Democracy and Japanese government

Preface

Inspired by the noble ideas of the greatest statesman of the age, President Wilson of the United States, and hoping that the writer may contribute his humble service in making Japan safe for democracy, he has chosen Democracy and the Japanese Government as the subject for the dissertation for the degree of Doctor of Philosophy.

It is the purpose of this book to examine and discuss the influence of our political system upon the political conditions which exist in Japan to-day. This phase of our political prob¬ lems has not received adequate treatment at the hands of writers on the Japanese government. Very often indeed it has been entirely ignored although in recent years it has been touched by a few able writers such as Professor Uyehara and Professor McLaren.

In 1889 when the present Japanese Constitution was adopted the government was in the hands of a minority, and the major¬ ity of the people was outside of the pale of political rights. Severe restrictions on suffrage were placed upon both electorate and candidate for representative of the people. Even to-day, after thirty-one years, a large proportion of the people is still excluded from participation in political affairs by property qualifications.

Under such conditions there can be but little of what is called democratic responsible government; majority rule can hardly be expected. Moreover, the present Constitution of Japan does not recognize the time-honored principle of majority rule applied even to qualified voters, owing to the constitutional checks on the representative of the people. However, the extension of suffrage in recent years has brought about one important change in the Japanese government. It is gradually leading those in power to adopt the national policies along a majority rule.

Throughout this volume the writer frankly discusses the real working of the Constitution in the hope of advancing the cause

VI

Preface of popular government in Japan. The writer’s view is that democratic principles are not repugnant to a monarchical form of government, and that the growth of democratic and respon¬ sible government is not incompatible with the most devoted loyalty to the Imperial Throne. The writer believes that the establishment of democratic institutions in Japan will bring the relation between the sovereign and the people closer than ever before and that it is the only solution in making Japan safe for democracy.

The book was prepared in partial fulfillment of the require¬ ments for the degree of Doctor of Philosophy at Columbia University in the City of New York. The major work in this University was done in Political Science under the direction of Professor Howard Lee McBain. The writer was at the same time studying under Professors Powell and Beard.

The writer wishes to express his special indebtedness to Professor Thomas R. Powell, who has, in the absence of Professor H. L. McBain, read the whole of the manuscript and given many valuable criticisms and suggestions. Acknowl¬ edgments are likewise due to Professor McBain and Professor Munroe Smith, who have also kindly read parts of the manu¬ script giving many valuable suggestions. The writer has also to acknowledge his particular obligation to Mr. P. T. Ward, of Columbia University, for his assistance; to Mr. G. M. Fisher, secretary of the Y. M. C. A. in Japan, for his kindness in reading the manuscript and giving many sug¬ gestions.

Acknowledgment is also due to Miss Frances L. Lurkins, Messrs. S. K. Arima, Jinkitsu Shoji, O. Yamaoka, Y. Fujimaki, O. Otake and O. Inouye, for their kindly assistance in many ways. Lastly the writer offers his sincere thanks to the Ameri¬ can institutions at which he has had the privilege of studying.

Hiroshi Sato

New York City December /, 1920

Democracy and Local Government Chapter 6

Democracy and Municipal Government

Chapter I DEMOCRACY AND THE EXECUTIVE DEPARTMENT

To find out the degree of democracy of a nation, one must study the system of government through which the affairs of the nation are administered. Democracy depends upon a system of fundamental law, namely, a constitution. A govern¬ ment is democratic just in proportion as it responds to the will of the people. If a constitution is erected as a bulwark against public opinion, the government created by it is undemocratic just in proportion as it is inelastic. This follows from the fact that in a society in which the people are really sovereign, a constitution is merely the means of securing the supremacy of public opinion, and not of thwarting it. Hence it necessarily follows that any constitution which is democratic in spirit must yield to change in public opinion.

With this view let us examine the working of the Japanese Constitution rather than its theory. However, to understand the true nature of the Japanese government, one must take into consideration not only the Constitution proper, but its supplementary laws as well.

The government of Japan is in theory an absolute monarchy, in form a limited, constitutional monarchy, and in fact a thoroughgoing bureaucracy. At its head stands the sovereign, who is at the same time the supreme executive, a co-ordinate legislative authority (and, in theory, much more than that), the fountain of justice and of honor, the commander-in-chief of the army and navy, the conservator of peace, and the guard¬ ian of the helpless and the needy. In law, all land is held, directly or indirectly, of him. Technically, the sovereign never dies; there only a demise of the crown, i. e., a transfer of regal authority from one person to another, and the state is never without a recognized head. Article I of the Constitution says: “The Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal.” So far as the Constitutional provisions are concerned, there is no country where the theory of a divine right to rule is acknowl¬ edged to such a degree. No Stuart ever even dreamed of such pretensions.

As to legislative authority, the Emperor exercises his power with the consent of the Diet. 1 And as the Emperor, by Article VI, “gives sanction to laws and orders them to be promul¬ gated and executed,” it naturally and logically follows, accord¬ ing to Prince I to that “he also possesses the power to refuse his sanction.” 2 In respect to this, Dr. Uyehara says: “The sanction of the sovereign to a bill is the final step in Japanese legislation. The Emperor is absolutely free either to give or to refuse sanction. Therefore, it may be said that the Em¬ peror has an absolute veto over all legislation. There is no constitutional way for the Diet to override the veto of the Emperor.” 3 Therefore it seems that there is no particular difference between a constitutional amendment and an ordinary law, except that the former must be initiated by the Emperor and be approved by a two-thirds majority of both Houses. 4 The Emperor is entirely free to block any legislation, whether it is a constitutional amendment or an ordinary bill.

The assertions that have been made represent with sub¬ stantial accuracy the ultimate theory of the status of the Em¬ peror in the governmental system. In respect to the form and practice of that system, however, it would hardly be possible to make assertions that would convey a more erroneous impression. Therefore, to understand the place of the Em¬ peror in the Japanese scheme of government, we must study

1 Article XXXVII.

2 1 to, Commentaries, p. n.

8 Dr. Uyehara, Political Development of Japan, p. 128 .

4 In regard to amendment, Prince Ito says: “The right of making an amendment to the Constitution must belong to the Emperor himself as he is sole author of it.” (' Commentaries, p. ; 40 .) This means that all amendments must be set in motion by the will of the Emperor. The people must wait until the sovereign recognizes the necessity of amending the Constitution.

the real working of the Constitution. The extent of the dis¬ crepancy between theory and fact will become apparent upon an examination into the operations of the executive and the legislative departments of the government.

It is necessary first of all to examine the function of the Cabinet. All administrative functions are carried on by the Cabinet Ministers. The Cabinet in a collective sense has no formal recognition in the Japanese Constitution. Article LV says: “The respective Ministers of State give their advice to the Emperor and are responsible for it. All laws, Imperial ordinances, and Imperial rescripts of whatever kind that relate to the affairs of State, require the countersignature of a Minister of State.” In order, therefore, to obtain any clear conception of the functions of ministers, it is necessary to turn to a group of Imperial ordinances issued in 1885-1889, which are still in force by virtue of Article LXXVI of the Constitution providing that “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.” According to these Imperial decrees, ministers are responsible for all matters falling within their sphere, and are empowered to issue de¬ partmental ordinances, to present for the Cabinet’s considera¬ tion drafts of laws relating to their departments and projects for amendment or abrogation of existing laws, to organize their respective departments, and to delegate to their sub¬ ordinates any of their numerous functions except the counter¬ signing of laws or ordinances, personal reports to the Emperor, voting in the cabinet meetings, and the issue of departmental ordinances.

This raises two questions: first, to whom are the ministers responsible? second, are they responsible individually or collectively? As to these questions, Marquis Ito has explained the text, making a positive statement that the members of the Cabinet are charged with responsibility to the Emperor,

each within the limits of his jurisdiction for every public act of the sovereign. The evil of a system of joint responsi¬ bility would be, Marquis Ito holds, that the power of party combination would ultimately overrule the supreme power of the Emperor. 5

The objection of the framers of our Constitution to joint responsibility of the Ministers is said to be their fear that this would result in encroachment upon the power of the Emperor. Marquis Ito observes:

In some countries the cabinet is regarded as constituting a co-operative body; the Ministers are not held to take part in the conduct of the government each one in an individual capacity, but joint responsibility is the rule. The evil of such a system is that the power of party combination will ultimately overrule the supreme power of the Emperor. Such a state of things can never be approved of according to our Constitution. But with regard to important internal and external matters of State, the whole govern¬ ment is concerned, and no single department can therefore be exclusively charged with the conduct of them. As to the expediency of such matters and as to the mode of carrying them out, all the Ministers of State shall take united counsel, and none of them is allowed to leave his share of the business to be a burden upon his colleagues. In such matters, it would, of course, be proper for the Cabinet to assume joint responsibility . 6

The Imperial Decree of the year 1889 provides that all laws and Imperial ordinances, affecting the administration as a whole, shall bear the counter-signature of the Minister Presi¬ dent as well as that of the Minister from whose Department they directly emanate. It is by this provision and also by the constitutional provision of Article LV, that the Imperial Ordinance dissolving the Diet requires the counter-signature of each of the Cabinet Ministers in order to establish a joint responsibility. When any member of the Cabinet refuses to countersign, the Cabinet cannot dissolve the Diet. 7 Such, at least, is the theory of the law.

6 Commentaries, pp. 94-95.

declaration of war and peace also requires counter-signature of each of the Cabinet Ministers.

It is said that the object of instituting the cabinet system in 1885 was to concentrate the administrative power in the hands of the Minister President, to make him responsible for the general policy of the government by subordinating all departmental Ministers to him and by holding them respon¬ sible only for their respective departments. At the same time, there appeared the additional purpose of making the admin¬ istrative machinery adaptable to the Constitution under contemplation. 8 If these were the motives for adopting the cabinet system, why is it that the power of the Minister President, head of the Cabinet, is so much curtained? If he is responsible, and it is his official duty to see that laws are faithfully executed, should he not have more power—especially the power of appointment and dismissal of his subordinates? As to the appointive power of the Minister President, it has been the custom ever since the creation of the cabinet system for the Minister President to advise the Emperor in the matter of nomination of ministers. So far this practice has never been violated. 9 The Emperor has always accepted the advice of the in-coming Minister President in the matter of appoint¬ ments.

However, we must remember in this connection that his power of selection of Ministers for the Army and the Navy is restricted to a small group of men who are generals and lieutenant-generals in the Army and admirals and viceadmirals in the Navy. The Imperial Ordinance of 1894, promulgated while the Yamagata Cabinet was in power, makes it impossible for any civilian to take the army or the navy portfolio in the Cabinet. 10 Under this system, it has

8 Japan Weekly Mail, April 3, 1896; Prince Sanjo’s Memorial to the Emperor, December, 1885, on organization of the Respective Departments.

•Ex-Minister Ozaki, in conversation with the writer, April 17, 1919. New York, N. Y.

10 Professor Uyehara— Nippon Minken Hattatsu Shi (Development of Political Right of the People), p. 408. It is said that the indifferent attitude by the House toward the Bill when presented before the House was due to the fact that hitherto the posts of Ministers of Army and Navy were always filled by military officers. The House did not at that time think its apathy would bring about such an important result.

been possible, to a large extent, for the Supreme Military Council to control the policy of the Cabinet. An example may serve to make this matter clear. In December, 1912, when the second Saionji Cabinet was in power, the Premier and his associates were forced to resign in spite of the fact that they enjoyed the support of the majority of the members of the Lower House of the Diet. The cause of the downfall of the ministry was the defection from its ranks of the Minister of the Army, General Uyehara, whose resignation came about in consequence of the refusal of the Cabinet to adopt as part of its legislative program for the year an army measure pro¬ viding for the creation of two new divisions. Uyehara exer¬ cised his constitutional right to resign, but the Supreme Military Council made the ministry pay the penalty by re¬ fusing to detail a qualified officer to take his place, which made it impossible to fill the vacancy in the Cabinet and thus forced the Minister President and his colleagues to resign.

Another example may serve to show how impossible it is for the Minister President to resist the military branch of government. When the great naval and military expansion was decided upon after the Russo-Japanese war, the plan had been drafted and the approval of the Emperor had been obtained before the Prime Mininster was informed. “Thus,” says Mr. Ozaki, “Minister President as he was in name, he had no part whatever in the decision on schemes of national defence which are intimately related to the most important affairs of State, diplomacy and finance; but had the honor of being notified of the result only after the question had been finally disposed of by the Emperor.” 11 Thus, although he is legally the head of the ministers and has general control over the various branches of the administration, 12 he is entirely helpless in such a situation; to reject any plan means that he is acting against the will of the Emperor, which has already been expressed.

11 Constitutional Loyalty, Ozaki, pp. 76-77.

12 See Imperial Notification No. 135 issued in 1889 on function of the Cabinet, Article II.

The significance of this practice will be appreciated when it is recalled that the essence of cabinet government is unan¬ imity of its members. If the Cabinet embraces any malcon¬ tent, it is impossible to conduct an efficient administration. An English writer says of this:

It is absolutely necessary that there should be in the conduct of affairs in this country, an avowed and real minister, possessing the chief weight, in the Council and the principal place in the confidence of the King. There can be no rivalry or division of power. That power must rest in the person generally called the First Minister, . . . If it should unfortunately come to such

a radical difference of opinion that no spirit of conciliation or con¬ cession can reconcile, the sentiment of the minister must be allowed and understood to prevail, leaving the other members of the admin¬ istration to act as they may conceive themselves consciously called upon to act under such circumstances . 13

In Japan, as long as the present system prevails, it is im¬ possible even for the recognized leader of a party to construct an efficient cabinet for prosecuting a uniform course of action. The popular elements in Japan welcomed the Cabinet of Hara in 1918, because Hara was the first commoner who ever formed a cabinet. His success was considered a sure victory for parlia¬ mentary government. It was hailed as government by party, but how can it be called a government by party in a true sense, when it contains two hostile members who served under the former Cabinet?

This inquiry into the place of the Army and Navy Minis¬ ters in the Japanese system will lead the reader to ask: “If the Cabinet is not the real working executive organ in Japan, where is the real seat of executive power?” To answer this question, the nature of the Genro, or “invisible government” of Elder Statesmen in Japan, must be taken into account.

The institution which retards the democratic development of constitutional government in Japan more than anything else is the Genro . At present it is more powerful than any other institution, except, of course, the Emperor. It is an entirely

13 Stanhope, Life of Pitt, Vol. IV, p. 24.

extra-constitutional body, d he Elder Statesmen have no official standing in the Japanese Constitution. Therefore, if they participate in the determination of national policies, it is not only a violation of the spirit of the Constitution, but also an encroachment upon the rights of the Privy Council, which has a constitutional standing as the highest deliberative body of the Emperor’s official family. Nevertheless, the Elder Statesmen have, by custom, acquired an enormous power— power to advise and even power to form and overthrow cab¬ inets. It has been the custom to call them into deliberation at every meeting of importance. They have been by custom in a position to nominate the organizer of the Cabinet, namely, the Minister President. Generally speaking, no change of Cabinet is effected nor any treaty concluded without their advice.

In nominating the Prime Minister, the Elder Statesmen are guided by the principle of clan government (Hambatsu Seifu ), that is, they usually recommend to the Emperor as an organizer of the Cabinet a man who is affiliated with one of the two great western clans, namely, Satsuma and Choshu. They recom¬ mend outsiders—party politicians—to organize the Cabinet whenever they think it necessary as, for instance, the recom¬ mendation of Okuma in 1914 and of Hara in 1918.

The abolition of the rule of the Genro presents one of the most vital problems in the development of constitutional government. Such a task is not easy. The frequent impeach¬ ment (Dangai) 14 of super-party cabinets, an increase in the party strength, and political education of the people may decrease the power of the Genro , but these are not enough to destroy the foundations of their strength. At present the most

14 The word “Dangai” does not mean impeachment as it is used in America. How¬ ever the word is often translated “impeachment,” because its use is regarded in Japan as deadly as impeachment. The word really means “right of address* (Dangai Josoan— a proposed impeachment to the throne) by the Lower House to the Emperor censuring specific acts of the government. Dangai must be supported by absolute majority of the members in the Lower House. “Dangai” or impeachment is also used for the resolution of the Lower House censuring some specific acts of the government. But it is the Dangai Josoan that is the most effective.

influential power they exercise is the right of recommending the Prime Minister. If they lose this right, their power will naturally disappear. To eliminate the Genro, therefore, it is necessary to destroy the source of their power. This source is an Imperial Ordinance of 1894 m reference to the appoint¬ ment of army and navy officers to portfolios in the Cabinet. 15 And at present, from the affiliation of the clans with the mili¬ tary and bureaucratic circles, the real power derived from this Ordinance is in the hands of the Elder Statesmen. It is by controlling these army and navy officers that they have the power to set up or overthrow cabinets. Therefore it is impossible to deprive the Elder Statesmen of the right, ac¬ quired by custom, of recommending an organizer of the Cabinet unless the Imperial Ordinance in question is repealed.

Such being the true state of affairs, the actual depository of the real executive power, of which the sovereign is the sym¬ bol, is an extra-constitutional council, the Genro. The mem¬ bers of this organization, by their immense prestige as the founders of modern Japan, virtually exercise sovereign powers in all emergencies of domestic and foreign policies. The Cabinet Ministers are nothing but their secretaries charged with performing the routine of administration under their guidance and supervision.

Besides the Genro there is another political institution which overshadows the power of the Cabinet—the Privy Council. The Privy Council is a deliberative body only so far as the letter of the Constitution is concerned. It is neither a legis¬ lative nor an executive body at all. Article VIII of the Im¬ perial Ordinance of April, 1888, says: “Though the Privy Council is the Emperor’s highest resort of council, it shall not interfere with the Executive.” Therefore, anything that the Council does in the nature of executive, legislative, and ad¬ ministrative work is unconstitutional.

According to the Imperial Ordinance of 1890, which minutely describes its functions, the Council has power to hold its meet-

15 See page 5 and 6 in reference to the power of Prime Minister.

io Democracy and Japanese Government

ings to deliberate and to express its opinion in reference to any important matters, such as treaty making and the proc¬ lamation of the law of siege and all laws supplementary to the Constitution and Ordinances. It is largely due to this provision that the Privy Council can exercise a dominant power over the Cabinet. Although the function of the Council is merely deliberative, so far as the letter of the Constitution is concerned, the Council can practically reject any measure of the Cabinet, since it is the highest advisory council of the Emperor. In fact, therefore, the deliberation of the Council has more weight with the Emperor than that of the Cabinet. In fact, no important legislative measure can be promulgated without the consent of the Privy Council. 16 When the Cabinet wishes to introduce any important measure in the Diet, it is customary for it first to send the bill to the Council which

i

will presumably sanction its introduction. Without securing the approval of the Council in advance, it is useless for the Cabinet to introduce a bill, for if a bill approved by the Diet is later rejected by the Council, the Cabinet will be humiliated, and its efforts, as well as those of the Diet, will become naught. The Cabinet Ministers well understand that the actual opera¬ tion of the government can not be carried on smoothly without the co-operation as well as the sanction of the Council.

The Privy Council in Japan is the equivalent of the Supreme Court of the United States so far as the sole power of inter¬ pretation of the constitution is concerned. All questions of Constitutional interpretation are presented by the government to the Council, since there is no other body which has any legal power in the matter. The Cabinet is the only official channel of communication with the Council. The proceedings and deliberations of the Council are secret, and no outside body is permitted to participate in them. Of course, its decision is subject to the will of the Emperor.

The significance of this power of constitutional interpreta¬ tion in the hands of the Council for the future of democracy

16 There are at present thirty-nine members, of whom ten are Cabinet Ministers.

ii of Japan can be easily seen, especially if the Diet becomes more and more dominant. The popular representatives have no power to participate in the decision of constitutional questions. These are handled by an irresponsible body, which is placed far beyond the reach of the electorate. So far there has been no difficulty in the matter, 17 but with the advance of democracy the Constitution must be interpretated to suit the progress of the day. Especially is this true of the Japanese Constitu¬ tion, in which only fundamental rules of the State are embodied in broad and general language.

The Council also has the power to make and to revoke treaties in conjunction with the Cabinet. In this important function, too, the popularly elected chamber 18 has no power to participate. The Law (. Koshikirei ) provides: “All laws and ordinances which have been approved by the Privy Council must have its signature,” 19 in order that its judgment may have more weight in the decisions of the Cabinet. In like manner, laws and ordinances which have been approved by the Privy Council cannot be amended or changed without its consent. 20 This is an enormous power of the Privy Council, since the Cabinet must get the approval of that body for any important bill or law before presenting the same to the Diet.

Why is such enormous power given to the Privy Council, the members of which are not responsible? They (excepting Cabinet Ministers who are members of the Council) are in no fear of impeachment by the House, since they have no official relation with the House, but only with the Cabinet. 21 Members of the Council are not subject to the interpellation

17 In 1892 in a hard-fought contest with the House of Representatives, the Upper House won for itself an imperial interpretation (in fact a Privy Council decision) to the effect that it had the right to reinsert in the Budget items expunged by the House of Representatives, i. e., that it had equal rights of amendment with the latter. Cle¬ ment Constitution Imperialism in Japan , p. 21.

18 See Imperial Ordinance No. 22, 1888.

19 G. Soyeshima, Present and Future of Constitutional Government, Nippon Oyobi Nippon , January issue, p. 31.

20 Ibid.

21 Regulations of the Business of the Privy Council (Imperial Ordinance, Nov. •22, 1888), Article III.

of the Diet as are the Cabinet Ministers. It would seem that the framers of the Constitution thought that dangerous demo¬ cratic movements could be checked only by creating a Privy Council far beyond the reach of the electorate. They thought that the Cabinet Ministers might sometimes represent a popular will contrary to their interests, and that they might influence even the Upper House by patronage and by some other means. Therefore, the framers may have felt the necessity of finding some institution which would be far beyond the reach of the Cabinet, the Houses and the electorate.

We have seen that the Privy Council is higher than the Cabinet in its relation to the Emperor. Then what will be the attitude of the Cabinet in case of conflict with the Council? In case of a conflict with the Lower House, the Cabinet can dissolve the House; in case of a conflict with the Upper House, the Cabinet can advise the Emperor to swamp the House with the appointment of new members if necessary; but in a conflict with the Privy Council, the Cabinet can neither dis¬ solve nor swamp that body.

Up to this day there has been no serious conflict between the Cabinet and the Privy Council, as both have been and still are occupied by men of the same mode of thinking. For many years past, the Cabinet, with the approval of the Council issued many Imperial Ordinances which have the same effect as law. 22 This power of the Cabinet to issue an Imperial Or¬ dinance in conjunction with the Privy Council is one of the most powerful weapons of the bureaucrats against democracy. Thus, when the Cabinet is on friendly terms with the Privy Council, the Cabinet can easily make laws independently of the Diet by means of Imperial Ordinances.

However, with the development of the parliamentary system, the friendly relation between the Cabinet and the Council will not long continue. There is every indication that the Privy Council will not harmonize with the policy of the

22 For instance, Imperial Ordinance of 1894 and Imperial Ordinance No. 205 in references to civil liberties.