The Contradiction between the symbolic emperor system and the Constitution has grown

By Watanabe Osamu, Professor Emeritus, Hitotsubashi University

Translation by Lawrence Repeta for the Asia-Pacific Journal. He is a former professor of law at Meiji University in Japan, an Asia-Pacific Journal contributing editor, and a director of Information Access Japan Clearinghouse.

Just before the emperor’s retirement and the change of era, the activities of the emperor and the imperial family suddenly came to life and the news media were overflowing with stories that struck a tone of veneration. Memorial visits to Okinawa, Saipan, and other battlegrounds and devastated sites and the people’s reception of okotoba [お言葉], or his message to the public (see note below), created an atmosphere that embraced these actions by the emperor. Moreover, many pundits and constitutional scholars positively support the actions of this emperor, interpreting them as subtle criticisms of the current administration.

But we must stop and think about this carefully. For here we see a fundamental contradiction between the symbolic emperor system and democracy.

The Constitution of Japan made the emperor a symbol in reaction to the repeated pattern of colonization and wars of aggression that occurred under the Meiji Constitution, which placed all political power in the emperor. With hoyoku [輔翼] - literally, assisting wings, but meaning, in consultation with the military, the emperor pursued war with no check from the cabinet, much less the Diet. This led to the horrifying descent through disastrous battlefields that took the lives of approximately 20 million people across Asia, including Japan.

The present Constitution preserved the emperor, but based on this experience, removed all political power, limiting the emperor to the performance of ceremonies listed in the Constitution as “acts of state (kokuji koi [国事行為]),” subject to the advice and consent of the cabinet.

Nonetheless, the existence of the emperor and popular sovereignty within the Constitution is a great contradiction. Conservative governments have sought to use the immense authority held by the prewar emperor as a force for political stability and have pushed the emperor to perform acts that are not recognized in the Constitution. During the Heisei era the political acts initiated by the emperor expanded and the contradiction with the Constitution grew ever greater.

Two contradictions have increased during the Heisei era. The first is that political statements and actions by the unelected emperor have had a great impact on politics. Even though there is strong suspicion that the frequent and generally accepted messages (okotoba) and appearances (odemashi) of the present emperor are unconstitutional, they will be inherited by future emperors; we should expect that conservative administrations will take significant advantage of these fait accompli.

The second, a much more serious problem, is that by relying on the authority of the emperor, people will obscure their own awareness and responsibility as sovereigns and will continue to avoid addressing problems. Issues like war responsibility, the work of building a country that does not engage in war, nuclear power, and the military bases in Okinawa should be resolved by the people themselves.

Visits by the emperor and imperial family members and messages (okotoba) may offer a temporary reprieve, but they cannot solve problems, nor should they. If there are issues with the Abe administration, it should be the people themselves, not the emperor, who criticize them and change the regime.

So what should be done about the emperor system? First, we should move closer to the symbolic system stipulated in the Constitution. The emperor’s public activities should be strictly limited to “acts of state.” Official visits abroad described with such labels as “imperial diplomacy” (kōshitsu gaikō  [皇室外交] should be stopped. If the emperor absolutely wishes to travel abroad, he should do so as a citizen, in other words as a private person.

“Traditions” that conflict with human rights provisions of the Constitution, such as limiting attendance to males only at change of era ceremonies, limiting the emperorship to males, conducting religious ceremonies such as the Daijosai as “official acts,” should be reviewed immediately with the goal of embedding the emperor system within democratic society.

Regarding war responsibility and related issues, the people should not simply accept the emperor’s “visits” and “messages”; instead, the people should act as sovereigns, facing these issues squarely and building a politics to deal with them.

Even so, the contradiction between the emperor and democracy will remain, but the road to its resolution can only be found through these kinds of measures.

--The above translation first appeared in the September 1, 2019, Volume 17, Issue 17, Number 3 of Asia-Pacific Journal of the original “Kenpo to no mujun hirogatta – Shocho tenno sei to minshu shugi,” a Kyodo News Agency article that appeared in Chugoku Shimbun, on April 19, 2019.

Translator’s note
Various terms are used to describe deeds of the emperor, and okotoba is one of them. It is a combination of “kotoba,” meaning words, and “o”, an honorific, and together, okotoba has a connotation of “words from on high.”

Human Rights Day and Japan

December 10th was the 70th anniversary of the Universal Declaration of Human Rights (#StandUp4HumanRights!). It is International Human Rights Day.

Human Rights Day is also when the Nobel Peace Prize is awarded. This year it is of special interest to those who care about the Comfort Women as the honors went to Denis Mukwege and Nadia Murad for their efforts to end the use of sexual violence as a weapon of war and armed conflict and the UN Security Council held an Arria-formula meeting on "Raising the effectiveness of atrocity crimes prevention: role of the United Nations Security Council and its Members".

Few appreciate the role of Asian states and diplomats in forming the Universal Declaration and modern human rights principles. Recent scholarship has highlighted extensive involvement in the 1940s by Asians in identifying war crimes and demanding accountability. Dan Plesch's work on the UN War Crimes Commission (1943-48) [Human Rights after Hitler] outlines how Chinese and Indian lawyers and officials were deeply involved before 1948 in defining crimes against humanity.

The new book by Robin and Bertrand Ramcharan, Asia and the Drafting of the Universal Declaration of Human Rights describes how the values of the Universal Declaration are very much Asian values and that the future of the world must continue to be inspired by those values. [Springer Press has made the introductory chapter from this book available free on December 10th]

This contradicts the excuses behind the human rights violations in Burma, China, Vietnam, and North Korea. The scholarship also challenges Japanese PM Abe's rationale for revising Japan's "imposed" constitution. From his many statements, he believes the charter's provisions concerning human rights do not accurately reflect the history, culture and tradition of Japan. Concerned critics fear Abe and elements in the LDP want the references to individual liberties removed and replaced with greater loyalties to the state.

The LDP draft published in 2012 confirms as much. Japanese legal expert Larry Repeta analyzes the changes proposed and how they will upend Japanese democracy in Japan's Democracy at Risk – The LDP's Ten Most Dangerous Proposals for Constitutional Change (July 22, 2013).

This focus on traditional Japanese values leads critics to worry that a vital supporter of the liberal international order does not actually believe in the universal nature of human rights as a practical matter. Most Westerners belief Constitutional change is only about Japan's war-fighting abilities. This is merely a backdoor. Japan's conservatives, who are currently running the country are most concerned with rejecting the individual liberties and human rights embodied in the current constitution.

Whereas it remains to be seen if Abe can fundamentally alter Japan Constitution, he has succeeded in adjusting the language both Japanese citizens and foreigners use in describing the history of Imperial Japan. On December 1, all the state-involved news agencies, such as JiJi, Kyodo, and NHK as well as MOFA publications and the English-language Japan Times no longer say "comfort women" or "forced laborers." It is now "women who worked in brothels" and "wartime laborers.

These changes not only erase the actual wartime language used by Imperial Japan..."comfort women" is not something imposed postwar by us... it can be argued that the new language somehow sanitizes the imagery of these wartime tragedies and abuses, and thus flies in the face of every aspect of today's Nobel Peace Prize award.

Human rights are tools that human beings designed to protect ourselves from the arbitrary exercise of power. They are not culture specific. Yet with the proposed changes to the Constitution, the Abe government now finds itself in the uncomfortable position of apparently denying a key human element of the liberal international order.

Working to preserve the histories of the Comfort Women, forced laborers, and all of Imperial Japan's victims is important in that it reminds the Japanese people of the consequences of believing that they are unique and do not share values with others. It is less about those harmed than about the abyss that Japan can again fall. It is about democracy under attack and the values of individual dignity it can protect.

Not all in the LDP want to Constitution revised. In fact, the 10th was also the last day of the current Diet session and the party did not submit any constitutional revisions for consideration.

But if Abe continues to revise Japan's wartime past and cleanse the language used to describe the war, his patience might pay off.

For a good history of how the Universal Declaration of Human Rights came to be, see: A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights by Mary Ann Glendon.