On July 30, 1946 the Chairman of the Far Eastern Commission sent a
consultative message to the Supreme Commander for the Allied Powers
regarding points raised by members of the Far Eastern Commission in
their preliminary study of the draft of the new Japanese Constitution.
The Supreme Commander for the Allied Powers on July 26, 1946 made
certain comments on the subject71 which were
communicated to the Chairman of the Far Eastern Commission on July 29,
1946. There is enclosed a message dated August 2, 194672 from the Supreme Commander for
the Allied Powers which further discusses the points raised in the
Chairman’s consultative message.
It is requested that the Chairman of the Far Eastern Commission make this
message available to the members of the Far Eastern Commission.
[Annex]
Telegram From General of the Army Douglas
MacArthur
[Tokyo,] 2 August 1946, [—12:29
p.m.]
The following comments are made with respect to the points raised by
members of the Far Eastern Commission:
(2A) It was considered here that the existing requirement in the
draft constitution that the Prime Minister must be designated by the
Diet and approval of the Diet must be obtained to the appointment of
all Ministers of State satisfied the underlying intent of Far
Eastern
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Commission policy
in point. Should this not be so regarded by the Far Eastern
Commission, I strongly urge the amendment of its policy. A rigid
requirement that the Prime Minister and majority of Ministers of
State must be selected from membership of the Diet would be unwise,
as such requirement would deprive the Japanese Government of the
services, in ministerial capacities, of many men of possibly higher
qualification than might be found in the legislative body. It would
tend to limit democratic process rather than advance it. It is an
unusual and arbitrary restriction upon government which I doubt can
be found in any governmental system in the world. The existing
requirement in the draft constitution that the Prime Minister must
be designated by the Diet and approval of the Diet must be obtained
to the appointment of all Ministers of State should satisfy every
reasonable requirement of democratic process in such matter.
(2B) While I have felt that articles 39 and 40 of the draft
constitution provide adequate safeguard against improper electoral
discrimination, I understand that the specific prohibition against
discrimination in article 40 is being extended by the Japanese
themselves to embrace education, property and income. I do not feel
that the specific inclusion of “age” would be wise or warranted. The
age at which persons reach mature political thought is for the
people themselves to determine through the normal evolution of law,
just as is the age at which a person might be termed “adult”. In the
case of the Japanese people, the present electoral law provides 19
as the minimum qualifying age, but whether this be fixed as at
present or at 25 as formerly would apply to all classes of the
people and hence there is no “discrimination” within the ordinarily
accepted use of the term. On the other hand, if such a provision
were incorporated in the constitution, confusion inevitably would
result in determining the electoral age necessary to satisfy the
same.
(2C) In the course of the unrestrained debate on the proposed
constitution now proceeding in the National Diet, considerable
argument has been advanced supporting the provision that a …73 of the sovereign position should be made in the
body of the constitution itself, although it is generally
acknowledged by best legal opinion that in Japan the provisions of
the preamble would be as mandatory upon the people as would be the
articles that follow. It is my understanding that, to settle this
controversial point, it is probable that the Japanese will amend the
draft constitution in order that it specifically reaffirms in one of
the articles thereof that the sovereign
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power resides in the people. Reference
questions raised your paragraph 3:
- (a)
- I am of the opinion that the implementing legislation
referred to should not be included in the constitution, as
such detailed matters of government might better remain
susceptible to change, as conditions require, by normal
legislative process rather than be handicapped by the
necessity for extraordinary constitutional amendment. The
laws designed to implement any constitution finally adopted,
such as the Imperial Household Law, will of course be
closely scrutinized by SCAP
to determine that they are not inconsistent with any
principle laid down at Potsdam nor with the constitution
itself;
- (b)
- I am of the opinion that the specific grounds on which a
Diet member may be expelled finds no appropriate place in
the constitution. Under normal practice, a legislative body
is left free to make rules governing the qualifications of
its own members. The draft constitution provides that the
expulsion of a member of the Diet may be effected only by a
⅔ vote of its members present, and such provision would
appear to provide reasonable safeguard against arbitrary
action by majority groups;
- (c)
- Question concerning the selection of the Prime Minister is
believed to be academic in the view of the provisions of
article 63 of the draft constitution providing that where an
irreconcilable difference of opinion exists between the two
Houses on such selection, the decision of the House of
Representatives shall be that of the Diet. In this
connection there is some possibility that in the
constitution finally adopted provision will be made for a
unicameral legislature.
Throughout the queries of the members of the Far Eastern Commission,
there appears to be some indication of a tendency to attempt to
obtain a perfection in constitutional government which we would not
seem to be at liberty to insist upon in implementation of the
Potsdam requirement for the establishment of a democratic state. In
this connection, sight should not be lost of the fact that the
entire constitutional amendment process now under way is one by the
Japanese Government and people, and that the sole justification for
our intervention is to ascertain that the steps taken lead toward
desired democratization. I am sure that the Far Eastern Commission
is equally cognizant with me of the sensitive and delicate position
which the Allied Powers occupy in the effort to secure for Japan a
democratic constitution which will be fact worth more than a mere
scrap of paper. For this reason it is essential to avoid the
slightest unnecessary display or show of force underlying our
effort, or the insistence upon perfection in detail among several
democratic alternatives against Japanese objections. Such action on
our part would vitiate our very aim and purpose to secure adoption
of a constitution which not only expresses the free will of the
Japanese people but which will command their allegiance long after
the withdrawal of Allied Forces.
