The Constitution of Japan: A Contextual Analysis by Shigenori Matsui (review)

Shigenori Matsui, one of the leading constitutional scholars in Japan, was a long-time professor of constitutional law at Osaka University and is now director of Japanese Legal Studies at the University of British Columbia. As his career shows, he is eminently qualified to write a book entitled The Constitution of Japan. In this publication, part of the “Constitutional Systems of the World” series, Matsui presents a concise and balanced description of the legal structure of the Japanese constitution.

Chapter 1, “The Constitution: Context and History,” briefly outlines the history of constitutional law and the significance of constitutionalism in Japan, with an emphasis on the sources of constitutional law and its basic characteristics and fundamental principles. Here Matsui points out the unconstitutional character of the 1889 Meiji constitution and discusses the current constitution, adopted in 1946, as a new start for constitutionalism in Japan. The new constitution is subject to revision through an amendment process of the former Meiji constitution, but a certain skepticism surrounds its legitimacy because it could not have been established without the strong initiative of the occupation forces led by U.S. General Douglas MacArthur after Japan’s defeat in World War II. Additionally, there is another theoretical problem: while sovereignty has shifted from the emperor to the Japanese people, it has been discussed whether such a transformation could be brought about by an ordinary amendment procedure. In response to the charges of constitutional illegitimacy, Miyazawa Toshiyoshi, a professor of constitutional law at the University of Tokyo and unquestionably the most influential figure in postwar Japanese constitutional jurisprudence, advocated his theory of the “August Revolution.” Miyazawa justified this shift of sovereignty by arguing that it had already happened before the enactment of the constitution, namely, at the time of Japan’s surrender to the Allied Powers on August 15, 1945. The Japanese government accepted the Potsdam Declaration, which required that the new government must be “established in accordance with the freely expressed will of the Japanese people.” Thus, popular sovereignty was introduced when the current constitution was adopted.

In chapter 2, “The Constitution, the People and the Emperor,” Matsui describes institutional aspects of this popular sovereignty principle such as Japanese nationality, the electoral system, political parties, and the status and power of the emperor. Here it is notable that the author bluntly declares his stance on constitutional issues that are considered sensitive by the Japanese public. For example, he supports giving citizenship to resident Koreans and Taiwanese, and he argues that the emperor, who has been viewed simply as a celebrity by most of the public under the current constitution, should not be treated as the head of state and that Japan must be regarded as a constitutional republic.

Chapter 3, “The Diet and the Legislative Power,” examines legislative power and processes in Japan. Even though the Japanese Diet is acknowledged as the nation’s sole legislative organ, its real function can be seen merely as rubber stamping, as most of the bills enacted by the Diet are made by the government and, more precisely, by the bureaucrats who work there. This phenomenon is prevalent in other mass-democratic countries as well, but it undermines the effectiveness of legislative bodies, which are supposed to reflect the full spectrum of views held by the citizenry. Applying a sociological analysis, Matsui does not fail to mention the personal background of Japanese legislators, many of whom are children of politicians. Comparing the Japanese Diet to the legislatures of the United States and other Western countries, he also shows a conspicuous lack of members of both parliamentary houses who hold law degrees. According to the author, these two characteristics leave Diet members with insufficient legal knowledge and other skills required to draft bills, which has allowed government bureaucrats to dominate the Japanese legislature. These are valid observations, but Matsui overlooks the fact that many Diet members held high-ranking bureaucratic posts prior to becoming politicians...