The meaning of the Japanese emperor in japan’s constitutional system

Therefore, the provision of the Constitution that declares how the Emperor is the symbol of national unity is merely stating the obvious, as he already represents the totality of the J[r]

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THE MEANING OF THE JAPANESE EMPEROR IN JAPAN’S CONSTITUTIONAL SYSTEM

Associate Professor Shohei Eto Sophia University, Japan Abstract

This paper is intended to discuss the meaning of the Japanese Emperor in Japan’s constitutional system Many scholars in Japan have long argued that the existence of the Emperor is incompatible with the Constitution’s principle of popular sovereignty because the legitimacy of the Emperor ultimately resides in the Shinto religion, not the people Yet, it seems that the former Emperor, Akihito, who has just abdicated managed to succeed in thriving his status as the nation’s symbol by way of committing to the fundamental values of the Constitution, especially its Pacifist character He did so by performing activities such as consoling the souls of the war dead and visiting victims in disaster-stricken areas Some experts welcomed his new role, saying that the Emperor had shown us that the monarchy and the people can co-exist But this argument is problematic The Constitution only allows the Emperor to perform formal and ceremonial acts and his new role may exceed his constitutional authority as it may amount to the task of personal “integration” as Rudolf Smend once argued The question is whether this integrational function can be the Emperor’s legitimate task under the principle of popular sovereignty This paper intends to answer this question by focusing on the question of symbolism in the Constitution

1 A New Emperor and a New Era

What year were you born? In Japan, there are two ways to reply by either referring to the Western or Japanese calendar In fact, it is not uncommon in Asian countries for people to have two calendars, but in the case of Japan, there is a problem with the Japanese version Japanese people use the era name, Gengo, but the issue arises when this name changes upon imperial succession, which is referred to as, “one reign, one era name.” In modern Japan, the era names have changed from Meiji to Taisho, Shōwa, and Heisei1 A new era recently began on May 1, 2019 when a new emperor ascended the throne

At the start of this new era, Japanese society was excited, and the Emperor’s enthronement was attended by dignitaries from over 170 countries and regions, including Britain’s, Prince Charles The day was even designated a national holiday so that all Japanese citizens could celebrate, but not all of them rejoiced in the ceremony For example, the secretary general of the Japanese Communist Party made a comment that he would be absent from the ceremony because he believes that “it is

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incompatible with the Constitution’s principle of popular sovereignty and separation of state and religion.”

This comment illustrates a problem that has lingered in the postwar Constitution of Japan After the Edo shogunate relinquished sovereignty rights to Emperor Meiji in 1867, Japan decided to allow the Emperor total control of the government under the Meiji Constitution, which was established in 1889 After Japan experienced the defeat of World War II, however, there were strong domestic and international calls for the prosecution of the Emperor of Showa Nevertheless, General Headquarters (GHQ), fearing that the prosecution would cause chaos, decided to retain the Emperor as a mere “symbol” of the nation and Japanese unity1 Seventy years later, the Constitution of Japan remains intact, and the Emperor continues to occupy the same “symbolic” position However, as the Japanese Communist Party’s criticism exemplifies, this does not necessarily mean that the role of the Emperor under the Constitution of Japan is clear

The Constitution’s text only allows the Emperor to perform formal and ceremonial acts called, “matters of state,” under the “Advice and approval” of the Cabinet2 The Constitution limits the Emperor’s authority because the framers were afraid that the Emperor’s powers may be too great, and he may attempt to run the government alone They also feared that the Cabinet may usurp the power of the Emperor for political gain, which is why postwar constitutional scholars were highly cautious about the expansion of the Emperor’s authority

However, since Article of the Constitution defines the Emperor as the “symbol” of the state to unify the people, the intention may have been for the Emperor to play a larger role The Emperor seems to have been expected to participate in “Integration” to unite the people under one nation Nevertheless, the idea that one person can unify the Japanese people may run counter to the idea of constitutionalism, which aims for the coexistence of various worldviews and values3 Indeed, attaching such importance to a sense of unity leads to the myth of emperors’ unbroken lineage for perpetuity, but many modern scholars reject this Emperor-centered historiography that was widely advocated under the Meiji Constitution For this reason, postwar scholars have been reluctant to delve deeper into the meaning of “symbol” or its integrative effects

Currently, however, we are faced with questions regarding symbolism in the Constitution For example, there is the issue of coercion over the national anthem, “Kimigayo,” and the flag, “Hinomaru,” both of which concern the Emperor’s reign There is also the question of what it means to have the Emperor as the state’s symbol and the unifier of the Japanese people Since these problems concern the integration of symbols, we cannot reach a sense of truth until we discuss the significance of symbols This article, therefore, aims to demonstrate why it is so important to discuss the significance of symbols in light of these two recent events

1 Article of the Japanese Constitution

2 This explanation of constitutionalism is highly debatable, as the meaning varies from country to country See also, Jiunn-Rong Yeh, Wen-Chen Chang, ‘The Emergence of East Asian Constitutionalism: Features in Comparison’ (2011) 59(3) AJCL <https://doi.org/10.5131/AJCL.2010.0021> accessed 23 December 2019

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ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

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2 Allegiance to the Flag

On March 11, 2011, Japan was hit by an unprecedented catastrophe, the Great East Japan Earthquake, which not only caused many deaths and injuries from the tsunami but also instigated a nuclear crisis that led to the meltdown of nuclear power plants As a result, a phenomenon called, “disaster utopia,” had emerged in Japanese society Television programming and newspapers reported: “It is wonderful to see Japanese people helping each other and acting in an orderly manner even in the face of such disasters.”

Shortly afterward, on May 30, 2011, the Supreme Court of Japan ruled that public school teachers being required to stand for “Hinomaru” and “Kimigayo” did not violate Article 19 of the Constitution, which guarantees freedom of thought and conscience1 These teachers argued that their conscience forbade them to stand for “Hinomaru” and “Kimigayo” in front of children because they were symbols of World War II militarism In response, the Supreme Court held that (1) the act of standing and singing in unison was only “a ceremonial gesture,” so it did not directly restrict freedom of thought and conscience; (2) it was a necessary and reasonable command for “ensuring the proper order for educational events and the smooth progress of ceremonies.”

The mystery of this ruling is that standing for “Hinomaru” and “Kimigayo” is regarded as “customary and ceremonial conduct,” but the court did not mention “integration.” This is highly strange considering that the national flag and anthem are presented to the public for the political purpose of achieving “integration” by concentrating the national spirit Of course, if it is performed like an Olympic award ceremony, it may be regarded as a part of international custom However, when the government uses coercion to achieve this goal, it can no longer be observed as a mere “courtesy.” In the United States, students are required to recite the “Pledge of Allegiance,” standing stiffly with their hands over their hearts, and people regard it as a patriotic oath2.

Why, then, did the Japanese Supreme Court disregard this integrational aspect of the national flag and anthem? First, the court, advocating for fairness and neutrality, desired to distance itself from the national conflict over “Hinomaru” and “Kimigayo.” On one side, there is a group that believes “Kimigayo” is a symbol of Japanese totalitarianism during World War II, as it concerns the Emperor’s reign and is incompatible with the idea of popular sovereignty On the other side, people believe that the Emperor represents Japanese history and traditions from an ancient era, so it is natural to pay respect Under these circumstances, the Court must have thought it wise to describe the act as, “a ceremonial gesture,” which is a synonym for neutrality that allows them to maintain respect from both parties3.

The problem remains that the Supreme Court overshadowed the important question regarding, “what is a symbol?” The national flag and anthem symbolize not only the country’s respectable history but also its darker past If a nation exists because of its past, then we must be prepared to

1 The most notable example is, West Virginia State Board of Education v Barnette [1943] 319 U.S 624.

2 It should be noted that the Supreme Court of Japan rarely declares governmental acts unconstitutional As of today, only ten laws or statues have been declared unconstitutional by the Supreme Court Regarding the Supreme Court in general, see also, Norikazu Kawagishi, ‘Japanese Supreme Court: An Introduction’ (2013) 8(1) NTU L Rev <https:// ssrn.com/abstract=2379231> accessed 23 December 2019

3 For the dissenting opinion of Mitsuharu Miyakawa in the Supreme Court of Japan, see also, Judged on 6.6.2011,

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accept it, which includes parts we not want to remember We need to make intentional efforts to build a better future that is based on past reflection This process would unify the Japanese people into one nation and transform the symbol into a positive one If this is the function of the symbol, then it can be accepted as a legitimate function because its role is to accommodate (rather than exclude) diversity

However, from a constitutional perspective, this does not necessarily mean that the teachers who refused to stand were acting incorrectly The teachers refused because the government used the symbols with the intention of excluding them because they knew that the teachers would not stand due to their views1 So, the government did not want to unite the Japanese people into a single nation but encourage division Otherwise, the government would have attempted to accommodate these teachers Teachers refused to stand not because they did not want to accept the country’s dark history, but rather, they wanted to embrace it as their own The Supreme Court overlooked this point by pretending the government was neutral

3 Issues with the Former Emperor’s Abdication

Another event concerning symbolism is the issue surrounding the abdication of the former Emperor, Akihito The problem began when he delivered a “Statement” in August 2016, indicating his desire to abdicate2 He stated that as he grew older, it had become difficult to fulfill his duties as the nation’s symbol Abdication while still living was not unprecedented in history, but it had not been realized in the past two centuries, at least The Imperial Household Law of 1946, which concerns the Imperial family, does not even recognize abdication So, various arguments were made as to whether we should legalize abdication and if this was achieved, how it should be done

Some held negative opinions about abdication, arguing that there is no need to abdicate because the whole point of having an Emperor is that he exists It is not important how he performs his responsibilities because his duty is to simply exist From this perspective, stability is the most important facet of the system concerning the Imperial family, and stability is threatened if abdication is to be allowed On the other hand, some viewed abdication positively, arguing that if the Emperor is too old to perform his duty, then there is nothing that can be done to stop him from abdicating The Constitution says that the status of the Emperor is derived from the people’s will So, as long as the Japanese people approve his abdication, there is no need to prohibit it3.

In the end, abdication is approved by a special law that was only concerned with Akihito’s abdication Whether abdication will be approved for future generations has yet to be determined Considering that more than 80% of the public supported his abdication in an opinion poll, it seems safe to say that the Emperor’s wishes matched that of the people4 However, from the viewpoint of the Constitution, the latest settlement is very problematic

1 ‘Message from His Majesty The Emperor’ (The Imperial Household Agency, August 2016) <www.kunaicho.go.jp/ page/okotoba/detailEn/12#41> accessed 11 November 2019 [in Japanese]

2 For a final report from a committee of experts that deliberate ways to lessen the Emperor’s burden of official duties, see also, <www.kantei.go.jp/jp/singi/koumu_keigen/pdf/sankousiryou.pdf> accessed 11 November 2019 [in Japanese] <www.kantei.go.jp/jp/singi/koumu_keigen/dai7/sankou3.pdf> accessed 11 November 2019 [in Japanese]

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First, it is highly debatable that the Constitution allows the Emperor to express his wish to abdicate1 While Article of the Constitution states, “he shall not have powers related to government,” it seems clear that his abdication is related to the government since he is part of the governmental structure One may argue that the Emperor simply expressed his wish and neither amended nor enacted the law Nevertheless, considering the Emperor’s influence, it would be incredibly difficult for the Cabinet and Diet to dismiss his wish This is especially true if the majority of Japanese citizens support the Emperor’s intention, which was the case in this instance

Secondly, the reason for his abdication (i.e., he felt like he was no longer able to fulfill his duties as the symbol) was problematic If, of course, the duties he discussed are acts in “matters of state,” which the Constitution allows him to perform, then it is not problematic However, Emperor Akihito clearly had another vision of the symbol in his mind since the actions he performed during his reign were not limited to “matters of state.” For example, he traveled to various places throughout Japan, including remote regions and islands, because he thought that it was essential “to stand by the people, listen to their voices, and be close to them in their thoughts”2 In this sense, the Emperor’s proposal to abdicate the throne was also a request for approval regarding his performance as the Emperor and Japan’s symbol

When the Emperor raised the question of abdication, most constitutional scholars were unprepared to answer it Besides “matters of state,” scholars have long recognized a special category of “public acts” within the authority of the Emperor, although this legitimacy remains controversial3 Public acts not fall into the category of “matters of state” or “private acts.” For example, the act of reciting a statement in public places, such as ceremonies or receiving foreign guests, are considered public acts However, public acts are only meant to be ceremonious and should not have political meaning Moreover, they are only permitted but not required by the Constitution

Emperor Akihito’s understanding on the symbol clearly goes beyond public acts In fact, acts, such as consoling the souls of the war dead and visiting victims in disaster-stricken areas, lack the formal and ceremonial nature traditionally expected of symbolic representatives, as these acts are more human in nature While performing these altruistic acts may seem appealing, the Emperor is also a symbol, so it is difficult to freely offer praise Actively seeking to establish relations with the Japanese people can easily invade their private domain.4 It is important not to forget that the Emperor is a public figure

These problems have arisen because Emperor Akihito raised a new constitutional question regarding his role of “integration” as the nation’s symbol When he said that he wanted to be close to the people in their thoughts, it reflects his effort to unite the people under his purpose5, and if that is the case, the question becomes whether the Constitution allows or even requires the Emperor to

1 See endnote nine for additional information

2 For the category of public acts, see also, Shiro Kiyomiya, Kenpo I: Constitutional Law I (3rd edn, Yuhikaku 1979) 168 [in Japanese]

3 See also, Shohei Eto, ‘On Respecting Individuals- the Persona View of the State’ (2019) 28 Quartrly Jurist [in Japanese]

4 It has been reported that the Emperor was not satisfied when someone described his only duty as a prayer See also,

Mainichi Newspaper (2 May 2017)

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take such direct initiatives in uniting the people While the people seem to support his understanding of the symbol, we must not forget that this was largely because Emperor Akihito would constantly reiterate his loyalty to the current Constitution It was obvious that his intention was not to exceed the Constitution’s limits Considering all of these factors, however, it is difficult to make this perspective of the Emperor’s symbolic role permanent, as part of the system

Nevertheless, the Constitution regards the Emperor as the symbol of national unity Even if the Emperor does not have governmental authority, the question of the Emperor’s significance as the symbol must be considered

4 Marxism: Why the Emperor as a Symbol is not Discussed

Why has the meaning of the Emperor as a symbol not been discussed until recently? First, it was not clear whether the concept of being symbol even had legal meaning Since a symbol represents something, it seems to align with the legal concept of representation, but there is a huge difference between a symbol and representation1.

On the one hand, when we say that Diet members represent the whole nation, we find the relationship between them and society reasonable since they are positioned by the will of the people On the other hand, there is no rational relationship between the symbol of the Emperor and what it represents For example, the cross, which is regarded as a symbol of Christianity, represents Jesus Christ and Christians’ faith in him The cross, therefore, symbolizes transcendental beings that rational thinking cannot grasp So, to symbolize means going beyond rationality, while representation means identifying with those who are being represented Hence, there is a dispute over whether a symbol can be considered a legal concept Since a symbol represents something transcendent or ultimate, it can be regarded as premodern, or even religious, and not in accordance with the modern Constitution However, these conceptual reasons are not only why postwar constitutional scholars have rarely discussed public figures as symbols, as there are also historical reasons for this that are more important In the early days, many constitutional scholars knew that the Emperor, as the symbol, was merely a product of political compromises Although the current system that supports the Emperor is also supported by many people, the future of this system was highly uncertain following defeat in the war Although Japan accepted the Potsdam Declaration on the condition that the Emperor’s system was maintained, Allied Powers insistently called to prosecute the Emperor, so the Emperor’s future was unpredictable2.

U.S General Douglas MacArthur, Supreme Commander for the Allied Powers, came to Japan to govern as head of GHQ and thought the Emperor’s existence was indispensable for Japan’s occupation However, considering the role that the Emperor played in the war, it was impossible to maintain the Emperor’s current position He had to be demoted to someone less powerful, so the GHQ decided to preserve the Emperor as a symbol Faced with this political compromise, most Japanese people thought it was inevitable, even though it was not easy for them to accept the Emperor as simply human since they had only been able to fight knowing that he was a supreme being After

1 See endnote for additional information

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he declared himself a mere human, however, it is no surprise that there were criticisms concerning his responsibility for the war Due to Japan’s defeat, the future of the country was extremely uncertain, and most people were not ready to remove the Emperor since he represented Japanese history and traditions So, the GHQ’s idea of maintaining the Emperor as Japan’s symbol, rather than the head of state, perfectly matched the ambivalent national sentiment of the time

The Japanese Communist Party (JCP), however, was not satisfied with the compromise They were severely critical of the new Constitution’s preservation of the Emperor After all, the Emperor was the head of state, so they thought he needed to take a responsibility for the war For the Communist Party that sought a proletariat revolution, the Emperor was an entity that must be overthrown, regardless of whether he is a symbol or the head of state Although the JCP’s discussions had some influence, they never became mainstream in postwar Japan1 This was partly due to the decline of communism, but mostly, the radical act to overthrow the Emperor was not in alignment with most people’s opinions who preferred the status quo

However, post-war constitutional scholars were strongly influenced by Marxism, even for those who did not call themselves Marxists2 At the time, intellectuals were mostly interested in discovering what was inhibiting Japan’s modernization after their defeat in World War II Among them, the most controversial question was whether the Meiji Restoration (the beginning of Japan’s modern era) would constitute a bourgeois revolution, and if it did not, the failure of Japan’s modernization could be attributed to the absence of a true revolution

Before the war, there was a dispute among Marxists called, the “Japanese capitalism controversy,” concerning the character of the Meiji Restoration.3 On one hand, there was a group called, the “Labour school,” or “Ronoha,” whose revolutionary strategy was observed in a socialist revolution with democratic values They acknowledged that the Meiji Restoration was a bourgeois revolution and that the constitutional monarchy had become a tool for financial capital due to the development of monopoly capitalism On the other hand, there was a group called, the “Lecture school,” or “Kozaha.” They believed that the Meiji Restoration was not a bourgeois revolution due to the survival of “feudalism,” as exemplified by the constitutional monarchy Therefore, they promoted a bourgeois democratic revolution, and then, a socialist revolution

After the war, when the nature of Japan’s modernization was questioned again in the study of the postwar Constitution, a historical view that was similar to that of the Lecture school became mainstream4 This perspective argued that the Meiji Restoration established absolutism and due to the absence of a “revolution from below,” it failed to modernize Japan So, first, it was necessary for postwar Japan to achieve a bourgeois democratic revolution The most notable example of a scholar with this viewpoint is Professor Yoichi Higuchi, a postwar expert in constitutional law Higuchi

1 The most notable example is the famous political theorist of postwar Japan, Masao Maruyama, who was a leading critic of Marxism To observe the influence of his work, see also, Masao Maruyama, ‘The Logic and Psychology of Ultranationalism’ [1946] Sekai (May) 2-15 [in Japanese]

2 For more information about this controversy, see also, Tadayuki Tushima, The History of Japan Capitalism Controversy (Kobushishobo 2014) [in Japanese]

3 The most notable example is, Shigeki Tōyama, Meiji Ishin (Meiji Restoration) (Iwanami 1951) [in Japanese] Higuchi’s historical view on modern revolution is primarily based on the work of Kouhachiro Takahashi, a historian

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argued that the absence of a “revolution from below” was a problem for Japanese civil society, just as the Lecture School did, although his view was directly based on the French Revolution, rather than Marxism1.

Naturally, this kind of view concerning the Emperor influenced constitutional scholars’ opinion Similarly to the Lecture School, many constitutional scholars thought that the constitutional monarchy should be dissolved in the future, as it was a remnant of the feudal system and could not be positively interpreted in the new Constitution (i.e., the bourgeois Constitution) Since the new Constitution defined the Emperor as the state symbol, it was not realistic to overthrow the constitutional monarchy entirely However, they thought that the Emperor’s power was strictly limited to the domain permitted by the Constitution Therefore, the Emperor came to be understood as something “foreign” to the Constitution of Japan

5 The Meaning of a Symbol

To reiterate, postwar constitutional scholars tried to protect the values of popular sovereignty and democracy by pretending the Emperor did not exist This was a natural response for those with a similar view to the historical Lecture School As a result, the debate concerning symbolism has remained futile However, there were active discussions concerning this issue at the very beginning of the postwar period because there was concern regarding how the Emperor’s position had changed, from the old constitution to the new constitution

The argument is largely divided in two directions, including either understanding the Emperor as “the head of [state]” (Satoru Kuroda) or nullifying the Emperor’s authority (Nobunari Ukai) Although these arguments are different, they share the same view that the concept of a symbol has no legal significance, and it is merely a product of political compromise However, there were some interpretations that the symbol actually had positive significance Most notably, perhaps, is Tetsuro Watsuji’s argument Since he was not a constitutional scholar, but a philosopher and ethicist, the word, “symbol,” was not a new concept for him Watsuji’s point is that it is only natural to describe the Emperor as the symbol because that is exactly the role he has played until recently

According to Watsuji, the traditional authority of the Emperor has existed throughout Japanese history.2 This authority arose because the Emperor expressed the totality of the people, not because a law stated that this was the case In other words, his authority existed prior to the establishment of the state Even when the state’s unification is lost, his authority remains unchanged Therefore, the provision of the Constitution that declares how the Emperor is the symbol of national unity is merely stating the obvious, as he already represents the totality of the Japanese people From the viewpoint of Watsuji, the authority of the Emperor is not a political authority but a cultural authority Thus, the position of the Emperor should remain unchanged even when the country is defeated

According to Watsuji’s explanation, the Emperor does not seem to have anything to with the state because he unifies the Japanese people culturally rather than politically In other words, the people symbolized by the Emperor are people that exist as a cultural community but not as a political community While it is not Watsuji’s intention to describe the Emperor as a religious authority, he

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admits that the Emperor’s authority is not separated from political power Instead, it has been a Japanese tradition since ancient times that the emperor did not directly govern

Watsuji’s view has been strongly criticized, and a typical example is one exemplified by Dr Soichi Sasaki Sasaki insists that the concept of “symbol,” which appeared in the new constitution, has no legal meaning He says that the national polity has changed since the Emperor no longer ruled the nation However, according to Watsuji, sovereignty entails the total will of the Japanese people If the Emperor symbolizes their will, it is only natural to assume that the Emperor has the right of absolute sovereignty, even under the new Constitution

The purpose of this paper is not to verify the validity of Watsuji’s claim, however Instead, it is sufficient to confirm that Watsuji interpreted a positive meaning from the concept of the symbol, regarding it as a pillar of the new Constitution

6 Closing Comments

In this paper, I examined the role of the Emperor under Japan’s Constitution based on two recent events involving symbols The study found that the status of the national flag and the symbol of the Emperor is unclear There are several difficulties involved in actively discussing the significance of the symbol, and since this issue is also related to Japanese nationalism, the truth of the matter is not easily reachable One thing for sure is that instead of pretending that these questions not exist, they need to be continually reflected on in the democratic political process

References

Eto, S (2019) On Respecting Individuals- the Persona View of the State 28 Quartrly Jurist Higuchi, Y (1977) Comparative Constitutional Law (Seirin Shoin)

Kawagishi, N (2013) Japanese Supreme Court: An Introduction 8(1) NTU L Rev Kiyomiya, S (1979) Kenpo I: Constitutional Law I (3rd edn, Yuhikaku)

Morishita, T (2014) The End of Marxism Legal Theories in Japan 64(2) Kobe Law Journal 47 Maruyama, M (1946) The Logic and Psychology of Ultranationalism Sekai (May) 2-15 Nishimura, Y (2017) The Abdication of the Emperor 20 Quarterly Jurist

Pitkin, H (1967) The Concept of Representation (University of California Press) Suzuki, H (2017) Gengo and Postwar Japan (Seidosha)

Shoichi K (2017) The Birth of the Japanese Constitution, (Iwanami Shoten) Tushima, T (2014) The History of Japan Capitalism Controversy (Kobushishobo) Tōyama, S (1951) Meiji Ishin (Meiji Restoration) (Iwanami Shoten)

Watsuji, T (2019) The Symbol of the Unity of the Japanese People (Chuko-classic)

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