Constitution of the Empire of Japan (大日本帝国憲法)
The Constitution of the Empire of Japan was the organic law of the Empire of Japan based on the idea of modern constitutionalism, promulgated on February 11, 1889, and came into effect on November 29, 1890. The Constitution is also called "the Meiji Constitution" or "the Constitution of the Empire." It was sometimes called the former constitution in contradistinction to the current constitution, the Constitution of Japan.
It was the second modern constitution in Asia after the constitution of the Ottoman Empire enacted in 1876. Since the expression 'the constitution never worn thin' was used in the Imperial speech about the Constitution of the Empire of Japan, the Constitution had not been modified for more than 50 years until it was replaced by the Constitution of Japan in 1947.
Changes in the national polity after the Meiji Restoration
After the Meiji Restoration which began in 1868, various reforms were implemented in Japan, and the national polity was radically changed.
On November 9, 1867, the 15th Shogun, Yoshinobu TOKUGAWA declared the return of political authority to the Emperor Meiji, and the next day, the Emperor accepted it (Taisei hokan). On January 3, 1868, the Edo bakufu (Japanese feudal government headed by a shogun) came to its official end, and a new government (the Meiji government) was established (Osei Fukko). The new government aimed at a modern bureaucracy on the condition that the emperor held the prerogative to control official affairs. In this way, Japan shifted from a representative monarchy based on the feudal system characteristic of the shogunate to direct monarchy with a modern bureaucratic organization. Article 10 of the Constitution of the Empire of Japan defined that the emperor held the prerogative to control official affairs.
On July 25, 1869, lords of domains returned their right to rule the land and people to the emperor (Hanseki-hokan). This meant that the central government, on behalf of the emperor, could directly rule land and people, and exercise ruling powers (legislative power, executive power, and judicial power). In addition, on August 29, 1871, the policy of Haihan-chiken (abolition of feudal domains and the establishment of prefectures) was enforced, and feudal domains were practically abolished and the central government seized all ruling powers. According to Articles 1 and 4 of the Constitution of the Empire of Japan, the emperor held all the rights of sovereignty.
Since feudal systems of domains were abolished under the policy of Haihan-chiken, people were able to move to a different domain. The Article 27 of the Constitution of the Empire of Japan provided people with the right of property, and the Article 22 provided the right of movement.
After Hanseki-hokan, the new government defined new address terms, Kazoku (the peerage) for court nobles and feudal lords, Shizoku (warrior class) for samurai warriors, Sotsuzoku for conscripted foot soldiers, and Heimin (commoner) for other people. In 1871, the warrior class became able to engage in not only public services, but also farming, industrial jobs or commercial business, and commoners could engage in public services. Since the government introduced a conscription system in 1872 and Japan became a nation with universal conscription, the military forces were no longer monopolized by the warrior class. In this way, the warrior class lost their exclusive privilege. Article 19 of the Constitution of the Empire of Japan guaranteed equal rights of all the people to engage in public services, and article 20 defined the people's duty of military service. Prior to the opening of the Imperial Diet, the government established the Peerage Law to give Kazoku hierarchical privileges. Article 34 of the Constitution of the Empire of Japan provided Kazoku with the right to be members of the House of Peers (Japan).
Transformation during the Meiji period
After Osei Fukko, three official positions (President, Legislators, and Councilors) were newly established, and some Councilors such as Kosei YURI, Takachika FUKUOKA and Takayoshi KIDO itemized a basic policy of the new government, based on esteem for parliamentary regime and opening of the country, into five articles. The Charter Oath of Five Articles was promulgated on April 6, 1868, which the Emperor Meiji swore by Tenchishinmei (The Gods of Heaven and Earth) to realize.
1. Deliberative assemblies shall be widely established and all matters decided by open discussion. 1. All classes, high and low, shall be united in vigorously carrying out the administration of affairs of state. 1. The common people, no less than the civil and military officials, shall all be allowed to pursue their own calling so that there may be no discontent. 1. Evil customs of the past shall be broken off and everything shall be based on the just laws of nature. 1. Knowledge shall be sought throughout the world to strengthen the foundation of imperial rule.
The government issued Dajokan Seitaisho (the declaration of a new governing system) on June 11, 1868 in order to comply with the rules defined by the Charter Oath of the Five Articles. According to Seitaisho, seven new departments were established to realize the separation of the powers. One of seven departments was Giseikan which was a legislative assembly for public opinion. However, when the Boshin War was almost over, the government became negative about regarding public opinion in a deliberative assembly, and in October, 1868, they abolished Giseikan.
In April, 1869, following results of investigations by the parliament system interrogation office, Kogisyo (the lower house) was newly established. Kogisho was a legislature consisting of representatives selected one person from each domain. Kogisho was changed into Shugiin October, 1869. On August 29, 1871, Haihan-chiken (abolition of feudal domains and the establishment of prefectures) was implemented, and Daijokan (Grand Council of State) was reformed. Daijokan consisted of the Central, Left and Right Councils, and Shugiin was replaced by the Left Council and became a legislature consisting of representatives assigned by the government.
In 1874, Taneomi SOEJIMA, Taisuke ITAGAKI, Shojiro GOTO and Shinpei ETO who resigned from their post due to the political upheaval in 1873 (the dispute of Seikanron [debate on subjugation of Korea]) submitted a political statement for democratic representatives in their joint names. Their political statement insisted on the establishment of a legislature consisting of members selected by the public, not the government, and abolishment of despotism by bureaucrats. And those were essential for keeping national power and boosting national prestige. Following this statement, criticism of oligarchy by Satsuma and Choshu clans grew into the Freedom and People's Rights Movement, and political associations were established in various places. Around the same time, in various places, rebellions were frequently held by the warrior class who had complaints about the government, and it deteriorated public security in Japan. Famous rebellions were the Saga War in 1874, Shinpuren Rebellion in 1876, and the Seinan War in 1877.
In April 14, 1875, the Imperial Rescript for the constitutional system of the government (Imperial Rescript for gradual shift to the constitutional system of government) was issued.
I…established Genro-in (the Chamber of Elders) to develop nation's legislation, and established Daishin-in (Predecessor of the Supreme Court) to secure independence of the judiciary, and also summoned local officials to listen to the voices of the people and secure public interest, and aimed at a gradual shift to the constitutional system of government that provided benefits to both me and the public. In a word, the emperor declared the establishment of Genro-in, Daishin-in, and local administrative assemblies and gradual shift to the constitutional system of government. The Osaka conference held by important government officials such as Toshimichi OKUBO and Hirobumi ITO, and democratic activists such as Takayoshi KIDO and Taisuke ITAGAKI resulted in this declaration. To address political instability in local areas, rules of prefectures were issued in 1878, and a prefectural (local) assembly by popular election was established in each prefecture. This was the first popularly-elected parliament in Japan.
Freedom and the People's Rights Movement
During the Freedom and People's Rights Movement since 1874, many common people all over Japan published their own ideas for a constitution. However, since the government drafted the Constitution of the Empire of Japan without discussing public ideas, they were not reflected in the constitution at all. The government issued various acts to oppress the citizens' speech and political activities such as the Defamation Law, Press Regulations in 1875 and the Public Assembly Ordinance in 1880. Regulations for the Reservation of Law and Order in 1887 enforced people-rights activists to leave Tokyo, and if activists refused, they were captured.
There were various studies of public ideas for a constitution. Most of the public ideas included detailed descriptions of human rights to oppose suppression of free speeches and political activities by the government. Some people said that public ideas for the emperor's status was not so different from that defined in the constitution. This theory was based on the following idea.
Democratic activists used to be people with reverence for the emperor who had fought during the Meiji restoration, and they considered the emperor as the ultimate advocate of public rights and benefits.'
For example, a constitution draft which was renownedas a grass-roots constitution written by Takusaburo CHIBA and others (so-called Itsukaichi constitution) shared the same points with the Constitution of the Empire of Japan as defining that the emperor should have the executive powers, legislature, and judiciary, and supreme command of the armies, and this was sacred and inviolable.
Movement to establish the constitution
On September 6, 1876, the Emperor Meiji issued "Ordinance to order the Imperial Prince Arisugawanomiya Taruhito to draft a national constitution."
The contents of the ordinance were as follows;
I'm aiming at the establishment of a national constitution based on Japan's national polity, and with reference to constitutions of other countries. You should prepare drafts and bring them to me.
I'll select ideas from your drafts.'
As mentioned above, the emperor ordered the preparation of drafts of a constitution after studies on other countries' constitutions. The Camber of Elders established a Constitution Interrogation Office in response to the ordinance.
In 1880, the Camber of Elders submitted 'Japan's national constitution draft' as a final draft, and the Minister of the Treasury, Shigenobu OKUMA also submitted 'My opinion on a constitution.'
Japan's national constitution draft was strongly influenced by the constitutions of Belgium (1831) and Prussia (1850), and insisted the emperor's compliance with the constitution and the strong authority of the assembly. Therefore, Tomomi IWAKURA and Hirobumi ITO disagreed with the draft, and neither Japan's national constitution draft nor Okuma's opinion on a constitution was adopted.
A group led by Tomomi IWAKURA dismissed Shigenobu OKUMA during the political upheaval in 1881, and immediately after that, they held a conference in the presence of the emperor and decided the establishment of a national diet.
Following this incident, the Imperial Rescript for the establishment of the national diet was issued in October 12, 1881, and its contents were as follows;
First, the national diet (assembly) would be established in 1890, and second, organizations and authority of the diet should be decided by the government (constitution enacted by the emperor), and third, further political arguments should be prohibited, and forth, people who attempt domestic conflicts would be punished. The government retrieved its political initiative with this rescript.
Process until promulgation
A councilor, Hirobumi ITO and others went to Europe as 'government officials' on orders from the government in March, 1882, and started investigating theory and practice of German constitutionalism.
Ito received the following advice from Rudolf von GNEIST of the University of Berlin and Lorenz von STEIN of the University of Vienna, 'Since a constitution should be built based on a nation's history, tradition, and culture, if you aimed at establishing the nation's constitution, you should learn the history of that nation first.'
After the study, Ito believed that the German constitution was the most suitable to model after for Japan's constitution (But Ito reproved Kowashi INOUE who overvalued German system, and thought that they could not introduce German constitution as it was.)
Ito said in his letter to Japan that he could not be associate with Gneist because he was a right-wing extremist, but had a good chemistry with Stein. Ito returned to Japan in 1883, and ordered Kowashi INOUE to prepare a constitution draft. And Ito established the constitution interrogation office (its name was changed into the political system interrogation office the next year) so as to prepare for a constitution and a national diet.
In 1885, Daijokan (Grand Council of State) was abolished and the first cabinet was established, and Hirobumi ITO became the first Prime Minister. Inoue was advised from a German official legal adviser, Karl Friedrich Hermann ROESLER and Albert MOSSE to prepare a constitutional draft, and completed the final draft in May, 1887. Based on this draft, Ito, Inoue, Miyoji ITO and Kentaro KANEKO had further discussions at Ito's villa in Natsushima (Yokosuka City, Kanagawa Prefecture), and completed the Natsushima draft. After that, they modified the Natsushima draft, and wrote a final draft in April, 1888. Just after that, Ito established the Privy Council as a consultative body of the emperor, and he became a chair person of the Privy Council and deliberated the constitutional draft. Deliberation at the Privy Council was over in January, 1889.
The Constitution of the Empire of Japan was promulgated on February 11, 1889, and then announced to the public. This constitution was thought to be the constitution enacted by the emperor, so it was promulgated by handing it down from the emperor to Prime Minister, Kiyotaka KURODA, and Japan became the first constitutional monarchy with a modern constitution in East Asia. At the same time, the Imperial House Law, which was a statement of rules for the Imperial Family, was issued. The Parliamentary Law, Law of House of Peers, and the House of Representatives Election Law were also enacted the same time. The Constitution of the Empire of Japan was come into effect on November 29, 1889 when the first Imperial Diet session was open.
People were excited about the new constitution even before contents of the constitution were announced, and celebration gates and illuminations were seen everywhere, and a lantern procession was held. Democratic activists and newspapers of that time also highly evaluated the Constitution of the Empire of Japan, and celebrated its promulgation.
Democratic activist, Sanae TAKATA evaluated it as 'a considerably nicer constitution than expected.'
Yukichi FUKUZAWA, also wrote in the 'Jiji Shinpo' which he organized, that he was surprised that the constitution was promulgated and the national diet was established without any 'national conflict,' and was pleased with it.
But, he was also concerned that people were still not psychologically independent even though the promulgation of the constitution and public's participation in politics were realized, and stated as below:
In western countries, people confronted their government, and were enlightened, and rebelled against oppression, and built up arms, and a government which loses public favor could not control domestic and diplomatic affairs, and was gradually compelled to distribute ruling powers, and finally a national diet was established.
But, currently such people did not exist in Japan.'
Chomin NAKAE also expressed his anxiety to his student, Shusui KOTOKU as follows;
I wonder what kind of the constitution we were given?
People are intoxicated with just the name of the constitution even though they still don't know if it's actually a jewel or just a roof tile for us. People are foolish and crazy.
Why are they like that?'
Incidents after the establishment of the constitution
In 1891, the Crown Prince of the Russian Empire, Nicholas (later Tsar Nicholas II) was attacked by a guarding patrol officer, Sanzo TSUDA in Otsu City, Shiga Prefecture during his visit to Japan. This attack was so-called the Otsu Incident. The cabinet of that time pressured the court to apply a penal code for lese majesty to this case and demanded the death penalty of the accused. The chief justice of Daishin-in (the predecessor of the Supreme Court of Japan), Korekata KOJIMA did not apply the penal code for lese majesty, and ordered a justice who was in charge of this case to apply a penal code for premeditated murder attempt against ordinary people according to the law. Finally, the accused was sentenced to life imprisonment. Due to this incident, Japan was known as a constitutional/law-abiding country which realized that Law and judicial power were independent. But this incident also indicated a risk of independent judicial power. Giving that the chief justice could step into an argument, it could be said that independence of justices was still not secured in this case.
In 1930, the government concluded the London Naval Treaty, and then the opposition party, the Imperial Japanese Navy General Staff and right-wing groups condemned the treaty as a violation of the supreme command by the government, and the Prime Minister, Osachi HAMAGUCHI was attacked by a member of a right-wing group. It was so-called the incident of the violation of the supreme command. After this incident, constitutional government began to debilitate.
At that time, the emperor organ theory was commonly accepted as evidence of the emperor's sovereignty, but in 1935, a member of the House of Peers and lieutenant general, Takeo KIKUCHI criticized the treaty for going against the national polity. An advocator of the emperor organ theory, Tatsukichi MINOBE made a speech to refute Kikuchi's claim, but it could not stop the blame on him. And Minobe finally resigned from his posts in the House of Peers. Okada's cabinet issued Kokutai Meicho Seimei (Declaration of Clear Evidence of the National Polity) to avoid attacks from right-wing groups and the military, and banned Minobe's writings. This incident was so-called "the emperor organ theory incident." By the way, in the middle of the incident, the Emperor Showa said to his close aide, "the organ theory is no problem." Due to this incident, the definition of a modern constitutional nation became obscure, and Japan's constitutionalism based on the Constitution of the Empire of Japan broke down.
Shift to the Constitution of Japan
In August, 1945, the Japanese government accepted the Potsdam Declaration, and World War II was over. According to the sentences of the declaration, 'the Japanese government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people' and 'Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established,' the General Headquarters of the Allied Powers (GHQ/SCAP) led by Douglas MACARTHUR demanded modification of the Constitution of the Empire of Japan. The government set up the Constitutional Problems Investigation Committee under the cabinet (chaired by the Minister of State, Joji MATSUMOTO, the Matsumoto Committee) to investigate and study constitutions. The government discussed issues in a cabinet meeting by reference to draft proposals prepared by the MATSUMOTO Committee, and submitted 'the Outline of Constitution Revision [MATAUMOTO draft]' to GHQ on February 8, 1946. On the other hand, debate on constitutional amendment grew warm also among common people, and they published various revision proposals.
Prior to the government's official submission of 'the Matsumoto draft,' Mainichi Newspaper had a scoop on 'the Matsumoto committee draft' on February 1. But, the draft that appeared in the newspaper was a draft written by a member of the Matsumoto committee, Toshiyoshi MIYAZAWA, and was different from the official Matsumoto draft. Therefore, the government had to issue a statement that the published draft was different from the official one. But GHQ misunderstood that the published draft was the official Matsumoto committee draft. GHQ rejected the published 'Matsumoto committee draft' and decided to prepare another draft proposal by themselves and submitted it to the Japanese government. GHQ prepared the so-called 'MacArthur draft' from February 3 to 13.
On February 13, GHQ handed 'the MacArthur draft' to the Minister of State, Joji MATSUMOTO and the Prime Minister, Shigeru YOSHIDA in reply to 'the Matsumoto draft' submitted on February 8. The government pleaded with GHQ to reconsider 'the Matsumoto draft,' but GHQ refused it.
Then, the government had to enter discussions again based on 'the MacArthur draft,' and completed 'the Japanese Government draft [Draft on March 2].'
The government announced to the public 'the Outline of the Draft for a Revised [Draft on March 6]' on March 6, which was completed after deliberations with GHQ.
People extensively discussed on the Draft on March 6, and the general election of members of the House of Representatives was held on April 10 (But people's actual greatest concern was their lifestyle stability, not the constitution.)
On April 17, the election was over, and the government revised the draft into article style and announced it as 'the Draft for the Revised Constitution.'
The Privy Council began debating on the constitution revision proposal on April 22, and adopted it on June 8. On June 20, the government submitted the constitution revision proposal following procedures for amending the constitution defined in Article 73 of the Constitution of the Empire of Japan. The House of Representatives began debating on the constitution revision proposal on June 25, and adopted it on August 24 after adding some modifications. Subsequently, the House of Peers began debating on August 26, and adopted it on October 6 after adding further modifications. On October 7, the House of Representatives approved the modifications added by the House of Peers, all the debates at the Imperial Diet were completed. The constitution revision proposal was consulted with the Privy Council again, and finally adopted on October 29. The amended Constitution of the Empire of Japan was promulgated as the Constitution of Japan when it received the emperor's assent on November 3, and came into effect on May 3, 1947.
Contradiction with the theory of limitation of constitutional amendment
As mentioned above, the constitutional amendment was conducted following Article 73 of the Constitution of the Empire of Japan. According to Article 73, the constitutional amendment shall be proposed and ratified by the emperor, and actually in the edict of the constitutional amendment, the emperor stated 'I …sanction the amendments of the Imperial Japanese Constitution …' (Constitution enacted by the emperor). This emperor's statement became controversial, because some theories pointed out that it contradicted the phase 'the Japanese people... do firmly establish this Constitution' in the preamble of the Constitution of Japan (Constitution enacted by the people).
One theory of studies of the constitution insisted that constitutional amendments which aim to modify the basic principles (national polity) of the constitution was legally impossible (the theory of limitation of constitutional amendment). This theory insisted that 'the right to amend' the constitution could be conducted only by people who had 'the constituent power' (the right to establish the constitution), and changing the location of the right to amend the constitution (that is the sovereign) by amending was prohibited by law.
To resolve the contradiction, 'the August Revolution Theory' was crated. So it meant that the constitutional amendment, which had been conducted following procedures defined by the Meiji Constitution (Constitution of the Empire of Japan), was merely expedient and perfunctory, and practically speaking, the Constitution of Japan was 'newly established,' not the amended version, and it had 'no substantial' legal continuity with the Constitution of the Empire of Japan.
But, according to the theory of limitation of constitutional amendment, the Constitution of the Empire of Japan did not define any limitations of constitutional amendment. Therefore, the theory justified the Constitution of Japan because it was created by the amendment conducted according to the Article 73 of the Constitution of the Empire of Japan, and insisted that it had legal continuity.
The 'theory of limitation of constitutional amendment' was clearly stated in some constitutions of other countries.
The Constitution of Japan was a constitution enacted by the emperor based on factors of constitutionalism and the national polity. The assembly system was established based on constitutionalism, and assembly's authority was limited according to the national polity. After the amendment, the constitution was criticized as being based on pretended constitutionalism and a doctrine of royal absolutism by constitutional scholars.
Factors of constitutionalism
The following are factors of constitutionalism.
Freedom of speech
Rights of subjects such as freedom of speech and association, secrecy of private letters were secured within the limits of the law (Chapter 2).
These rights were thought to be 'the right given by emperor's favor.'
According to the Constitution of Japan, these rights were defined as 'basic human rights' which could never be violated.
Restrictions on rights were based on the idea 'Reservation of the law' which indicated 'when the law is defined so' and 'within the limits of the law,' or the idea 'public peace and order.'
It was a difference from the Constitution of Japan which defined that basic human rights were limited only for the sake of 'public welfare.'
However, limitations for the sake of the 'public welfare' defined by the current constitution could be also a kind of limitation of human rights, some people opposed to the common idea instructed at schools, 'the former constitution was too restrictive, but the current constitution was unlimited' and they thought there was not radical difference between two constitutions (but they approved the relative difference). In their views, the most important significance of the current constitution was that 'human rights were clearly stated in the constitution which was the superior law,' and contents of the constitution were thought to be highly advanced at the time.
The Imperial Diet shall be established, and the House of Representatives shall be composed of members elected by the people (Chapter 3).
The Imperial Diet had only the right to approve establishment and amendment of laws, so articles related to the rights and duties of the subjects could not be amended without the consent of the Imperial Diet. The Imperial Diet also had the right to submit law bills and to approve budgets, and the power of controlling administration using budgetary discussions.
And the Imperial Diet was also given limited rights to report and make proposals to the emperor (They could participate in politics using the right to make proposal to the emperor even though they needed to obtain approval of the emperor and countersignature of Minister of State when making a final decision.)
Ministerial Responsibility System/Ministerial Advice System
The constitution provided ministers with the right to advise to the emperor when he exerted his prerogative, and ministers required to be responsible for their advice (Ministerial Responsibility System or Ministerial Advice System) (Chapter 4).
Rules for a cabinet and a prime minister were defined not in the constitution but in Official Cabinet Law. A prime minister was the head of ministers, but his status was equal as one of the other ministers. The prime minister had no right to instruct, supervise, appoint, and dismiss respective ministers of state, so his authority defined under the constitution was not strong. However, since prime ministers had the rights to petition approval of the emperor, to announce the emperor's approval, and to petition appointment of ministers to the emperor, they could exercise strong powers.
Independence of judicial powers
The constitution secured the independence of judicial powers.
Under the constitution, courts were a judicature delegated by the emperor, and it meant that courts could exercise independent powers. Japanese judicature was modeled after the European judicial system, and administrative lawsuit was not under jurisdiction of courts of law, but administrative courts. This idea was based on Hirobumi ITO's "Kenpogige" (Commentaries on the constitution) which insisted that administrative powers should be independent from judicial powers.
Basic ideas of national polity
The following are factors of national polity.
Unbroken Imperial line
The Constitution of the Empire of Japan emphasized that consistency of the Imperial Family was an evidence for their orthodoxy. In the "Imperial instruction [preamble] of the Constitution of the Empire of Japan," there is the following sentence.
Due to great virtue of our ancestors, the Imperial throne was succeeded by only one unbroken family, and now I succeeded to the throne….
Therefore, the sentence 'the Empire of Japan is ruled by emperors from the unbroken Imperial Family' was stated in the Article 1 of the Constitution. It was the first case that such poetic words as 'the unbroken Imperial Family' were used in a modern political document. The phrase of 'the unbroken Imperial line' became an essence of public ideology. The phrase was widely used for official announcements of schools and barracks and spread.
Person who had all rights of sovereignty
The emperor inherited 'prerogative of sovereignty' following Imperial ancestors' will represented by the sentence, 'Promises which lasted forever like heaven and earth' in the Imperial instruction, and he acquired a status of a head of state and became a person who held all rights of sovereignty. This emperor's sovereignty system was called the national polity.
There were roughly two kinds of national policy theories which justified the emperor's sovereignty. One was a national policy theory advocated by Kowashi INOUE who was one of the editors of the constitution draft ("Shirasu" national polity theory), and another was advocated by Chogyu TAKAYAMA and Tetsujiro INOUE later (National polity based on family orders). The national polity theory of Kowashi INOUE insisted that the emperor separated private and public matters and fairly ruled the country according to the mythology of Kojiki (The Records of Ancient Matters) (Shirasu in Japanese), and the emperor's sovereignty was completely different from private controls by local clans and people (Ushihaku in Japanese) (according to Inoue's writing 'Kogen'). On the contrary, the national polity theory of Takayama was based on pervasive public sense which put priority on 'family,' and insisted that 'the Imperial Family was a head family and subjects belonged to branch families,' the emperor regarded as a head of the family (= 'Imperial members and subjects belonged to the same family lime') had a right to rule Japan (Takayama's 'Our national polity and new territory,' "the sun" No. 22, volume 3). Just after the promulgation of the constitution, the national polity theory of Kowashi INOUE was a key principle of the constitution. But, after the Sino-Japanese War, the national polity theory of Takayama gradually became popular, and after the Emperor Organ Theory Incident, 'Japan was one large family where all the Imperial members and subjects belonged' ('Cardinal principles of the National Entity of Japan' by the Ministry of Education) became an official doctrine.
The emperor held a wide range of authority called the "Emperor's prerogative."
The emperor could exercise the right to issue ordinances by his own order (Article 9), the right to conclude treaties (Article 13) without any interferenceof the government, and these rights were especially unique to Japan. In principle, only the emperor had authority, but in fact, the emperor basically did not exercise powers by himself, but a cabinet (prime minister) made decisions with the emperor's consent.
Only one legislative organ
The emperor was thought to be the only legislative organ, so the Imperial Diet was defined just as a legislative support organ, not a legislative organ.
Since the diet was a legislative support organ, it had to obtain the emperor's sanction and countersignature of Minister of State for establishment of new law. Given that many of the other monarchial constitutions of the same period defined that a monarch and a government should share legislative power, it could be said that the Japanese constitution was a rare case. But, in fact, the emperor and the administrative department had never used their veto to reject law bills adopted by the Imperial Diet, so practically the Imperial Diet was the only one legislative organ. But for special cases, the emperor reserved practical legislative powers such as issuance of emergency edicts and independent orders. And also, the Imperial Diet had no initiative of constitutional amendment.
Furthermore, the House of Peers, which consisted of non-elected-members, was established as a house of the Imperial Diet, and it had almost the same powers as the House of Representatives.
The Privy Council was also established as a non-parliamentary organ to interfere the cabinet. In addition, many factors, which were not defined by law, such as elder statesmen, senior vassal conferences, and Imperial conferences were established.
The supreme command should be independent, and the army and navy had no responsibility for the assembly and the government.
The supreme command was thought to belong to military organs (the Staff Headquarters of Army and the Imperial Navy General Staff) by tradition, and not to be under civilian control. The military organs were thought to have the right to make comments on military affairs to the emperor with full responsibility of the results under their supreme command, and this right, as well as the Military Ministers to be Active-Duty Officers Law, was essential for the military to keep their authority. Later during the Showa period, the military insisted that they needed to follow only a direct order from the emperor, and did not have to follow the government because they had the supreme command, and took advantage of the supreme command to act ignoring the government to show its influence such as raising the Manchurian Incident.
Imperial Family Autonomy System
Japan introduced the Imperial Family autonomy system, and important rules related to the Imperial Family such as the Imperial House Law were independent from the constitution, and the cabinet could not handle issues of the Imperial Family.
Basically, the Imperial side (the Imperial Family, the Imperial Household Ministry, and the Office of the Minister of the Palace) and the administrative side (the government) could not interfere each other. However, practically, the Minister of the Palace had strong political powers, so he could interfere in election of a prime minister beyond a border between the Imperial side and the administrative side.
The Constitution of the Empire of Japan consists of 76 articles in seven chapters.
Its contents are as follows;
Only aticles with existing items are listed. Please refer to the Wikisource for the entire text.
Chapter 1. The Emperor
Article 1. The emperor's sovereignty
Article 2. Imperial succession
Article 4. Prerogative of Sovereignty
Article 10. Prerogative to organize branches of the administration, and to appoint and dismiss all civil and military officers
Article 11. Supreme command of the Army and Navy
Article 12. Prerogative to organize the Army and Navy
Article 13. Prerogative to control diplomatic affairs
Article 14. Prerogative to declare a state of siege
Chapter 2. Rights and Duties of Subjects
Article 19. Right to be appointed to civil or military or any other public offices equally
Article 20. Duty of military service
Article 22. Freedom of movement
Article 29. Freedom of speech, assembly and association
Article 31. Exercises of powers in cases of a national emergency
Chapter 3. The Imperial Diet
Article 34. The House of Peers
Chapter 4. The Ministers of State and the Privy Council
Chapter 5. The Judicature
Chapter 6. Finance
Chapter 7. Supplementary Rules
Article 73. Provisions of the Constitution
Political condition before and after drafting
After the Meiji Restoration, Japan needed to enact a modern constitution so that they could reform the unequal treaty and build a 50/50 relationship with the allied western powers. However, at that time, no other countries except western countries could adopt constitutional government.
Many common people published their own ideas for a constitution, but Hirobumi ITO who was a leading editor of the draft mentioned about them as follows;
"They blindly believed only writings of ultra-liberal in Britain, America, and France, and their stream almost swept the nation away." There was a reason for Ito's anxiety. The Ottoman Empire (Turkey) enacted the first constitution in 1876 and introduced constitutional government, but only two years later, the constitution was abolished and the government was dissolved. Even in Japan, some conservative activists aimed at an absolute monarchy. Ito aimed at making a constitution which was suitable for Japan's actual condition. Until then, Japan had been divided into many domains due to the feudal system characteristic of the shogunate, and had not been regarded as a unitary nation of united people. Therefore, the new constitution needed to make a power balance between the emperor and the diet by defining the emperor as the symbol to unite people and giving the powers to the diet.
Drafting of a constitution began on around June 4, 1887, at a villa of Hirobumi ITO in Natsushima (now Natsushima-cho, Yokosuka City, Kanagawa Prefecture). Since Ito's villa was small, a hotel-restaurant 'Azuma-ya' (now Kanazawa-ku Ward, Yokohama City, Kanagawa Prefecture) was used as an office at beginning. But on August 6, while Ito and others went to Yokohama for leisure, someone broke in Azuma-ya and stole a bag containing the draft papers. So, after that, Ito's villa was used as a place for drafting. The bag was found later in a nearby field, and the draft papers were still in the bag.
At Azuma-ya, a monument was placed in 1935 in commemoration of the place associated with the constitution, and on the monument, a phrase, 'Place for drafting the constitution' was inscribed using the writing of Kentaro KANEKO who was a member of the drafting. After that, Azuma-ya was closed down, and the monument was temporarily moved to Nojima-koen Park (in the same district), but now the monument has been placed at Suzaki-hiroba Field close to the former site of Azuma-ya.
Ito's villa which had located in Natsushima was moved to Odawara, and burned down during the Great Kanto Earthquake. A monument commemorating the place of drafting the Meiji Constitution was built in the former site of the villa in Natsuhima. Another villa which Ito had built later still remains in Nojima (Ito Hirobumi Museum).
Relationship with the current constitution
The Constitution of the Empire of Japan was fully revised by completing the procedures for amending the constitution defined in the Article 73, and newly called the Constitution of Japan. The Constitution of Japan was promulgated on November 3, 1946, and came into effect on May 3, 1947.
Laws and ordinances which had been established under the Constitution of the Empire of Japan lost validity if they 'went against the provisions' according to the Article 98 of the Constitution of Japan. Conversely, laws and ordinances which conformed to the provisions could be in effect even after the enforcement of the Constitution of Japan. In cases that they were in effect, laws were treated as a law and diet's orders as a cabinet order, and ministerial orders as a ministerial order. As for Imperial edicts, if they were related to laws, they were abolished after approving their temporary effect, and if they were not related to laws, they were treated as a government ordinance. The Potsdam Orders such as the Price Control Ordinance was treated as a law or a cabinet order.