen when the Diet is dissolved. A different
member maintained that the direct election system of the Prime Minister is notcompatible with the characteristics of the parliamentary cabinet system stated in
the Constitution.
A member who values the system asked the people to raise their awareness of theparliamentary cabinet system in order to thoroughly discuss the direct election
system of the Prime Minister. That member said the Japanese people in generallack the awareness to participate in elections of the House of Representatives tochoose the Prime Minister, and that each of us should make the utmost effort tofirmly establish a true parliamentary cabinet system in Japan’s politics. Anothermember argued for the shift from the parliamentary cabinet system to the directelection system of the Prime Minister in order to familiarize the people more with
the

idea

of

popularsovereignty

and

to

completely

break

away

from

bureaucracy-oriented politics.

(15) Establishment of a Constitutional Court (Relating to Chapter 6)
The Commission members were divided on the issue of a constitutional court. (Frompage 187 to 189 of the Report)
There are generally two kinds of trials on constitutions, one by conventional courtsof justice, and the other by constitutional courts. These trials deliberate and decideif a law, order, or regulation will conform with the constitution.
The constitutional trials by conventional courts of justice are conducted through thedeliberation of an actual court case. Japan, the United States, and some othernations adopt this system. On the other hand, the constitutional trials by

51

constitutional courts are conducted by courts specifically organized to deliberateissues concerning constitutions. They function independent of regular courts ofjustice and administrative litigations. They do not deal with actual trial cases, butwith targeted provisions themselves to decide whether they fit the constitution.
Germany, among other nations, adopts this system.
Article 81 of the Constitution of Japan stipulates that a conventional court of justiceconducts trials on the issue of constitutionality. However, the current system ofJapan’s constitutionality trials is often criticized for having problems, some of whichwere raised at the commission’s discussions.
Being aware that the current system has problems, the Commission members
discussed how the trials on the issues of constitutions should be conducted. The
members were divided on the introduction of a constitutional court. Some supported
the idea, and others expressed negative views.
One of the members for the idea argued that it is necessary to establish aconstitutional court as a court of the first and last instance. That member said thatthe court would play dual roles as exercising concrete norm control and abstract
norm control.
One of the members who had negative views of the introduction of the system raised
problems with abstract deliberation conducted by a constitutional court. Thatmember said that the court will have to make political judgments, and that they
may put the maintenance of order before the protection of human rights.
That member supported the incidental system to determine constitutionality,
saying that this is a great system under which judicial reviews will be conducted onan actual incident with deep discussions, and that the system will complement an
abstract aspect of the legislative procedure.

(16) Stipulation of the Financial Assistance to Private Educational Institutions in
the Constitution (Relating to Article 89)
The Commission members were divided on whether the current stipulations in the52Constitution regarding financial assistance to private educational institutions should
remain as they are. (Page 193 of the Report)
As for the financial assistance to private educational institutions, Article 89
prohibits spending public money on educational enterprises not under the control of
pubic authority. Naturally, since the enforcement of the Constitution, there havebeen a lot of debates as to the constitutionality of past cases concerning theexpenditure of public money to private educational institutions.
At the commission’s discussions, the members agreed that it is necessary to provide
private educational institutions with financial assistance. They confirmed that
there are actually laws that allow financial assistance to reach these institutions,and that the government’s interpretation and the related court precedents regard it
as constitutional (See Page 25).
The members were divided, however, about whether the Constitution needs
amendments regarding this issue.
One of the members for the amendment of provisions of the Constitution said thatthe literal interpretation of Article 89 would clearly tell you that the financial
assistance to private educational institutions is unconstitutional. That member
argued for the amendment of related provisions in case they do not reflect thereality, and that the reality seems reasonable.
One of the members against the amendment insisted that the financial assistanceto private educational institutions has been interpreted as constitutional since thetime of the deliberation of the draft of the current Constitution at the Imperial Diet.
That member maintained that Article 26, which stipulates the right to education,
also supports the constitutionality of this measure.

(17) Board of Audit (Relating to Article 90)
The Commission members were divided on whether or not the Board of Audit should
be attached to the Diet or the House of Councillors. (From page 197 to 198 of theReport)53

Board of Audit is an organization stipulated in the Article 90 of the Constitution,
which audits the final account of the expenditures and revenues of the State. Article
1 of the Board of Audit Law defines that it “shall have an independent status of the
Cabinet.”The commission’s discussions focused on the positioning and functions of the Board
of Audit. It was well considered that the examination of the final accounts of thestate is a major function of the House of Councillors.
The Commission members were divided on how the Board of Audit should bepositioned in relation to the House of Councillors and what organization it should be
attached to, among other issues.
Some members supported the idea of attaching the Board of Audit to the House ofCouncillors. One of them said that it would make the House of Councillors more
responsible for examining the final accounts of the state. That member said it is not
the very best measure, but worth implementing.
Others were against the idea of attaching the Board of Audit to the House ofCouncillors. One of them insisted that the current system should be maintained,saying that its independence should be maintained.

(18) Local Referendum System (Relating to Article 93)
The Commission members were divided on whether a local referendum system shouldbe legislated. (From page 208 to 209 of the Report)
There have been examples of local referendums conducted to reflect the will of thelocal people concerning important issues such as the construction of a nuclear power
plant. The Constitution and the Local Autonomy Law, however, do not particularly
have a reference to the implementation of a local referendum about individual
issues.
There is a view that, with a system of implementing a local referendum about

54

individual issues, people will become more aware of their democratic rights. Others,
however, point out its potential problems, such as its legal positioning and thedanger of its possible abuse.
The Commission members were divided as to the legislation of a local referendum
system. Their opinions on the status quo of the local referendum system in Japanvaried from positive and negative ones to the cautious ones about the legislation of a
local referendum.
Some members expressed negative views of the current local referendum system.
One of them pointed out that the Public Office Election Law, which strictly
regulates the elections of assembly members, does not apply to corruption orhouse-to-house canvassing in local referendums. That member said that thoughpeople usually value the result of participatory democracy more, it is not necessarily
valid.
Others appreciated a local referendum system. One of them said that we willachieve the politics that reflect the will of the people more directly, by further
promoting decentralization of authority so that major decisions affecting their daily
lives will be made by local governments. That member said that the introduction ofa local referendum system is one of the effective ways to do so.
Other members expressed cautious views about the introduction of a local
referendum system. One of them maintained that the will of the people can bereflected through the elections of their local administrative chief and assembly
members or by the use of developed communications systems. That member raised
the concern that the implementation of a local referendum system may deny thesignificance of the direct election system of local administrative chiefs and assembly
members and the modalities for indirect democracy stipulated in the Constitution.
That member proposed considering a local referendum system as a complementary
method.

(19) Do-Shu System (Relating to Articles 92 and 94)
The Commission members were divided on whether we should introduce a do-shu

55system. (From page 211 to 212 of the Report)
The Commission members agreed that decentralization of power should be further
promoted (See page 29). They were divided, however, on whether we should
promote it under the framework of the current local government system or whether
we should establish a new framework that will replace the current one. Easy local
amalgamation in an attempt to strengthen the functions of lower-tier governments
may cause negative influences on the functions of prefectural governments. There
are varied views about this issue, including arguments for establishing regional
associations of prefectures, or even implementing a do-shu system of new upper
tiers.
The do-shu system refers to a new upper tier system of dividing the nation into newpolitical blocks larger than the conventional prefectural system. This is to achieve
possible merits brought by the broader-based local government system.
The introduction of a do-shu system was discussed, including the issue of amending
the conventional prefectural system. The members were divided as to its
introduction.
One of the members for its introduction argued that the current administrative andpolitical reforms will not be completed without restructuring local government
systems. That member proposed to consider the introduction of a do-shu system or afederation system.
Another member pointed out a positive influence by its introduction, on the
progress of the administrative reform. That member argued that, with a do-shu
system, the current local administrative structures would be vastly simplified,
which will streamline the operations of the central government.
The others insisted on being careful about its introduction. One of them argued thatthe introduction of a do-shu system could make local autonomy virtually
non-existent, saying that the system only makes it easier and more convenient forcompanies to carry out huge business projects.

56(20) Requirements for the Amendments to the Constitution (Relating to Article 96)
The Commission members were divided on whether the requirements necessary toamend the Constitution should be changed or not. Some demanded changes, whileothers took a cautious stance on that issue. (From page 214 to 216 of the Report)
Constitutions can be divided into two categories in terms of the procedure for theiramendments. Rigid constitutions require stricter amendment procedures thanother laws. Flexible constitutions need the same amendment procedures as otherconventional laws.
The Constitution of Japan is a typical example of a rigid constitution. Itsamendment procedures require a concurring vote of two-thirds or more of all themembers of each House, and the affirmative vote of a majority of all votes cast at areferendum. Some argue that this rule is too strict. At the commission’s discussions,the members were divided on whether the requirements necessary to amend theConstitution should be changed or not. Some demanded changes, while others took
a cautious stance on that issue.
One of the members asking for changes argued against the requirement of theaffirmative vote of two-thirds or more of all members of each House. That member
said that this means a vote of a member who wants to keep the status quo carries
the significance twice as important as that of a member who wants to change it on
an extremely crucial political issue, and that it is unreasonable. That member
proposed reducing it to a concurring vote of the half of the members of each House,
and that the final judgment should be left on the decisions of the people at anational referendum.
Those taking a cautious stance raised their concern. One of them said that to lower
a hurdle for the Constitutional amendments drastically is nothing but to abandon
the legal supremacy of the Constitution.
The Commission members agreed on the maintenance of the national referendum
system as a part of the amendment procedures of the Constitution(See page 29 and
30).

57

Appendix

58

59

The Constitution of Japan

Promulgated November 3, 1946

We, the Japanese people, acting through our duly elected representatives in the NationalDiet, determined that we shall secure for ourselves and our posterity the fruits of peacefulcooperation with all nations and the blessings of liberty throughout this land, and resolved thatnever again shall we be visited with the horrors of war through the action of government, do
proclaim that sovereign power resides with the people and do firmly establish this Constitution.
Government is a sacred trust of the people, the authority for which is derived from the people,
the powers of which are exercised by the representatives of the people, and the benefits ofwhich are enjoyed by the people. This is a universal principle of mankind upon which thisConstitution is founded. We reject and revoke all constitutions, laws, ordinances, and rescripts
in conflict herewith.
We, the Japanese people, desire peace for all time and are deeply conscious of the highideals controlling human relationship, and we have determined to preserve our security andexistence, trusting in the justice and faith of the peace-loving peoples of the world. We desire
to occupy an honored place in an international society striving for the preservation of peace,
and the banishment of tyranny and slavery, oppression and intolerance for all time from theearth. We recognize that all peoples of the world have the right to live in peace, free from fear
and want.
We believe that no nation is responsible to itself alone, but that laws of political morality are
universal; and that obedience to such laws is incumbent upon all nations who would sustain
their own sovereignty and justify their sovereign relationship with other nations.
We, the Japanese people, pledge our national honor to accomplish these high ideals andpurposes with all our resources.

CHAPTER I. THE EMPEROR

Article 1.

The Emperor shall be the symbol of the State and of the unity of the people,

deriving his position from the will of the people with whom resides sovereign power.

60

Article 2.

The Imperial Throne shall be dynastic and succeeded to in accordance with theImperial House Law passed by the Diet.

Article 3.

The advice and approval of the Cabinet shall be required for all acts of theEmperor in matters of state, and the Cabinet shall be responsible therefor.

Article 4.

The Emperor shall perform only such acts in matters of state as are provided

for in this Constitution and he shall not have powers related to government.
The Emperor may delegate the performance of his acts in matters of state as may beprovided by law.

Article 5.

When, in accordance with the Imperial House Law, a Regency is established,

the Regent shall perform his acts in matters of state in the Emperor's name. In this case,paragraph one of the preceding article will be applicable.

Article 6.

The Emperor shall appoint the Prime Minister as designated by the Diet.

The Emperor shall appoint the Chief Judge of the Supreme Court as designated by the
Cabinet.

Article 7.

The Emperor, with the advice and approval of the Cabinet, shall perform thefollowing acts in matters of state on behalf of the people:
Promulgation of amendments of the constitution, laws,
cabinet orders and treaties.
Convocation of the Diet.
Dissolution of the House of Representatives.
Proclamation of general election of members of the Diet.
Attestation of the appointment and dismissal of Ministers ofState and other officials as provided for by law, and of fullpowers and credentials of Ambassadors and Ministers.
Attestation of general and special amnesty, commutation ofpunishment, reprieve, and restoration of rights.
Awarding of honors.
Attestation of instruments of ratification and other
diplomatic documents as provided for by law.
Receiving foreign ambassadors and ministers.

61

Performance of ceremonial functions.

Article 8.

No property can be given to, or received by, the Imperial House, nor can any

gifts be made therefrom, without the authorization of the Diet.

CHAPTER II.

Article 9.

RENUNCIATION OF WAR

Aspiring sincerely to an international peace based on justice and order, theJapanese people forever renounce war as a sovereign right of the nation and the threat or use
of force as means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as wellas other war potential, will never be maintained. The right of belligerency of the state will not berecognized.

CHAPTER III. RIGHTS AND DUTIES OF THE PEOPLE

Article 10.

The conditions necessary for being a Japanese national shall be determinedby law.

Article 11.

The people shall not be prevented from enjoying any of the fundamental

human rights. These fundamental human rights guaranteed to the people by this Constitution
shall be conferred upon the people of this and future generations as eternal and inviolate rights.

Article 12.

The freedoms and rights guaranteed to the people by this Constitution shallbe maintained by the constant endeavor of the people, who shall refrain from any abuse of
these freedoms and rights and shall always be responsible for utilizing them for the publicwelfare.

Article 13.

All of the people shall be respected as individuals. Their right to life, liberty,

and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare,be the supreme consideration in legislation and in other governmental affairs.

Article 14.

All of the people are equal under the law and there shall be no discriminationin political, economic or social relations because of race, creed, sex, social status or family

62

origin.
Peers and peerage shall not be recognized.
No privilege shall accompany any award of honor, decoration or any distinction, nor shallany such award be valid beyond the lifetime of the individual who now holds or hereafter may
receive it.

Article 15.

The people have the inalienable right to choose their public officials and to

dismiss them.
All public officials are servants of the whole community and not of any group thereof.
Universal adult suffrage is guaranteed with regard to the election of public officials.
In all elections, secrecy of the ballot shall not be violated. A voter shall not be answerable,
publicly or privately, for the choice he has made.

Article 16.

Every person shall have the right of peaceful petition for the redress ofdamage, for the removal of public officials, for the enactment, repeal or amendment of laws,
ordinances or regulations and for other matters; nor shall any person be in any way
discriminated against for sponsoring such a petition.

Article 17.

Every person may sue for redress as provided by law from the State or apublic entity, in case he has suffered damage through illegal act of any public official.

Article 18.

No person shall be held in bondage of any kind. Involuntary servitude, except

as punishment for crime, is prohibited.

Article 19.

Freedom of thought and conscience shall not be violated.

Article 20.

Freedom of religion is guaranteed to all. No religious organization shallreceive any privileges from the State, nor exercise any political authority.
No person shall be compelled to take part in any religious act, celebration, rite or practice.
The State and its organs shall refrain from religious education or any other religious activity.

Article 21.

Freedom of assembly and association as well as speech, press and all otherforms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of any means of communication beviolated.

63

Article 22.

Every person shall have freedom to choose and change his residence and tochoose his occupation to the extent that it does not interfere with the public welfare.
Freedom of all persons to move to a foreign country and to divest themselves of theirnationality shall be inviolate.

Article 23.

Academic freedom is guaranteed.

Article 24.

Marriage shall be based only on the mutual consent of both sexes and it shallbe maintained through mutual cooperation with the equal rights of husband and wife as a basis.
With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce
and other matters pertaining to marriage and the family, laws shall be enacted from thestandpoint of individual dignity and the essential equality of the sexes.

Article 25.

All people shall have the right to maintain the minimum standards ofwholesome and cultured living.
In all spheres of life, the State shall use its endeavors for the promotion and extension ofsocial welfare and security, and of public health.

Article 26.

All people shall have the right to receive an equal education correspondent totheir ability, as provided by law.
All people shall be obligated to have all boys and girls under their protection receive
ordinary education as provided for by law. Such compulsory education shall be free.

Article 27.

All people shall have the right and the obligation to work.

Standards for wages, hours, rest and other working conditions shall be fixed by law.
Children shall not be exploited.

Article 28.

The right of workers to organize and to bargain and act collectively isguaranteed.

Article 29.

The right to own or to hold property is inviolable.

Property rights shall be defined by law, in conformity with the public welfare.
Private property may be taken for public use upon just compensation therefor.

Article 30.

The people shall be liable to taxation as provided by law.

64

Article 31.

No person shall be deprived of life or liberty, nor shall any other criminal

penalty be imposed, except according to procedure established by law.

Article 32.

No person shall be denied the right of access to the courts.

Article 33.

No person shall be apprehended except upon warrant issued by a competentjudicial officer which specifies the offense with which the person is charged, unless he isapprehended, the offense being committed.

Article 34.

No person shall be arrested or detained without being at once informed of thecharges against him or without the immediate privilege of counsel; nor shall he be detained
without adequate cause; and upon demand of any person such cause must be immediately
shown in open court in his presence and the presence of his counsel.

Article 35.

The right of all persons to be secure in their homes, papers and effects

against entries, searches and seizures shall not be impaired except upon warrant issued foradequate cause and particularly describing the place to be searched and things to be seized, or
except as provided by Article 33.
Each search or seizure shall be made upon separate warrant issued by a competent judicial
officer.

Article 36.

The infliction of torture by any public officer and cruel punishments are

absolutely forbidden.

Article 37.

In all criminal cases the accused shall enjoy the right to a speedy and public

trial by an impartial tribunal.
He shall be permitted full opportunity to examine all witnesses, and he shall have the rightof compulsory process for obtaining witnesses on his behalf at public expense.
At all times the accused shall have the assistance of competent counsel who shall, if theaccused is unable to secure the same by his own efforts, be assigned to his use by the State.

Article 38.

No person shall be compelled to testify against himself.

Confession made under compulsion, torture or threat, or after prolonged arrest or
detention shall not be admitted in evidence.
No person shall be convicted or punished in cases where the only proof against him is his
own confession.

65

Article 39.

No person shall be held criminally liable for an act which was lawful at thetime it was committed, or of which he has been acquitted, nor shall he be placed in double
jeopardy.

Article 40.

Any person, in case he is acquitted after he has been arrested or detained,

may sue the State for redress as provided by law.

CHAPTER IV.

Article 41.

THE DIET

The Diet shall be the highest organ of state power, and shall be the solelaw-making organ of the State.

Article 42.

The Diet shall consist of two Houses, namely the House of Representatives

and the House of Councillors.

Article 43.

Both Houses shall consist of elected members, representative of all thepeople.
The number of the members of each House shall be fixed by law.

Article 44.

The qualifications of members of both Houses and their electors shall be fixedby law. However, there shall be no discrimination because of race, creed, sex, social status,
family origin, education, property or income.

Article 45.

The term of office of members of the House of Representatives shall be four

years. However, the term shall be terminated before the full term is up in case the House ofRepresentatives is dissolved.

Article 46.

The term of office of members of the House of Councillors shall be six years,

and election for half the members shall take place every three years.

Article 47.

Electoral districts, method of voting and other matters pertaining to themethod of election of members of both Houses shall be fixed by law.

Article 48.

No person shall be permitted to be a member of both Houses simultaneously.

66

Article 49.

Members of both Houses shall receive appropriate annual payment from thenational treasury in accordance with law.

Article 50.

Except in cases provided by law, members of both Houses shall be exempt

from apprehension while the Diet is in session, and any members apprehended before theopening of the session shall be freed during the term of the session upon demand of the House.

Article 51.

Members of both Houses shall not be held liable outside the House forspeeches, debates or votes cast inside the House.

Article 52.

An ordinary session of the Diet shall be convoked once per year.

Article 53.

The Cabinet may determine to convoke extraordinary sessions of the Diet.

When a quarter or more of the total members of either House makes the demand, the Cabinet
must determine on such convocation.

Article 54.

When the House of Representatives is dissolved, there must be a generalelection of members of the House of Representatives within forty (40) days from the date ofdissolution, and the Diet must be convoked within thirty (30) days from the date of the election.
When the House of Representatives is dissolved, the House of Councillors is closed at thesame time. However, the Cabinet may in time of national emergency convoke the House ofCouncillors in emergency session.
Measures taken at such session as mentioned in the proviso of the preceding paragraphshall be provisional and shall become null and void unless agreed to by the House ofRepresentatives within a period of ten (10) days after the opening of the next session of the
Diet.

Article 55.

Each House shall judge disputes related to qualifications of its members.

However, in order to deny a seat to any member, it is necessary to pass a resolution by amajority of two-thirds or more of the members present.

Article 56.

Business cannot be transacted in either House unless one-third or more of

total membership is present.
All matters shall be decided, in each House, by a majority of those present, except as
elsewhere provided in the Constitution, and in case of a tie, the presiding officer shall decide the67issue.

Article 57.

Deliberation in each House shall be public. However, a secret meeting may beheld where a majority of two-thirds or more of those members present passes a resolution
therefor.
Each House shall keep a record of proceedings. This record shall be published and given
general circulation, excepting such parts of proceedings of secret session as may be deemed torequire secrecy.
Upon demand of one-fifth or more of the members present, votes of the members on any
matter shall be recorded in the minutes.

Article 58.

Each House shall select its own president and other officials.

Each House shall establish its rules pertaining to meetings, proceedings and internal
discipline, and may punish members for disorderly conduct. However, in order to expel amember, a majority of two-thirds or more of those members present must pass a resolution
thereon.

Article 59.

A bill becomes a law on passage by both Houses, except as otherwise

provided by the Constitution.
A bill which is passed by the House of Representatives, and upon which the House ofCouncillors makes a decision different from that of the House of Representatives, becomes alaw when passed a second time by the House of Representatives by a majority of two-thirds ormore of the members present.
The provision of the preceding paragraph does not preclude the House of Representatives
from calling for the meeting of a joint committee of both Houses, provided for by law.
Failure by the House of Councillors to take final action within sixty (60) days after receipt ofa bill passed by the House of Representatives, time in recess excepted, may be determined by
the House of Representatives to constitute a rejection of the said bill by the House ofCouncillors.

Article 60.

The budget must first be submitted to the House of Representatives.

Upon consideration of the budget, when the House of Councillors makes a decision different
from that of the House of Representatives, and when no agreement can be reached eventhrough a joint committee of both Houses, provided for by law, or in the case of failure by theHouse of Councillors to take final action within thirty (30) days, the period of recess excluded,
after the receipt of the budget passed by the House of Representatives, the decision of the68

House of Representatives shall be the decision of the Diet.

Article 61.

The second paragraph of the preceding article applies also to the Dietapproval required for the conclusion of treaties.

Article 62.

Each House may conduct investigations in relation to government, and may

demand the presence and testimony of witnesses, and the production of records.

Article 63.

The Prime Minister and other Ministers of State may, at any time, appear ineither House for the purpose of speaking on bills, regardless of whether they are members ofthe House or not. They must appear when their presence is required in order to give answers or
explanations.

Article 64.

The Diet shall set up an impeachment court from among the members ofboth Houses for the purpose of trying those judges against whom removal proceedings havebeen instituted.
Matters relating to impeachment shall be provided by law.

CHAPTER V.

THE CABINET

Article 65.

Executive power shall be vested in the Cabinet.

Article 66.

The Cabinet shall consist of the Prime Minister, who shall be its head, andother Ministers of State, as provided for by law.
The Prime Minister and other Ministers of State must be civilians.
The Cabinet, in the exercise of executive power, shall be collectively responsible to the Diet.

Article 67.

The Prime Minister shall be designated from among the members of the Dietby a resolution of the Diet. This designation shall precede all other business.
If the House of Representatives and the House of Councillors disagree and if no agreement
can be reached even through a joint committee of both Houses, provided for by law, or theHouse of Councillors fails to make designation within ten (10) days, exclusive of the period ofrecess, after the House of Representatives has made designation, the decision of the House ofRepresentatives shall be the decision of the Diet.

69

Article 68.

The Prime Minister shall appoint the Ministers of State. However, a majorityof their number must be chosen from among the members of the Diet.
The Prime Minister may remove the Ministers of State as he chooses.

Article 69.

If the House of Representatives passes a non-confidence resolution, or

rejects a confidence resolution, the Cabinet shall resign en masse, unless the House ofRepresentatives is dissolved within ten (10) days.

Article 70.

When there is a vacancy in the post of Prime Minister, or upon the first

convocation of the Diet after a general election of members of the House of Representatives,
the Cabinet shall resign en masse.

Article 71.

In the cases mentioned in the two preceding articles, the Cabinet shallcontinue its functions until the time when a new Prime Minister is appointed.

Article 72.

The Prime Minister, representing the Cabinet, submits bills, reports on

general national affairs and foreign relations to the Diet and exercises control and supervision
over various administrative branches.

Article 73.

The Cabinet, in addition to other general administrative functions, shallperform the following functions:
Administer the law faithfully; conduct affairs of state.
Manage foreign affairs.
Conclude treaties. However, it shall obtain prior or,
depending on circumstances, subsequent approval of theDiet.
Administer the civil service, in accordance with standards
established by law.
Prepare the budget, and present it to the Diet.
Enact cabinet orders in order to execute the provisions of
this Constitution and of the law. However, it cannot include
penal provisions in such cabinet orders unless authorized
by such law.
Decide on general amnesty, special amnesty, commutationof punishment, reprieve, and restoration of rights.

70

Article 74.

All laws and cabinet orders shall be signed by the competent Minister of Stateand countersigned by the Prime Minister.

Article 75.

The Ministers of State, during their tenure of office, shall not be subject tolegal action without the consent of the Prime Minister. However, the right to take that action is
not impaired hereby.

CHAPTER VI.

Article 76.

JUDICIARY

The whole judicial power is vested in a Supreme Court and in such inferior

courts as are established by law.
No extraordinary tribunal shall be established, nor shall any organ or agency of the
Executive be given final judicial power.
All judges shall be independent in the exercise of their conscience and shall be bound onlyby this Constitution and the laws.

Article 77.

The Supreme Court is vested with the rule-making power under which it

determines the rules of procedure and of practice, and of matters relating to attorneys, theinternal discipline of the courts and the administration of judicial affairs.
Public procurators shall be subject to the rule-making power of the Supreme Court.
The Supreme Court may delegate the power to make rules for inferior courts to such courts.

Article 78.

Judges shall not be removed except by public impeachment unless judiciallydeclared mentally or physically incompetent to perform official duties. No disciplinary action
against judges shall be administered by any executive organ or agency.

Article 79.

The Supreme Court shall consist of a Chief Judge and such number of judges

as may be determined by law; all such judges excepting the Chief Judge shall be appointed by
the Cabinet.
The appointment of the judges of the Supreme Court shall be reviewed by the people at thefirst general election of members of the House of Representatives following their appointment,
and shall be reviewed again at the first general election of members of the House ofRepresentatives after a lapse of ten (10) years, and in the same manner thereafter.
In cases mentioned in the foregoing paragraph, when the majority of the voters favors thedismissal of a judge, he shall be dismissed.

71

Matters pertaining to review shall be prescribed by law.
The judges of the Supreme Court shall be retired upon the attainment of the age as fixed bylaw.
All such judges shall receive, at regular stated intervals, adequate compensation whichshall not be decreased during their terms of office.

Article 80.

The judges of the inferior courts shall be appointed by the Cabinet from a listof persons nominated by the Supreme Court. All such judges shall hold office for a term of ten(10) years with privilege of reappointment, provided that they shall be retired upon theattainment of the age as fixed by law.
The judges of the inferior courts shall receive, at regular stated intervals, adequate
compensation which shall not be decreased during their terms of office.

Article 81.

The Supreme Court is the court of last resort with power to determine theconstitutionality of any law, order, regulation or official act.

Article 82.

Trials shall be conducted and judgment declared publicly. Where a court

unanimously determines publicity to be dangerous to public order or morals, a trial may be
conducted privately, but trials of political offenses, offenses involving the press or cases
wherein the rights of people as guaranteed in Chapter III of this Constitution are in question
shall always be conducted publicly.

CHAPTER VII.

Article 83.

FINANCEThe power to administer national finances shall be exercised as the Diet shalldetermine.

Article 84.

No new taxes shall be imposed or existing ones modified except by law or

under such conditions as law may prescribe.

Article 85.

No money shall be expended, nor shall the State obligate itself, except asauthorized by the Diet.

Article 86.

The Cabinet shall prepare and submit to the Diet for its consideration anddecision a budget for each fiscal year.

72

Article 87.

In order to provide for unforeseen deficiencies in the budget, a reserve fund

may be authorized by the Diet to be expended upon the responsibility of the Cabinet.
The Cabinet must get subsequent approval of the Diet for all payments from the reserve
fund.

Article 88.

All property of the Imperial Household shall belong to the State. All expensesof the Imperial Household shall be appropriated by the Diet in the budget.

Article 89.

No public money or other property shall be expended or appropriated for theuse, benefit or maintenance of any religious institution or association, or for any charitable,
educational or benevolent enterprises not under the control of public authority.

Article 90.

Final accounts of the expenditures and revenues of the State shall be audited

annually by a Board of Audit and submitted by the Cabinet to the Diet, together with thestatement of audit, during the fiscal year immediately following the period covered.
The organization and competency of the Board of Audit shall be determined by law.

Article 91.

At regular intervals and at least annually the Cabinet shall report to the Dietand the people on the state of national finances.

CHAPTER VIII.

Article 92.

LOCAL SELF-GOVERNMENT

Regulations concerning organization and operations of local public entities

shall be fixed by law in accordance with the principle of local autonomy.

Article 93.

The local public entities shall establish assemblies as their deliberative

organs, in accordance with law.
The chief executive officers of all local public entities, the members of their assemblies, andsuch other local officials as may be determined by law shall be elected by direct popular votewithin their several communities.

Article 94.

Local public entities shall have the right to manage their property, affairs andadministration and to enact their own regulations within law.

73

Article 95.

A special law, applicable only to one local public entity, cannot be enacted by

the Diet without the consent of the majority of the voters of the local public entity concerned,
obtained in accordance with law.

CHAPTER IX.

Article 96.

AMENDMENTS

Amendments to this Constitution shall be initiated by the Diet, through aconcurring vote of two-thirds or more of all the members of each House and shall thereupon besubmitted to the people for ratification, which shall require the affirmative vote of a majority ofall votes cast thereon, at a special referendum or at such election as the Diet shall specify.
Amendments when so ratified shall immediately be promulgated by the Emperor in thename of the people, as an integral part of this Constitution.

CHAPTER X.

Article 97.

SUPREME LAW

The fundamental human rights by this Constitution guaranteed to the peopleof Japan are fruits of the age-old struggle of man to be free; they have survived the many
exacting tests for durability and are conferred upon this and future generations in trust, to beheld for all time inviolate.

Article 98.

This Constitution shall be the supreme law of the nation and no law,ordinance, imperial rescript or other act of government, or part thereof, contrary to theprovisions hereof, shall have legal force or validity.
The treaties concluded by Japan and established laws of nations shall be faithfully observed.

Article 99.

The Emperor or the Regent as well as Ministers of State, members of the Diet,

judges, and all other public officials have the obligation to respect and uphold this Constitution.

CHAPTER XI.

Article 100.

SUPPLEMENTARY PROVISIONSThis Constitution shall be enforced as from the day when the period of six

months will have elapsed counting from the day of its promulgation.
The enactment of laws necessary for the enforcement of this Constitution, the election of

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members of the House of Councillors and the procedure for the convocation of the Diet andother preparatory procedures necessary for the enforcement of this Constitution may be
executed before the day prescribed in the preceding paragraph.

Article 101.

If the House of Councillors is not constituted before the effective date of thisConstitution, the House of Representatives shall function as the Diet until such time as theHouse of Councillors shall be constituted.

Article 102.

The term of office for half the members of the House of Councillors serving

in the first term under this Constitution shall be three years. Members falling under thiscategory shall be determined in accordance with law.

Article 103.

The Ministers of State, members of the House of Representatives andjudges in office on the effective date of this Constitution, and all other public officials who
occupy positions corresponding to such positions as are recognized by this Constitution shallnot forfeit their positions automatically on account of the enforcement of this Constitution
unless otherwise specified by law. When, however, successors are elected or appointed under
the provisions of this Constitution they shall forfeit their positions as a matter of course.

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Acknowledgement
Our Website
Please visit the website of the Research Commission on the Constitution. It offers
you a chance to look at the Research Report on the Constitution of Japan and its
attached materials, as well as other materials concerning the Constitution.
http://www.sangiin.go.jp/japanese/kenpou/index.htm(Available in Japanese only)
We would appreciate your feedback.
Your feedback on this handbook and the Research Report on the Constitution ofJapan would be very much appreciated.
Please send your feedback to:
Office of the Research Commission on the Constitution,
House of Councillors
House of Councillors East Annex
1-11-16 Nagata-cho, Chiyoda-ku
Tokyo 100-0014, JapanTel

81-3-5521-7684

Fax 81-3-5512-3925
Email: sankenpou@sangiin.go.jp