This is an indispensable reference work for the study of Japan and Japanese law in English. The Constitution is the document at the centre of Japan’s transformation from a country ruled by a divine emperor to one ruled by a sovereign people. It touches nearly every aspect of people’s lives, from marital relations to national defence. The book is organised in 11 chapters, one chapter to cover each of the chapters in the Constitution itself. The text runs to 325 pages before reaching eight appendices with basic source documents.
Professor Jones is well known to foreign students of Japanese law. His essays, journal articles, and other writings often bring fresh perspectives to overlooked areas of the law. His talent as a writer matches his stamina as a researcher, so he often breathes life into otherwise dull and dusty corners of the law. Among his many writings, he has even co-authored a “hornbook” on Japanese law in English.
With this volume, Jones becomes the conductor of a symphony that features performances by 13 scholars, seven Japanese and six foreign, each assigned to specific topics. As the conductor, he ensures consistency of structure and content. Each chapter provides explanations of constitutional text along with summaries of academic theories and other commentary, and reports on leading cases. Authors also describe analogous provisions of the Meiji Constitution, providing a comparative framework to help readers appreciate the great significance of Japan’s post-war constitutional revolution. The book works well both as a general overview for non-specialists and as a reference for serious researchers seeking guidance for additional study.
Of necessity, the chapters are dense and brief. When the book appeared, Japan had already experienced more than 75 years of constitutional conflict—in and out of the courts—and Japanese experts had produced an immense library of formal legal commentary. At the same time, reporting of newsworthy cases and commentary on constitutional issues has been a regular feature in Japan’s lively mass media and other fora.
Professor Jones assigned the crucial opening chapters to himself. After a brief nod to the Preamble, he addresses Chapter One, which concerns the most important issue confronted by the Constitution’s drafters: how to retain the emperor but convert him from a living god into a mere symbol of the nation. Jones covers critical issues such as the limitation of the imperial role to ceremonial matters with no political power and the rules governing succession. Regarding the latter, he explains the narrow definition of the Imperial House and the ongoing crisis of the paucity of potential heirs.
Jones also wrote Chapter Two, which is composed of a single provision, Article 9, which documents the wartime victors’ demand that Japan be permanently disarmed. Jones describes the tortuous history of Japan’s defence policy, from the absolute prohibition of war potential in the early post-war years to the gradual arms buildup that followed and ultimately led to legislation that approved “collective self-defence” in 2015.
The contradiction between the strict language of Article 9 and the reality of today’s Self-Defense Forces, one of the world’s most powerful militaries, may drive some to conclude that Article 9 has been rendered meaningless, but Jones finds meaning. He writes, “the constitutional norms expressed in Article 9 and, together with the historical experience of war and occupation that gave birth to it can be said to have had broad ramifications on postwar policy, culture, and law.” His investigation of some of these ramifications is quite worthwhile.
As one might expect, the longest chapter by far is Chapter Three, which concerns individual rights. This is the constitutional text that seeks to guarantee the survival of a democratic society by staking out zones where government agents are forbidden entry. It is the most frequent site of conflict between citizens and their government. Chapter Three’s territory is vast. In addition to its guarantees of fundamental liberties like freedom of speech, religion, choice of occupation, and others, it also provides rules that govern other important matters like marriage and criminal procedure. Because the constitutional text is terse, the courts play a major role in deciding Chapter Three’s scope of application. Multiple authors guide readers through key Supreme Court precedents, often providing factual detail necessary to understand why litigants were driven to the courts for help. In addition to descriptions of the judgments themselves, in some cases, readers find samples of the rhetoric employed by justices to suggest pathways to possible future judgments.
The opening articles in Chapter Three set out a potentially limitless scope of protection for individual rights. The resounding declarations of Article 13—stating that the people shall be respected as individuals and the rights to “life, liberty, and the pursuit of happiness” shall be “the supreme consideration in legislation and other governmental affairs”—stand out. The authors describe the enormous potential of this language: “even if rights and freedoms are not stipulated in the constitution, legal interests that are considered worthy of protection due to social changes are understood to be human rights guaranteed under the constitution as ‘new human rights’.” The authors describe Article 13 as the source of rights to privacy, “personal rights,” the right to self-determination, legal recognition of same-sex marriage, and other rights, making this one of the most thought-provoking sections of the book.
Articles 12 and 13 do temper our expectations by including the limitation that rights exercises must be restricted to those that conform to the “public welfare.” In his section, for example, Professor Shigenori Matsui describes the Supreme Court’s use of public welfare interests to limit freedom of expression otherwise guaranteed by Constitution Article 21.
Articles 31 through 40 address basic constitutional protections for persons accused of crime. Readers of these provisions find uplifting expressions such as “no person shall be detained without … the immediate privilege of counsel” and “no person shall be compelled to testify against himself.” This chapter quietly explains that, in practice, many of these words have been drained of meaning.
Thus, for example, Constitution Article 34 guarantees the “immediate privilege of counsel,” but Professor Mari Hirayama cautions that “in practice, significant restrictions are imposed on attorney–client contact, particularly during pre-charge interrogations.” Significant indeed. Suspects are not allowed to bring attorneys into the interrogation room. Thus, the suspect’s most important protection is stripped away.
What about the right to remain silent? Professor Hirayama explains that “since pre-charge interrogation is a category of investigative tool, even if a suspect in custody exercises his right to remain silent, interrogators can continue to interrogate him and there is no right to have a lawyer present during interrogations.” In a landmark judgment, the Supreme Court Grand Bench has ruled that suspects must submit in this manner (Supreme Court of Japan, 1999).
Constitution Article 38 (2) states that “confessions made under compulsion, torture, or threat, or after prolonged arrest or detention shall not be admitted in evidence.” Many have questioned whether this rule is honoured more in the breach than in observance. Here, the text explains that “at some trials, the voluntariness of confessions may be a significant point of dispute. However, having confessed, the burden of proving coercion generally falls on the defendant.”
Of course, Professor Hirayama is bound to describe Japan’s criminal procedure as it exists rather than as some of us think it should be. The text does mention that Japanese procedure is commonly described as “hostage justice,” meaning that suspects are often detained in police jails until they confess. It also notes that the practice has been criticised by international organisations. In a study based on interviews with numerous participants in the criminal justice system, Human Rights Watch has summarised the practice with these words: “Often, confessions are the result of coercion. The extended pre-trial detention, the prohibition on lawyers being present during interrogation, and the nearly automatic conviction rate for cases that go to trial foster an environment for involuntary confessions” (Human Rights Watch, 2023).
There is much more detail concerning Constitution Articles 31 through 40, but readers seeking a deeper understanding of Japan’s criminal justice system must consult additional sources, including reports by international human rights treaty bodies that condemn Japanese practices.Footnote 1
Chapters Four and Five report on the rules that govern the operation of the Diet and the Cabinet. Article 41 declares that the Diet is “the highest organ of state power, and shall be the sole lawmaking organ of the State.” This wording looks simple and clear, but Professor Koji Higashikawa warns us that there are riddles behind even basic terms like “state power” and “law.”
Why is the Diet the “highest”? The prevailing theory is that Diet members are elected by the people, who hold sovereign power. If the Diet is the highest government office, then rules governing its composition and powers are of the greatest importance. Professor Higashikawa leads us through the complex package of constitutional provisions that create the bicameral structure, the qualifications and terms of office of Diet members, scheduling of Diet sessions, quorum and voting rules, and other rules governing the Diet’s operation.
The Diet’s status as the “sole lawmaking authority” establishes its superiority to the Cabinet and administrative offices, which can issue administrative regulations and orders, but only to the extent that they are empowered to do so by legislation passed by the Diet.
Article 57 concerns the transparency of the Diet’s operations. It requires that “Deliberations in each House shall be public” and that each House shall keep a record of proceedings which is open to the public. The Japanese people often watch these deliberations at home on television or through other means.
Advocates of government transparency are surely pleased with Article 57. But Professor Higashikawa explains that the system is far from perfect. He writes that the principle of open meetings has not been realised because it is understood to apply only to plenary meetings, where no real debates take place. Committee meetings, where opinions are more openly expressed and the real work is done, generally take place behind closed doors.
Chapter Five concerns the Cabinet, the centre of administrative and executive power. It establishes the prime minister as the head with power to appoint and remove other Cabinet ministers. After setting out the rules that govern the selection of the prime minister, this chapter describes the “administrative power” wielded by the Cabinet, citing Article 73, which provides a list of specific functions. Professor Jones, the author of Chapter Six, directs readers to look to the Cabinet Act for more detailed rules. He also provides an inside look at Cabinet operations with his brief description of regular Cabinet meetings and the formalisation of Cabinet decisions through resolutions (kakugi kettei), which must be signed by all ministers of state.
As for controversies, he cites the 2014 Cabinet resolution that overturned the longstanding interpretation of Constitution Article 9 and the 2020 attempt to retain a politically favoured prosecutor who had reached statutory retirement age. Many people think the latter incident was directly related to Prime Minister Shinzo Abe’s resignation later that year.
Chapter Six concerns the judiciary. After guiding us through the radical change that occurred with the shift from judges subject to justice ministry control under the Meiji Constitution to the independent status of the judiciary today, the authors deliver an article-by-article commentary.
Article 79 establishes the modern Supreme Court, vested with “the whole judicial power,” rule-making powers, administration of judicial affairs, and other authority. The most radical change imposed by the Constitution appears in Article 81, which grants the Court the power to overrule laws passed by the Diet, the “highest organ of state power.” Meiji Constitution judges did not possess this “judicial review” power, which is today exercised even by lower courts.
The Supreme Court has overruled the Diet only rarely. The authors of this chapter dutifully list the ten cases in which the Court held a law or regulation unconstitutional as of the book’s publication date, along with a brief description of 13 cases in which the Court ruled that a law or regulation had been applied in an unconstitutional manner.
The authors wisely avoid the well-trodden ground of speculation about the Court’s “conservative” nature, instead focusing on a more useful discussion of the Court’s various techniques in dealing with sensitive cases that involve potential conflict with the elected branches of the government. The authors explain, for example, that the Court sometimes deems constitutional guarantees to be essentially mandates to the legislature. In some cases where the Court dismisses constitutional challenges, it nonetheless issues “ringing statements of constitutional principles” to be studied by all. For those of us who scratch our heads when we see attorneys filing constitutional challenges with little or no hope of success, the text helpfully explains that such litigation is “better understood as a form of lobbying activity.”
There is very little detail regarding the qualifications of Supreme Court justices or court structure and operation in the Constitution itself. For this information, we must look to the Court Act, adopted less than one month before the Constitution took effect in 1947. The Court Act creates the distinctive structure of the Supreme Court, with its 15 justices allocated to three “petty benches,” which handle the overwhelming majority of cases, and the en banc “grand bench,” which is called into action only in extraordinary cases.
The Court’s direction is undoubtedly driven by the individuals selected to serve as justices. The authors provide a good description of the arcane (and largely unwritten) practices that govern the pathway to appointments to the nation’s highest court.
Article 82 requires that “trials shall be conducted and judgment declared publicly.” Here, the authors quote the Supreme Court’s explanation in a 1989 judgment that the purpose of this provision is “to ensure that trials are conducted fairly (as a system)” and “thereby ensure public confidence in trials” (Supreme Court of Japan, 1989). The Court’s broad statement opens the door to discussion of what measures might best ensure trial fairness and public confidence, and also implies that greater openness would serve those interests.
But the authors suggest that, in subsequent judgments, the courts have done little to explore this possibility, quickly stating that “in practice, this means the general public is free to observe trials.” As a result of the 1989 judgment in the Courtroom Notes Case, courtroom spectators are ordinarily allowed to take notes as they observe proceedings, but the text suggests there have been no significant steps to enhance openness since.
Regarding the measure most likely to enhance public understanding—access to court records—the authors summarily declare that “the right of the public to observe trials does not extend to access to trial records,” citing Supreme Court judgments rejecting challenges to denials of access to court records in criminal trials. These judgments suggest that the Court does not truly seek to maximise public confidence in trials but is driven by other concerns.
Chapter Seven addresses indispensable provisions related to public finance, including the Diet’s sole authority in creating taxes and approving expenditures. Of particular interest in Japan’s case is Article 88, which concerns the Imperial House, requiring that all related property belong to the state and that expenses must be appropriated by the Diet, and Article 89, which prohibits the expenditure of government funds for any religious or other institution not under the control of the government. Professor Frank S. Ravitch summarises that, alongside Article 20, this is “an additional barrier against government support for religion.”
Chapter Eight concerns local government. There was no equivalent in the Meiji Constitution. Professor Toru Enoki explains the great significance of this chapter as “part of the political democratization that formed a keynote of the new Constitution.” Democratic features include the direct election of the heads of local governments and legislative assemblies by residents for the first time in Japan’s history and the use of referenda which enable residents to vote directly on issues of importance. Although referenda are not legally binding, they nonetheless provide residents with a forum to express their beliefs directly.
Professor Enoki explains the functions of local government entities and the significance and enforceability of ordinances adopted by legislative assemblies, as well as their relationship to national law. Despite the autonomous nature of local governments, he also tells the story of the great influence traditionally wielded by central government bureaucrats in local matters through control of funding, secondment of personnel, and other means. He writes that Elements of the prewar system of top-down control remained, with local government officials “devoting much of their time and energy to implementing national government policies and programs.”
He also brings the story forward to the contemporary movement to return more authority to local governments, especially with the 1999 amendments to the Local Autonomy Act, which establish “greater definition and transparency” in relations between the national government and local governments. Additional detail is found in the Local Autonomy Act.
Chapter Nine sets out the rules governing constitutional amendments. Professor Tetsuji Matsumoto works through the fine detail of the amendment process while noting that the rules set a high bar that has never been surmounted. For reference, he provides a brief list of well-known constitutional revision proposals, including the comprehensive set of proposals published by the Liberal Democratic Party in 2012 (Liberal Democratic Party, 2012).Footnote 2 He also engages with other issues, such as the various theories concerning limits on the amendment power.
The final substantive provisions are found in Chapter Ten. Several are of the most fundamental importance: the Constitution is the supreme law, the emperor and ministers of state are bound to respect and uphold it, and fundamental rights are “to be held for all time inviolate.” Many have questioned why such basic principles appear at the end of the Constitution rather than at the beginning. Professor Andrea Ortolani works through various issues raised by the constitutional text and its location and neatly connects the broad declarations of these provisions to other broad statements of rights that appear in Article 11 and elsewhere.
Professor Ortolani points out that the contradiction between these provisions and language in the Meiji Constitution could not be more extreme. In place of the subjects who bore allegiance to the emperor under the Meiji Constitution, we find a complete role reversal: the emperor owes allegiance to a new Constitution created under the authority of the former subjects, now a sovereign people.
This review gives only a hint of the grand scope covered by this “Handbook.” Professor Jones and his colleagues have made a major contribution by providing so much information on Japan’s supreme law in the English language. Their Handbook belongs in every library concerned with the study of contemporary Japan.
