updated on April 25th, 2019
Comparison of Indian and Japanese Constitution
- The modern state of Japan came into existence with the Meiji Restoration in 1868.
- The Meiji Constitution remained in force for 58 years (i.e., from 1889 to 1947). This Constitution was based on the ideals of autocracy, authoritarianism, and monarchy.
- After the Second World War (1939–45), Japan was placed under Allied Occupation from 1945 to 1952.
- The U.S. General Douglas MacArthur was the Supreme Commander of the Allied Powers in Japan. Under his direction, Japan adopted a new democratic constitution in 1946. This Constitution is based on the ideals of democracy and peace, as conceived by the Occupation Authorities.
- The new and the present Constitution of Japan became operative in 1947. It came to be known both as the MacArthur constitution as well as the Showa Constitution. Showa is the title of the reign of Emperor Hirohito and means ‘Radiant Peace.’ At the time of adoption of the new Constitution, Hirohito was the Emperor and Shidehara was the Prime Minister of Japan.
The salient features of the present Constitution of Japan are as follows:
- A Written Constitution Like the American Constitution, the Japanese Constitution is a written Constitution. It contains a Preamble and 103 Articles divided into 11 chapters. It is a unique blend of the American and the British system. The Preamble emphasizes the principle of the sovereignty of the people. The chapters of the Constitution are mentioned below in Table.
Japanese Constitution at a Glance
|Chapter Number||Chapter Title||Articles Covered|
|I||The Emperor||1 to 8|
|II||Renunciation of War||9|
|III||centres and Duties of the People||10 to 40|
|IV||The Diet||41 to 64|
|V||The Cabinet||65 to 75|
|VI||Judiciary||76 to 82|
|VII||Finance||83 to 91|
|VIII||Local Self-government||92 to 95|
|X||Supreme Law||97 to 99|
|XI||Supplementary Provisions||100 to 103|
- Rigid Constitution Like the American Constitution, the Japanese Constitution is a rigid one. It cannot be amended by the Diet (Japanese Parliament) in the same manner as the ordinary laws are made. It can be amended only by means of a special process provided by the Constitution for that purpose. Hence, in Japan, there exists a distinction between constitutional law and ordinary law.
The Japanese Constitution lays down the following procedure for its amendment:
(i) The amendment shall be initiated by the Diet. Such a proposal must be passed by a majority of two-thirds of its membership.
(ii) After that, it is submitted to the people for ratification at a special referendum or a specific election. It must be approved by the majority of the people.
(iii) Amendment when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of the Constitution.
It must be mentioned here that the Japanese Constitution has not so far been amended even once. Thus, the Constitution reads today as it did in 1947.
- Unitary Constitution Like the British Constitution, the Japanese constitution provides for a unitary state. There is no division of powers between the Central and provincial governments. All powers are vested in the single supreme Central Government located in Tokyo. The provinces derive their authority from the Central Government. The Diet can expand or diminish the authority and jurisdiction of the provinces. Thus the provinces are subordinate units of government and enjoy only those powers which are delegated to them by the Supreme Central Government.
- Parliamentary Government Japan has shown a preference for the British Parliamentary System rather than the American Presidential System of Government. The features of the Japanese Parliamentary system of government are as follows:
(i) The Emperor is the nominal executive while the Cabinet is the real executive. The cabinet consists of the Prime Minister as its head and twenty Ministers of State. The Emperor is the head of the state while the Prime Minister is head of the government.
(ii) The party which secures majority seats in the House of Representatives forms the government. The leader of the majority party or majority coalition invariably becomes the Prime Minister.
(iii) The Prime Minister is designated from among the members of the Diet by a resolution of the Diet. The Emperor appoints the Prime Minister as designated by the Diet.
(iv) The Prime Minister appoints the Ministers of State. But, a majority of them should be chosen from among the members of the Diet.
(v) The Prime Minister can remove the Ministers of the state as he chooses.
(vi) The Cabinet, in the exercise of the executive power, is collectively responsible to the Diet. It must resign when the House of Representatives passes a no-confidence resolution.
(vii) The Emperor can dissolve the House of Representatives on the advice of the Prime Minister.
An analysis of the above points makes it clear that Japan (though adopted the British Parliamentary pattern) differed from Britain in the following four respects:
(i) In Britain, the Prime Minister is chosen as well as appointed by the King/Queen, while in Japan, the Prime Minister is chosen by the Diet but appointed by the Emperor.
(ii) In Britain, the Ministers are appointed by the King/Queen, while in Japan, the Ministers are appointed by the Prime Minister.
(iii) In Britain, the Prime Minister cannot remove the Ministers, while in Japan, the Prime Minister can remove the Ministers at his will.
(iv) In Britain, all the Ministers must be members of the Parliament, while in Japan, only a majority of the Ministers must be members of the Diet.
- Constitutional Monarchy Japan is a monarchical state. It is described as a limited hereditary monarchy. The constitution, though it preserves the institution of the Emperor, it deprives him of all powers, privileges, and prerogatives he formerly exercised and enjoyed. It makes the following
provisions with regard to the institution of the Emperor:
(i) The Emperor is the symbol of the state and of the unity of the people. He derives his position from the will of the people with whom resides sovereign power. Thus, the sovereignty of the Emperor is abolished.
(ii) The Imperial Throne is dynastic and succeeded to in accordance with the law passed by the Diet.
(iii) The advice and approval of the Cabinet are required for all acts of the Emperor.
(iv) The Emperor performs only those acts which are enumerated in the constitution and he has no powers related to government.
(v) The Emperor can neither give nor receive imperial property without the authorization of the Diet.
Thus, the Constitution has made the Emperor merely a constitutional head. His authority is strictly limited to ceremonial functions of a constitutional monarch. Like his British counterpart, he only reigns and does not rule.
- The supremacy of Constitution and Judicial Review The Japanese Constitution establishes the principle of supremacy of Constitution. The Constitution is regarded as the supreme (highest or fundamental) law of the land. The laws, ordinances, imperial rescript and official acts must conform to this supreme law. If these are against the provisions of the Constitution, they can be declared by the Supreme Court as ultra-vires and hence, null and void.
Thus, the American principle of judicial review is adopted in Japan. But there is a difference. The American Supreme Court does not derive its power of judicial review from the Constitution, whereas the Japanese Supreme Court derives its power of judicial review directly from the Constitution. Article 81 of the Japanese Constitution specifically says that the Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation, or official Act.
- Fundamental Rights The Japanese Constitution provides for rights on the model of the Bill of Rights in the USA. It guarantees a large number of civil, political and economic rights to the people of Japan and declares them as ‘eternal and inviolate’. The judiciary headed by the Supreme Court acts as the protector of these rights through its power of judicial review.
The rights provided by the Japanese Constitution are more elaborate and definite than the American Bill of Rights. Out of a total of 103 Articles in the Constitution, 31 Articles (i.e., 10 to 40) are devoted to the rights and duties of the people. The rights provided for in the Constitution are:
(i) Right to equality.
(ii) Right to freedom.
(iii) Right to freedom of religion.
(iv) Right to private property.
(v) Economic rights.
(vi) Right to education.
(vii) Cultural rights.
(viii) Right to constitutional remedies.
- Renunciation of War The Japanese Constitution renounces war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. It prohibits Japan from maintaining land, sea, and air forces, as well as another war potential. It also does not recognize the right of belligerency of the state.
Japan is the only modern state which has constitutionally renounced war forever. It is the most peculiar as well as the most controversial feature of the Japanese Constitution. This provision was got inserted into the Constitution by General MacArthur to see that Japan would never again be allowed to act as a military nation as it did during the period of 1931 to 1945 and to abolish forever the power of Japan as a rival to the US in the far east. However, it does not mean that Japan cannot use arms and other forces for its security and defence. Like any other modern state, Japan has its defence capabilities but the term used is ‘self-defence forces’ to look constitutionally correct. They are justified on the ground that every state has an inherent right to defend itself against foreign aggression.
- Bicameralism The Japanese Diet is bicameral, that is, it consists of two houses namely the House of Councillors (upper house) and the House of Representatives (lower house). The House of Councillors consists of 252 members elected for a term of six years. Out of the total 252 members, 152 are elected on a geographical basis (local constituencies) and the remaining 100 are elected by the nation at large (national constituency). The House of Representatives consists of 512 members elected for a term of four years. The House of Representatives has more powers than the House of Councillors, especially in financial matters.
Constitutionally, the Diet is the highest organ of state power and is the sole law-making organ of the state.
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