894.011/7–1246
The Chairman of the Far Eastern Commission
(McCoy) to the Assistant Secretary of State (Hilldring)
confidential
Washington, 12 July 1946.
Dear General Hilldring: At the 19th meeting of
the Far Eastern Commission on July 11 the question of the authority of
the Far Eastern Commission to approve a new Japanese Constitution was
raised again. The matter has been under consideration by the Commission
for some time in general terms, but was brought specifically to a head
at yesterday’s meeting in such a way as to demand prompt resolution. I
would therefore appreciate it if you could arrange for me to have at an
early date a statement of United States policy on the subject of the
authority of the Far Eastern Commission to approve a new Japanese
Constitution for the guidance of the American delegation on the
Commission.
As a possible position for the United States in this connection I am
enclosing a draft41 which
I hope you may find helpful in giving me the necessary guidance. The
draft, entitled “United States Policy in Regard to the Authority of the
Far Eastern Commission to Approve a New Japanese Constitution” is one
which seems to me and my advisers
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adequately meets the issue, and which I think also
stands a good chance of being supported by the other governments
represented on the Commission.
For your information the following immediate background is pertinent to
the issue. At the Commission meeting on July 11 the enclosed paper,
FEC–031/23, “Provisions for the
Review of a New Japanese Constitution”,42 was up for consideration. Of the 11
representatives on the Commission, 10 were prepared to accept this
paper. The Soviet representative alone dissented and insisted that the
paper should include an additional paragraph on the subject of the
authority of the Commission to approve the new Constitution. Such a
second paragraph had been a part of the paper, but had been deleted
prior to consideration of the paper by the Commission because it had
been impossible to agree on its language.
The deleted second paragraph read as follows:
“The new constitution, unless previously disapproved by the Far
Eastern Commission, will in due season after promulgation become
the legal successor of the present constitution without awaiting
final review by the Diet and the Far Eastern Commission in terms
of the foregoing paragraph.”
This paragraph had been accepted in the Steering
Committee, again with 10 representatives concurring, but with the Soviet
representative insisting that its language be changed to read as
follows:
“The new constitution, unless
previously
disapproved
after approval by the Far Eastern
Commission, will in due season after promulgation become the
legal successor of the present constitution without awaiting
final review by the Diet and the Far Eastern Commission in terms
of the foregoing paragraph.”
It was the hope of the Steering Committee, in deleting
this controversial second paragraph, that the Commission could approve
the review principle embodied in the first paragraph.
The Soviet statement at the Commission meeting on this subject is
enclosed for your information.43 Your particular attention is invited to the 5th paragraph
of the Soviet statement, in which the position is taken that a new
Japanese Constitution can go into effect only after it has positively
been approved by the Far Eastern Commission and after a consequent
United States directive to this effect has been issued to the Supreme
Commander.
Very sincerely yours,
[Page 269]
[Enclosure l]
Draft Statement of Policy for the United States
Representative on the Far Eastern Commission44
United States Policy in Regard to
the Authority of the Far Eastern Commission To Approve a New
Japanese Constitution
1. The Japanese Government and people are competent to adopt a new
Constitution provided it is enacted in accordance with Japanese
constitutional requirements and is consistent with the provisions of
the Terms of Surrender, including the Potsdam Declaration and of the
policy decisions of the Far Eastern Commission.
The Potsdam Declaration contains the following statements which
describe certain features which must characterize a new Japanese
Constitution: (1) “The Japanese Government shall remove all
obstacles to the revival and strengthening of democratic tendencies
among the Japanese people. Freedom of speech, of religion and of
thought, as well as respect for the fundamental rights, shall be
established”; (2) “The occupying forces of the Allies shall be
withdrawn from Japan as soon as these objectives have been
accomplished and there has been established, in accordance with the
freely expressed will of the Japanese people a peacefully inclined
and responsible Government”.
2. The Far Eastern Commission has the function “to formulate the
policies, principles, and standards in conformity with which the
fulfillment by Japan of its obligations under the Terms of Surrender
may be accomplished”.
The Far Eastern Commission, therefore, has the authority to determine
the principles and standards in accordance with which the new
Japanese Constitution should fulfill the provisions of the Potsdam
Declaration.
The Far Eastern Commission determined these principles and standards
by a policy decision, FEC 031/19,
adopted on July 2, 1946.
3. The Far Eastern Commission has the right to pass upon a new
Constitution to determine whether it is consistent with the
provisions of the Potsdam Declaration and of pertinent policy
decisions of the Far Eastern Commission.
The Secretary of State, on March 12, 1946, stated that “before the
Constitution becomes constitutionally effective it will in some way
or other come before the Far Eastern Commission”. The United States
representative on the Far Eastern Commission joined with the other
representatives on the Commission in voting for the following
[Page 270]
provision: “The Commission
desires that the Supreme Commander for the Allied Powers make clear
to the Japanese Government that the Far Eastern Commission must be
given an opportunity to pass upon the final draft of the
Constitution to determine whether it is consistent with the Potsdam
Declaration and other controlling documents before it is finally
approved by the Diet and becomes legally valid.”
4. The competence of the Far Eastern Commission “to pass upon the
final draft of the Constitution” is limited to determining whether
the Constitution is consistent with the Potsdam Declaration and
other controlling documents, including the policy decisions of the
Commission. The Commission appears to have been given no authority
to “pass upon” the draft Constitution in any other respect or for
any other purpose.
5. The Terms of Reference of the Far Eastern Commission and of the
Allied Council contain no provision, either expressed or implied,
that a new Japanese Constitution requires the approval of the Far
Eastern Commission.
The Terms of Reference of the Far Eastern Commission state (III, 3):
“The U. S. Government may issue interim directives to the
Supreme Commander …45 provided that any
directives dealing with fundamental changes in the Japanese
constitutional structure … will be issued only following
consultation and following the attainment of agreement in
the Far Eastern Commission.”
This requirement bars the United States Government from issuing an
interim directive dealing with fundamental changes in the Japanese
constitutional structure, and provides that any directive dealing
with the subject must follow the attainment of agreement in the Far
Eastern Commission. The recent directive to SCAP containing the “Basic Principles for a New
Japanese Constitution” (FEC 031/19),
a policy decision adopted by the Far Eastern Commission on July 2,
1946, was sent in accordance with this section of the Terms of
Reference. There is nothing in this section, however, which requires
that a directive must be issued to validate an action of the
Japanese Government, such as the adoption of a new Constitution,
which is within the competence of that Government provided the
action is not inconsistent with existing requirements of the Allied
Powers.
The Terms of Reference of the Allied Council state (section 6):
“If, regarding the implementation of policy decisions of the
Far Eastern Commission on questions concerning … fundamental
changes in the Japanese constitutional structure … a member
of the Council disagrees with the Supreme Commander (or his
Deputy),
[Page 271]
the
Supreme Commander will withhold the issuance of orders on
these questions pending agreement thereon in the Far Eastern
Commission”.
This requirement is applicable solely to instances when the Far
Eastern Commission has issued a policy decision concerning a
fundamental change in the Japanese constitutional structure. It does
not require the Far Eastern Commission to issue any policy decision
on the subject. It therefore does not stipulate or imply that a new
Japanese Constitution must receive the approval of the Far Eastern
Commission.
6. Since the Japanese Government and people are competent to adopt a
new Constitution provided it is not inconsistent with the provisions
prescribed by the Allied Powers, a draft Constitution will in due
course become effective, unless the Far Eastern Commission finds
that it is not consistent with the Potsdam Declaration and other
requirements. A formal approval of the Constitution by the Far
Eastern Commission in the sense of acceptance, amendment or
rejection by the Commission of each section or paragraph would
violate the intention of the Potsdam Declaration that the new
government in Japan must be established “in accordance with the
freely expressed will of the Japanese people”.
7. When the Far Eastern Commission passes on the draft Japanese
Constitution, the Commission may conclude that it is not consistent
with the Potsdam Declaration and other requirements and may insist
on adequate changes in the draft. If the Commission does not find
that the draft is inconsistent with these requirements, the Draft
Constitution, in accordance with the competence of the Japanese
Government and people to adopt a new Constitution, and without
formal action by the Commission, will become effective after it has
fulfilled Japanese constitutional provision.
[Enclosure 2]
FEC–031/23
Presented to the Far Eastern Commission, July 11,
1946
Provisions for the Review of a New
Japanese Constitution
In order that the Japanese people may have an opportunity, after the
new constitution goes into effect, to reconsider it in the light of
the experience of its working, and in order that the Far Eastern
Commission may satisfy itself that the constitution fulfills the
terms of the Potsdam Declaration and other controlling documents,
the Commission decides as a matter of policy that, not sooner than
one year and not later than two years after it goes into effect, the
situation with respect to the new constitution should be reviewed by
the Diet. Without prejudice to the continuing jurisdiction of the
Far Eastern
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Commission at
any time, the Commission shall also review the constitution within
this same period. The Far Eastern Commission, in determining whether
the Japanese Constitution is an expression of the free will of the
Japanese people, may require a referendum or some other appropriate
procedure for ascertaining Japanese opinion with respect to the
Constitution.
[Enclosure 3]
Soviet Statement, July 11, 1946, on the
Authority of the Far Eastern Commission To Approve a New
Japanese Constitution
The paper FEC–031/23, which is
submitted for our consideration today, in its original form
contained two paragraphs and out of these the first paragraph
covered the provisions for the review of a new Japanese constitution
while the second one dealt with the provisions for its going into
effect. Now we are offered to adopt only the first paragraph of that
document concerning the provisions for the review of the
constitution.
I wish to state here that the Soviet Delegation, taking into account
some of the considerations which have been expressed here, is
prepared to concede with respect to the last sentence of the first
paragraph and accept the wording which was suggested by the U.S.
Delegation. But I am unable to consent upon the exclusion from that
document of its second paragraph. It is my view that the question of
provisions for the constitution’s going into effect cannot be
divorced from the question of reviewing it, and logically it should
inevitably precede it. There is not much sense in speaking of how
and when and who is going to review the constitution unless we come
to a preliminary agreement on how and when it goes into effect.
At the last meeting of the Commission the Soviet Delegation proposed
to make an amendment in the original second paragraph to the effect
that the new Japanese constitution prior to its going into effect
should come for approval by the Far Eastern Commission.
This suggestion of the Soviet Delegation was contended by some of the
members of the Far Eastern Commission. The Soviet Delegation
considers it necessary to give a complete clarity to this question
as it is of fundamental importance and upon its solution it will be
dependent whether the Far Eastern Commission intends to live up to
the spirit and letter of the Moscow decisions of the Three Ministers
in respect to the scope of its jurisdiction.
In the Soviet Government’s view it is doubtless that such question as
the new Japanese constitution’s going into effect does fall under
the provisions of the Article 3, Part III of the Moscow decisions,
which
[Page 273]
provides that
substantial changes in the Japanese constitutional structure are
subject to agreement within the Far Eastern Commission. This
question is one of those upon which the U. S. Government should
necessarily issue a directive to the Supreme Commander after an
appropriate consultation with the Far Eastern Commission and after
reaching in the Commission an agreement on acceptability of the
Japanese constitution from the viewpoint of application of the
principles of the Potsdam Declaration. After this only, the Japanese
constitution approved as complying with the principles of the
Potsdam Declaration can go into effect. A different approach to the
question would be contrary to the Moscow decision regarding the
terms of competence of the Far Eastern Commission.
In stating this point of view and bearing in mind the extreme
importance of this question, the Soviet Delegation invites all the
representatives of the member-nations of the Far Eastern Commission
to define their position on this question and state formally their
viewpoint regarding the Far Eastern Commission’s prerogative to
approve, in accordance with the Moscow decisions of the Three
Ministers, the new Japanese constitution as the necessary
prerequisite of the latter’s going into effect.
