Constitutional Investigation Committee Provisional Draft Published in the Mainichi Shimbun (February 1, 1946)

Constitutional Investigation Committee Provisional Draft Published in the Mainichi Shimbun¹
February 1, 1946

Source: Charles L. Kades papers, Gordon W. Prange Collection, University of Maryland.

Chapter I. The Emperor

Article 1.
Japan is a monarchy.
“Absolute in light of remaining provisions.”

Article 2.
The Emperor is the monarch and exercises the rights of sovereignty according to provision of present constitution.

Article 3.
Imperial Throne shall be succeeded to by Imperial male descendants unbroken for ages eternal according to the provisions of the Imperial House Law.

Article 4.
The Emperor assumes no responsibility for his actions.
(One possible rendition of this reads “The Emperor shall not be punished for his actions”)

Article 5. (Same as present constitution)
The Emperor exercises the legislative power with the consent of the Imperial Diet.

Article 6. (Unchanged)
The Emperor gives sanction to laws and order them to be promulgated.
Leaves Emperor free to act without controls.

Article 7.
The Emperor shall convene the Diet and he shall order the opening, closing and prorogation of the Diet session and he shall order the dissolution of the Diet.
(Without control)

Article 8.
The Emperor in consequence of the need for the maintenance of public safety or to avoid public calamities, issues, with the approval of the Diet Deliberation Committee, Imperial Ordinances in place of law, and this Imperial Ordinance shall be submitted to the following Diet Session. If not approved by the Diet they shall become invalid for the future and this must be published (so as to inform) the public.

Article 9.
The Emperor issues or causes to be issued ordinances necessary for carrying out of the law. However, he cannot order the change of a law.

Article 10.
The Emperor determines the organization of all branches of administration and the salaries, appointments and dismissal of all civil officials. However, in special cases that apply to this constitution or other laws they will be determined by the respective articles (bearing thereon).
Acts clearly as the Executive. Absolute executive power.

Article 11. (Deleted)
This article stated that the Emperor has supreme command of the Army and Navy.

Article 12. (Deleted)
This article in the present constitution states that the Emperor determines the organization and peace standing of the Army and Navy.

Article 13.
The Emperor concludes treaties but treaties which concern matters which must be regulated by law and treaties which place important responsibilities upon the state require the approval of the Diet.
(2) The Emperor orders the promulgation and execution of treaties.
(3) Treaties become effective as laws with promulgation.
(No control by Cabinet)

Article 14.(Deleted)
This article states that the Emperor declares a state of siege.

Article 15.
The Emperor confers marks of honor.

Article 16. (Unchanged)
The Emperor orders amnesty, pardon, commutation of punishment and rehabilitation.
(Executive Power)

Article 17. (Unchanged)
A Regency shall be instituted in conformity with the provisions of the Imperial House Law.
(2) The Regent shall exercise the powers appertaining to the Emperor in his name.

Chapter II. Rights and Duties of Subjects

Article 18. (Unchanged)
The condition necessary for being a Japanese subject shall be determined by law.

Article 19.
Japanese subjects are equal before the law. Japanese subjects may according to the qualifications determined in laws and ordinances, be appointed to civil or other public offices without discrimination.

Article 20.
Japanese subjects are eligible for honorary appointments and other public offices according to provisions of the law.

Article 21. (Unchanged)
Japanese subjects are amenable to the duty of paying taxes, according to the provisions of law.

Article 22.
Japanese subjects shall have the liberty of abode and of changing the same as well as the liberty of occupational choice.
(2) Restrictions required for public welfare shall be determined by law.

Article 23. (Unchanged)
No Japanese subject shall be arrested, detained, tried or punished, unless according to law.
Objections
No right of habeus corpus

Article 24. (Unchanged)
No Japanese subject shall be deprived of his right of being tried by the judges determined by law.
No protection for accused person.

Article 25.
No Japanese subject shall have his residence invaded and the restriction necessary to maintain public peace shall be under the provision of the law.

Article 26.
Any Japanese subject shall not be violated as regards privacy of personal correspondence, and the restrictions necessary to maintain public peace shall be under the provisions of the law.
No guarantee of speedy trial.

Article 27. (Unchanged)
The right of property of every Japanese subject shall remain inviolate.
No protection against forcible self incrimination.

Article 28.
Every Japanese subject shall have freedom of religious belief and the restrictions necessary to maintain public peace shall be under the provisions of the law.
No protection to other persons than Japanese subjects.
 

Article 29.
Every Japanese subject shall have freedom of speech, writing, publishing, meeting and association and the restrictions necessary to maintain public peace shall be under the provisions of the law.
All provisions are subject to being negate by “law” etc.

Article 30.
Every Japanese subject shall be allowed to petition under the provisions of the law.
(2) Every Japanese subject shall have the right and duty to receive education under the provisions of the law.
(3) Every Japanese subject shall have the right and duty of labor under the provisions of the law.
(4) Every Japanese subject shall not have his freedom and right invaded without recourse to law except on the matters mentioned in this chapter.
No absolute freedom of speech, religion, etc.

Article 31. (Deleted) States that the provisions contained in the present Chapter shall not affect the exercise of the powers appertaining to the Emperor, in times of war or in cases of national emergency.

Article 32. (Unchanged)
Each and every one of the provisions contained in the preceding Articles of the present Chapter, that are not in conflict with the laws or the rules and disciplines of the Army and Navy, shall apply to the offices and men of the Army of the Navy.

Chapter III. The Imperial Diet

Article 33.
The Imperial Diet shall consist of two Houses; the House of State Councillors (Sangi in) and the House of Representatives.

Article 34.
The House of State Councillors shall be organized by the members elected by every local deliberative assembly and the members who are the representatives of various occupations under the provisions of the House of State Councillors Law.

Article 35.
The House of Representatives shall be organized by the members elected in accordance with the fundamental principles of liberty, equality, fairness and secrecy under the provisions of the Election Law.
“With regulatory power vested in the Home Ministry.”

Article 36. (Unchanged)
No one can at one and the same time be a Member of both Houses.

Article 37. (Unchanged)
Every law requires the consent of the Imperial Diet.
“No provision for executive veto - may be a negative power when read with Article 40.”

Article 38. (Unchanged)
Both Houses shall vote upon projects of law submitted to it by the Government, and may respectively initiate projects of law.

Article 39. (Unchanged)
A Bill, which has been rejected by either the one or the other of the two Houses, shall not be again brought in during the same session.

Article 40. (Unchanged)
Both Houses can make representations to the Governments, as to laws or upon any other subject. When, however, such representations are not accepted, they cannot be made a second time during the same session.
Wholly inconsistent with Article 37.

Article 41. (Unchanged)
The Imperial Diet shall be convoked every year.
Indefinite.

Article 42.
The Imperial Diet shall have a session of three months. If necessary, the session shall be prolonged through an Imperial Ordinance or decision of each House.

Article 43.
If extraordinarily and urgently necessary, in addition to a regular session, an extraordinary session shall be convoked.
(2) Both Houses shall be allowed to ask convocation of an extraordinary session through agreement of more than one third of the members of each House.
“Merely right of petition.”
Amounts to a concurrent power with the Emperor to prolong session.

Article 44. (Unchanged)
The opening, closing, prolongation of session and prorogation of the Imperial Diet, shall be effected simultaneously for both Houses.
(2) If one House should be ordered to be dissolved the other one shall be naturally closed.
No provision for dissolution of the Diet.

Article 45.
If the House should be ordered to be dissolved, its members shall be immediately changed and an extraordinary session shall be convoked within three months from the day of dissolution.
(2) This rule, however, shall not be applicable when a regular session is convoked during that period.

Article 46. (Unchanged)
No debate can be opened and no vote can be take in either House of the Imperial Diet, unless not less than one third of the whole number of the Members thereof is present.
One third constitutes quorum.

Article 47.
Votes shall be taken in both Houses by absolute majority. In the case of a tie vote, the President shall have the casting vote.

Article 48. (“Demand of the Government” is Deleted)
The deliberations of both Houses shall be held in public. The deliberations may, however, by resolution of the House, be held in secret sitting.

Article 49. (Unchanged)
Both Houses of the Imperial Diet may respectively present addresses to the Emperor.

Article 50. (Unchanged)
Both Houses may receive petitions presented by subjects.

Article 51. (Unchanged)
Both Houses may enact, besides what is provided for in the present Constitution and in the Law of the Houses, rules necessary for the management of their internal affairs.

Article 52. (Unchanged) No member of either House shall be held responsible outside the respective Houses, for any opinion uttered or for any vote given in the House. When, however, a Member himself has given publicity to his opinions by public speech, by documents in print or in writing, or by any other similar means, he shall, in the matter, be amenable to the general law.

Article 53.
The member of both Houses shall, during the session, be free from arrest, unless with the consent of the House, except in cases of flagrant delicts, or of offenses connected with a state of internal commotion or with a foreign trouble.
(2) (Addition) Members arrested prior to opening of session may be released during the session when requested by the House.

Article 54.
The Minister of State and the Delegates of the Government may, at any time, take seats and speak in either House.
(2) The Investigation Committee of the Imperial Diet shall be established in the Imperial Diet under the provisions of the Parliamentary Law.
(3) The Investigation Committee of the Imperial Diet shall be organized by the members of both Houses.
(4) Even if every committeeman should lose his post as a member of the Diet on account of the expiration of this term of office or dissolution, he shall continue his duty till the successor takes up his post.

Chapter IV. The Minister of State and the Privy Council

Article 55.
Every state minister shall give his advice to the Emperor and be responsible for him.
(2) (Unchanged) All laws, Imperial Ordinances and Imperial Rescripts of whatever kind, that relate to the affairs of the State, require the counter-signature of a Minister of State.
(3) Every state minister shall need the confidence of the Imperial Diet on his being in office. If one House should decide the want of confidence in any state minister, the government shall be allowed to petition to the Emperor to dissolve that House. However, if that House should decide the want of confidence in him again at the next session, the state minister shall retire from office.
Gets up an invincibility of Ministers. Gives Emperor sole power to dissolve the Diet.

Article 56.
All the state ministers shall organize a cabinet.
(2) The system and official powers shall be fixed by the law.

Chapter V. Judicature

Article 57. (Unchanged)
The Judicature shall be exercised by the Courts of Law according to law, in the name of the Emperor.
(2) The organization of the Courts of Law shall be determined by law.

Article 58. (Unchanged)
The judges shall be appointed from among those who possess proper qualifications according to law.
(2) No judge shall be deprived of his position, unless by way of criminal sentence or disciplinary punishment.
(3) Rules for disciplinary punishment shall be determined by law.
No safeguards for independent judiciary.

Article 59. (Unchanged)
Trials and judgements of a Court shall be conducted publicly. When, however, there exists any fear that such publicity may be prejudicial to peace and order, or to the maintenance of public morality, the public trial may be suspended by provision of law or by the decision of the Court of Law.

Article 60. (Unchanged)
All matters that fall within the competency of a special Court shall be specially provided for by law.

Article 61.
Every law suit against any administrative government office for infringement on rights by illegal measures or any other law suits concerning administrative affairs shall fall under the jurisdiction of a judicial court.

Chapter VI. Finance

Article 62. (Unchanged)
The imposition of a new tax or the modification of the rates (on an existing one) shall be determined by law.
(2) However, all such administrative fees or other revenue having the nature of compensation shall not fall within the category of the above clause.
The raising of national loans and the contracting of other liabilities to the charge of National Treasury, except those that are provided in the Budget, shall require the consent of the Imperial Diet.

Article 63. (Unchanged)
The taxes levied at present shall, in so far as they are not remodeled by a new law, be collected according to the old system.

Article 64. (Unchanged)
The expenditure and revenue of the State require the consent of the Imperial Diet by means of an Annual budget.
(2) Any and all expenditures overpassing the appropriations set forth in the Titles and Paragraphs of the Budget, or that are not provided for in the Budget, shall subsequently require the approbation of the Imperial Diet.

Article 65. (Unchanged)
The Budget shall be first laid before the House of Representatives.
(2) If the House of Representatives should remove or eliminate any article or item of the budget, the House of State Councillors shall not be allowed to restore it.

Article 66.
The expenses of the Imperial Court shall be paid out of the Treasury every year at the especially fixed constant sum, and approval of the Imperial Diet shall be unnecessary except where the increase of the sum be necessary.

Article 67.
“The determined annual expenditure based on constitutional sovereignty” is eliminated.

Article 68. (Unchanged)
In order to meet special requirements, the Government may ask the consent of the Imperial Diet to a certain amount as a Continuing Expenditure Fund, for a previously fixed number of years.

Article 69. (Unchanged)
In order to supply deficiencies, which are unavoidable, in the Budget, and to meet requirements unprovided for in the same, a Reserve Fund shall be provided in the Budget.
(2) Where a reserve fund be appropriated for necessary expenditure other than by the budget, a debate at the Investigation Committee of the Imperial Diet shall be necessary.
(3) If a reserve fund should be paid, it shall be necessary to ask approval of the Imperial Diet later.

Article 70.
“Through the debate of the Investigation Committee of the Imperial Diet” is added after “If impossible.”

Article 71.
If the budget should fall to secure Parliamentary approval within the fiscal year, the government shall make a temporary budget with the period of 3 months within the limits of the budgets of the preceding fiscal year under the provision of the Financial Law and enforce it. In the case of the preceding item if the Imperial Diet should be out of session, the government shall immediately convoke a session and submit the budget which is removed the part concerning the period of that fiscal year fixed in the preceding item. If the budget fixed in the preceding item should fail to secure Parliamentary approval within the period fixed in Item 1, the Government shall make and enforce a temporary budget according to Item 1. The rule of the preceding item shall be applicable correspondingly to this case.
Provision negatives the authority of the Diet to establish the budget.

Article 72. (Unchanged)
The final account of the expenditures and revenue of the State shall be verified and confirmed by the Board of Audit, and it shall be submitted by the Government of the Imperial Diet, together with the report of verification for the said Board.
(2) The organization and competency of the Board of Audit shall be determined by law separately.

Chapter VIII. Supplementary Rules

Article 73. (Unchanged)
When it has become necessary in future to amend the provisions of the present Constitution, a project to the effect shall be submitted to the Imperial Diet by Imperial Order.
(2) The members of both Houses shall be allowed to propose a revision of the Constitution through agreement of more than one third of all the members of each House.
(3) Both Houses shall not be allowed to debate on the revision of the constitution, if more than two thirds of the members of each House should not be present. Both Houses shall not be allowed to decide the revision if more than two thirds should not agree.
(4) The Emperor shall sanction the revision of the constitution decided at the Imperial Diet and order its promulgation and enforcement.
Leaves absolute power of constitution revision in the hand of the Emperor as he alone can submit proposed revisions to the Diet. Should it fail to pass measure the Emperor still has the power by Imperial Ordinance.

Article 74. (Unchanged)
No modification of the Imperial House Law shall be required to be submitted to the deliberation of the Imperial Diet.
(2) No provision of the present Constitution can be modified by the Imperial House Law.

Article 75. (Unchanged)
No modification can be introduced into the Constitution, or into the Imperial House Law, during the time of a Regency.

Article 76. (Unchanged)
Existing legal enactments, such as laws, regulations, Ordinances, or by whatever names they may be called, shall, so far as they do not conflict with the present Constitution, continue in force.
(2) All existing contracts or order, that entail obligations upon the Government, and that are connected with expenditure, shall come within the scope of Ar. 67.