Foreign Relations of the United States, 1946, The Far East, Volume VIII

894.011/6–1246

Note by the Secretaries of the State–War–Navy Coordinating Committee¹⁴

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SWNCC 228/3

[Washington,] 11 June 1946.

United States Policy in Regard to the Adoption of a New Japanese Constitution

The enclosure, a study on the above subject presented by the State Member, is circulated for consideration by the Committee.

Alexander D. Reid
B. L. Austin
Harold W. Moseley

Secretariat

[Enclosure]

United States Policy in Regard to the Adoption of a New Japanese Constitution

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Memorandum by the State Member, SWNCC

the problem

1. The problem is to determine United States policy on the issues in regard to the adoption of a new Constitution for Japan.

facts bearing on the problem

2. See Appendix “A”.¹⁵

discussion

3. See Appendix “B”.¹⁵

conclusions

4. It is concluded that the draft statement in Appendix “C”¹⁶ and the draft message in Appendix “D”¹⁷ are statements of United States policy on the several issues which have arisen as to the adoption of a new Japanese Constitution.

recommendations

5. It is recommended that:

a. The State–War–Navy Coordinating Committee approve the statement of United States policy in Appendices “C” and “D”.

b. The statement of policy in Appendix “D” be forwarded to the President for transmission to General MacArthur for his information and guidance.

c. Appendix “C” be forwarded to the United States member of the Far Eastern Commission for his guidance in the preparation of a statement for the Commission on the United States position in reference to the authority of the Commission regarding the adoption of a new Japanese Constitution.

[Subenclosure 1]

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Appendix “C”

Proposed Statement by United States Representative on the Far Eastern Commission on the Function of the Commission in Passing on the New Japanese Constitution

1. The Japanese Government and people are competent to adopt a new Constitution provided it is approved in accordance with Japanese constitutional requirements and is consistent with the provisions of the Terms of Surrender, including the Potsdam Declaration, and of other controlling documents.

The Potsdam Declaration contains the following statements which describe certain features which must characterize a new Japanese Constitution: (1) “The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion and of thought, as well as respect for the fundamental rights, shall be established”; (2) “The occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives have been accomplished and there has been established, in accordance with the freely expressed will of the Japanese people a peacefully inclined and resonsible Government”.

2. The Far Eastern Commission has the function “to formulate the policies, principles, and standards in conformity with which the fulfillment by Japan of its obligations under the Terms of Surrender may be accomplished”.

The Far Eastern Commission, therefore, has the authority to determine the principles and standards in accordance with which the new Japanese Constitution should fulfill the provisions of the Potsdam Declaration.

3. The Far Eastern Commission has the right to pass upon a new Constitution to determine whether it is consistent with the provisions of the Potsdam Declaration and of pertinent policy decisions of the Far Eastern Commission.

The Secretary of State, on March 12, 1946, stated that “before the Constitution becomes constitutionally effective it will in some way or other come before the Far Eastern Commission”. The United States representative on the Far Eastern Commission joined with the other representatives on the Commission in voting for the following provision: “The Commission desires that the Supreme Commander for the Allied Powers make clear to the Japanese Government that the Far Eastern Commission must be given an opportunity to pass upon the final draft of the Constitution to determine whether it is consistent with the Potsdam Declaration and any other controlling document before it is finally approved by the Diet and becomes legally valid”.

4. The competence of the Far Eastern Commission “to pass upon the final draft of the Constitution” is limited to determining whether the Constitution is consistent with the Potsdam Declaration and any other controlling documents. The Commission appears to have been given no authority to “pass upon” the draft Constitution in any other respect or for any other purpose.

5. Since the Japanese Government and people are competent to adopt a new Constitution provided it is not determined to be inconsistent with certain provisions prescribed by the Allied Powers, a draft Constitution will in due course become effective, unless the Far Eastern Commission finds that it is not consistent with the Potsdam Declaration and other requirements. There is no provision for a formal approval of the Constitution by the Far Eastern Commission. In fact, acceptance, amendment or rejection by the Far Eastern Commission of each section or paragraph would itself violate the intention of the Potsdam Declaration that the new government in Japan must be established “in accordance with the freely expressed will of the Japanese people”.

6. When the Far Eastern Commission passes on the draft Japanese Constitution, the Commission may conclude that it is not consistent with the Potsdam Declaration and other requirements and may insist on adequate changes in the draft. If the Commission does not find that the draft is inconsistent with those requirements, the draft Constitution, in accordance with the competence of the Japanese Government and people to adopt a new Constitution, and without formal action by the Commission, will become effective after it has fulfilled Japanese constitutional provisions.

7. It would be advisable for the Far Eastern Commission to pass upon the Constitution just before rather than just after it has been adopted by the Diet. This is the view of the Far Eastern Commission, as expressed in its policy decision of March 20. The best time might be after the Committee of the Whole, if the Diet has this procedure, has passed it, but before the full Diet has voted on it.

[Subenclosure 2]

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Appendix “D”

To General MacArthur:

1. In view of the obligations of this Government under the Potsdam Declaration, the policy decision of the Far Eastern Commission of May 13th, and other commitments, it is deemed advisable to inform you of our position in regard to these obligations and our views on the several issues which have arisen as to the adoption of a new Japanese Constitution.

2. This Government is in full accord with the desire expressed in your recent communications that a new Japanese Constitution should express the free will of the Japanese people and accordingly concurred in the policy relative to criteria for the adoption of a new Japanese Constitution, which was unanimously approved by the Far Eastern Commission on May 13, 1946. We believe that to achieve this objective and to implement this policy decision you should take such action as is necessary for the Diet to give ample time to a detailed consideration and full discussion of the pending Cabinet draft, any other drafts, and all amendments presented.

3. It was recently reported that the Japanese Government expected the Diet to adopt a new Constitution by the end of June at the latest. It is difficult, as you have stated, to determine in advance the length of time necessary for the consideration of the Constitution. This Government, however, believes that a period of three or four weeks from the time of the introduction into the Diet of the Constitution is much too short. It is contrary to precedent in the United States where State Constitutions have required on the average nearly three and one-half months consideration in the respective Constitutional Conventions. It is also contrary to precedents in Europe where the Constituent Assemblies after the first World War took on the average sixteen months each to complete their work.

4. Consideration of the Constitution limited to as short a time as has been suggested would be widely interpreted as evidence that the new Constitution had been pushed through the Diet and that it did not express the free will of the Japanese people. Such a result would not be to the interest of the United States, would give rise to widespread public criticisms and would further embarrass our relations with our Allies since many members of the Far Eastern Commission would undoubtedly wish to disapprove the adoption of a Constitution in this manner.

5. Further, this Government believes that it would be advisable, provided it should be acceptable to the Japanese, to have the new Constitution receive final ratification by some media other than the present Diet: that is, by a specially elected Constituent Assembly or another Diet elected with the Constitution as a campaign issue, or a popular referendum. In spite of pressure for the adoption of such a procedure from practically all other members of the Far Eastern Commission, General McCoy has made it clear in the Commission that the United States will not permit you to be embarrassed by a policy decision which would require a constituent assembly, a second Diet or a referendum. However, a final approval of the Constitution by either a Constituent Assembly or referendum or both would be in line with American precedents. As you are well aware, in the United States since about 1800 the normal procedure for the adoption of State constitutions has been, first, a constitutional convention, and second, the submission to the people for approval of the constitution framed by the convention. In Europe modern constitutions have normally been framed by bodies specifically elected for the purpose of framing constitutions, and the recent draft constitution for France was submitted to a popular referendum. A constitutional convention or a public referendum would give additional opportunity to the Japanese to discuss a new constitution, would largely remove the apprehension of some of our Allies that the Constitution is being rushed to early ratification, and would be an additional safeguard against any subsequent Japanese claim that the Constitution did not express the free will of the Japanese people. If any of these methods should be followed, provisions would need to be adopted to make the procedure constitutional and to assure legal continuity from the existing Constitution to the new Constitution, which might be effected in accordance with Article 73 of the present Constitution. [Article 73 is in Annex].¹⁸ It is believed that these provisions would be necessary in order to prevent later insistence by Japanese constitutional lawyers or ultra-nationalists that the new Constitution had been imposed on the Japanese from without, that it had no standing in law and hence should be considered null and void.

6. This Government believes therefore that it would be advisable for you to discuss this matter with suitable Japanese leaders and make clear to them that there is no objection to final ratification of the Constitution by a constituent assembly or second Diet elected expressly for the purpose, or a referendum.

7. As to the authority of the Far Eastern Commission in regard to the adoption of a new Japanese Constitution, the Secretary of State said on March 12 that “before the Constitution becomes constitutionally effective it will in some way or other come before the Far Eastern Commission”. This Government was a participant in the adoption by the Far Eastern Commission on March 20 of a policy decision which contained the following statement: “the Commission desires that the Supreme Commander for the Allied Powers make clear to the Japanese Government that the Far Eastern Commission must be given an opportunity to pass upon the final draft of the Constitution …”.¹⁹ In the view of this Government, the competence of the Far Eastern Commission to pass upon the Constitution is limited to ascertaining whether the Constitution is inconsistent with the requirements of the Potsdam Declaration and any other controlling documents, particularly a probable policy decision of the Far Eastern Commission, now pending in committee, on “Basic Principles for a new Japanese Constitution”, which, if adopted by the Commission, will doubtless be based on SWNCC 228. The Commission would not in our judgment be authorized to pass upon the Constitution in the sense of accepting, amending, or rejecting each section or paragraph. If the Far Eastern Commission should conclude that the Constitution did not fulfill the requirements of controlling documents it would doubtless so state. Our position is that the new Japanese Constitution will become effective when it has fulfilled the Japanese constitutional provisions unless the Far Eastern Commission finds that it has failed to meet Potsdam and other requirements.

8. We believe it would be in order for the Far Eastern Commission to pass upon the draft constitution just before rather than just after it has been adopted by the Diet. The best time might be after the Committee of the Whole, if the Diet has this procedure, has passed it, but before the full Diet has voted on it. If the Far Eastern Commission should conclude that the draft Constitution in certain respects did not meet the requirements set out in the controlling documents, the Japanese could make the necessary adjustments or changes before rather than after the Diet had formally and finally approved it.

9. We have gone into this subject at such length both because it appears advisable to make clear the views of this Government in regard to the appropriate procedures to be followed in the adoption of a new Constitution and because the issue as to the method of the adoption of the new Japanese Constitution is causing this Government increasing concern in its relations with the ten other states on the Far Eastern Commission. These states in the main are giving strong support to your administration and the representatives of these states have expressed great admiration for your achievements in Japan. They have, however, a growing impression that the United States Government is giving scant attention to their views and considered judgments on those matters which are clearly within their competence. With this situation in mind, we believe that it should be made clearly known in Japan by means which you deem appropriate, that every opportunity will be afforded for ample debate on the Constitution and for an adequate expression of the free will of the Japanese people by methods already described which will be consistent with normal American procedure and acceptable to the Japanese. This Government strongly believes that such opportunities should be afforded and also finds itself in agreement with the other states on the Far Eastern Commission on this principle.

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Annex to Appendix “D”

The Present Constitution of Japan

chapter vii

Supplementary Rules

Article LXXIII. When it has become necessary in future to amend the provisions of the present Constitution, a project to that effect shall be submitted to the Imperial Diet by Imperial Order.

In the above case, neither House can open the debate, unless not less than two-thirds of the whole number of Members are present, and no amendment can be passed, unless a majority of not less than two-thirds of the Members present is obtained.

14. Handwritten notation on the original: “Submitted to SWNCC but no action as yet taken. 12 June 1946.” In a memorandum of June 12 to the Counselor (Cohen), Mr. Vincent confirmed this fact and added: “In view of the complexities of this problem and the involvement of both the Far Eastern Commission and SCAP, I presume you and Mr. Byrnes may wish to read this paper.” (894.011/6–1246) At the 41st meeting of SWNCC on June 27, this document was approved as recommended.
15. Not printed.
15. Not printed.
16. See subenclosure 1.
17. See subenclosure 2.
18. Brackets appear in the original.
19. Omission indicated in the original.