Foreign Relations of the United States, 1946, The Far East, Volume VIII

894.011/7–2946

Memorandum by the State Department Member of the State–War–Navy Coordinating Committee (Hilldring) to the Committee

[Washington, July 26, 1946.]

Subject: Communication from Chairman of Far Eastern Commission for transmittal to the Supreme Commander for the Allied Powers.

The Far Eastern Commission, acting under paragraph VI of its Terms of Reference, which provides that the Commission “may make such arrangements through the chairman as may be practicable for consultation with the Supreme Commander for the Allied Powers”, requested its chairman on July 25, 1946 to consult with the Supreme Commander for the Allied Powers on the matter referred to in the enclosure.

It is requested that the attached enclosure be forwarded to the Joint Chiefs of Staff for transmission to the Supreme Commander for the Allied Powers.⁴⁸

J. H. Hilldring

[Annex]

Draft Communication for General of the Army Douglas MacArthur

Consultation With the Supreme Commander for the Allied Powers on the Text of the Constitution

The Far Eastern Commission requests the Chairman of the Commission to arrange for consultation between the Commission and the Supreme Commander for the Allied Powers regarding the fulfillment by the draft of the new Japanese constitution of the principles contained in the Potsdam Declaration and in the Commission’s policy decision concerning the constitution, FEC 031/19.⁴⁹ To facilitate this consultation the Commission requests the Chairman to convey to the Supreme Commander the substance of the following communication and to state to him that the Commission would greatly appreciate his views on the questions raised therein.

1. The Far Eastern Commission is making a preliminary study of the draft of the new Japanese constitution (MI 003/1), which is now before the Diet, to determine whether the present draft satisfies the criteria established by the Commission in its statement of policy on basic principles and by the Potsdam Declaration and other controlling documents. Any comments which the Supreme Commander may wish to make on the points raised in this preliminary study would be most helpful to the Commission’s work.

2. In the course of this preliminary study doubts have arisen as to whether in certain respects the draft constitution satisfies the criteria established by the Commission in its statement of policy on basic principles (FEC 031/19). The following examples may be cited:

(a) Cabinet. FEC 031/19 provides that a majority of the Ministers of State, including the Prime Minister, shall be selected from the Diet. The draft constitution does not now provide for this principle of selection.

(b) Suffrage. FEC 031/19 provides that the Japanese Government be “based upon universal adult suffrage.” It appears doubtful whether the draft constitution makes adequate provision in this respect. While Article XXXIX states that “both Houses shall consist of elected members, representative of all the people”, it is a question whether this provision is sufficiently specific to fulfill the requirement of FEC 031/19. Furthermore, it might be pointed out that, though it is provided in Article XL of the draft constitution that in respect of the qualifications of electors for both Houses there should be no discrimination because of race, creed, sex, social status or family origin, the door is apparently left open for discrimination on such grounds as age, education, property, or income.

(c) Sovereignty. FEC 031/19 provides that “the Japanese Constitution should recognize that sovereign power resides in the people.” The Commission is considering whether the draft constitution fulfills this requirement and has been confronted with a number of opposing views. The draft constitution provides in the Preamble: “We, the Japanese people …⁵⁰ do proclaim the sovereignty of the people’s will.” Aside from the question as to whether this clause adequately meets the provision of FEC 031/19, legal opinion has been presented to the Commission to the effect that a preamble is merely a declaratory and explanatory statement, the function of which is not to confer power and whose provisions are not a source of obligation. The United States Supreme Court has so held with respect to the Preamble of the United States Constitution. The legal position in Japan is more obscure, as it is impossible to draw a satisfactory conclusion on the basis of the Preamble of the Meiji Constitution because it has had the force of an Imperial edict.

Article I also contains a reference to sovereignty. It reads: “The Emperor shall be the symbol of the state and of the unity of the people, deriving his position from the sovereign will of the people.” It is doubtful whether this article, which deals with the status of the Emperor, adequately fulfills the provisions in the basic principles regarding sovereignty.

To avoid all doubts on both points, it has been suggested that it should be clearly stated in the body of the constitution that “sovereign power resides in the people.” The Commission would value the Supreme Commander’s view.

3. The further question arises as to whether the draft constitution accords with the Potsdam Declaration.

(a) The draft constitution leaves several important matters to be enacted in subsequent laws, a situation which makes it difficult to determine the full implication of the articles concerned. Examples are the Imperial House Law (Articles II and V), the composition and methods of election of the two Houses (Chapter IV), and the joint committees of both Houses (Articles LVI, LVII, LXIII). The Commission realizes that many of these matters may properly be left for detailed determination by subsequent legislation. It queries, however, whether it would not better accord with the Potsdam Declaration to include in the constitution the basic provisions governing some of these matters, such as the composition of the House of Councilors.

(b) The Commission would raise the query whether Article LIV of the draft constitution should not set out clearly the grounds on which a member of the Diet may be expelled, in order to prevent this article from being used to exclude representatives of minority groups.

(c) In regard to Article LXIII, the Commission queries whether the selection of a Prime Minister should not be a matter for the House of Representatives alone, rather than for both Houses. This procedure would accord with practice in other democratic governments where the executive is responsible to the legislature, and would seem to follow naturally from Article LXV.

48. The Joint Chiefs of Staff on July 30 sent the communication to SCAP.
49. July 2; printed as JCS directive serial 54, July 6, to SCAP in Political Reorientation of Japan, p. 661.
50. Omission indicated in the original.