“The Constitution of Japan Is Not a Constitution”—The Nature of the Basic Law for Occupation Policy and the Limits of University of Tokyo Constitutional Scholarship

2019-05-30
Having had their mentors hand over their chairs in constitutional law to them, they would never say anything like “The Constitution of Japan is not a constitution.”
That is why the opinions of today’s constitutional scholars, particularly those who come out of the University of Tokyo tradition, cannot possibly serve as a useful reference.
The following book is essential reading not only for every Japanese citizen but also for people throughout the world.
Facts of which those who merely subscribe to the Asahi Shimbun and watch NHK were entirely unaware…
It is packed with facts they were never told.
It is one of the finest books in postwar Japan.
Shoichi Watanabe was from Yamagata Prefecture, which borders Miyagi Prefecture, where I was born.
The people of Yamagata must forever proclaim with pride, to Japan and the world, that they share their home prefecture with him, the greatest intellectual in postwar Japan and a true treasure of Japan.
The people of Iwate should forever take pride in having produced Shohei Ohtani and Kenji Miyazawa.
Miyagi Prefecture should forever take pride in its tradition of First High School = the University of Tokyo, Second High School = Tohoku University,
in faithfully carrying on the superb governance of Date Masamune, an exceptionally distinguished ruler,
and in having built Sendai into a city of learning and a city of trees.
The other day, too, two salaried employees were talking in a restroom at Takashimaya in Kyoto…
Sendai was the best…
I am even thinking of living there after retirement…
And it must also forever take pride in having given birth to “The Turntable of Civilization.”
Chapter 5…
The New Constitution That Was a “Basic Law for Occupation Policy”
“A Constitution Cannot Be Created in an Era Without Sovereignty”
If the greatest negative factor characterizing the postwar era was occupation policy, particularly the Purge, occupied Japan, order, then what is generally regarded as a positive factor would be the new constitution, the Constitution of Japan.
The new constitution has been treated as a symbol of Japan’s new beginning and of peace.
Article 9 in particular has been regarded as sacred, and the current situation is that it has been elevated to the level of a religion.
The Allied occupation of Japan began with the acceptance of the Potsdam Declaration.
In accepting the Potsdam Declaration, Japan asked the Allies whether the national polity would be preserved.
In other words, the question was what would happen to His Majesty the Emperor, and the Allied side replied at that time that the Emperor would be “subject to” the Supreme Commander for the Allied Powers.
Translated literally, this means “the Emperor shall be subordinate.”
Upon hearing this, Japan interpreted it to mean that “if he is to be subordinate, the institution will not be abolished,” and accepted the Potsdam Declaration.
The decision to accept the Potsdam Declaration was made under “the Emperor’s prerogative in foreign affairs,” stipulated in Article 13 of the Meiji Constitution: “The Emperor declares war, makes peace, and concludes treaties.”
However, once Japan was occupied, the Emperor was “subject to” the occupation forces and was thus placed under their authority.
Consequently, Japan under occupation naturally had no sovereignty.
To give the clearest example, although a constitution is said to arise from the exercise of sovereignty, executions were carried out within Japan without being based on Japan’s Penal Code even after the new constitution was promulgated.
This was the Tokyo Trial.
Nothing demonstrates more clearly that Japan’s new constitution did not arise from the exercise of sovereignty.
There cannot be another constitution above the constitution.
In other words, we must begin by understanding that the new constitution is not an ordinary constitution.
Japanese constitutional scholars say all sorts of things, but I believe the most reasonable way of thinking about the constitution is to ask, “How could a constitution, which is an exercise of sovereignty, possibly be created in an era without sovereignty?”
Then what exactly is the Constitution of Japan?
The occupation forces had planned to impose direct military rule, but through the efforts of Foreign Minister Mamoru Shigemitsu, the arrangement became one of indirect rule.
The structure was one in which the occupation forces stood above the Japanese government and governed Japan through that government.
Within this structure, the Constitution of Japan was a “Basic Law for Occupation Policy” that enabled the occupation forces to rule Japan as they saw fit.
In response, today’s scholars who defend the constitution say: Does not the Constitution of Japan also carry His Majesty the Emperor’s preface, the Imperial Rescript, and was it not supposedly debated in the legislature and thoroughly examined by the Privy Council?
However, it is better not to lend an ear to what constitutional scholars who teach constitutional law at universities have to say.
This is because the constitution is something that already exists, and teaching constitutional law means earning one’s living by interpreting the existing constitution.
If they were to say that this constitution “is not a constitution,” they would no longer be able to earn their living.
The ringleaders who declared that the Constitution of Japan, which is not a constitution, was a constitution were Toshiyoshi Miyazawa and Kisaburo Yokota, professors in the Faculty of Law at the University of Tokyo during the occupation.
Looking back now, they can be described as constitutional scholars who betrayed their country.
Having had their mentors hand over their chairs in constitutional law to them, their disciples would never say anything like “The Constitution of Japan is not a constitution.”
That is why the opinions of today’s constitutional scholars, particularly those who come out of the University of Tokyo tradition, cannot possibly serve as a useful reference.
This article will continue.