An Inoffensive Rearmament (11 page)

Baron Shidehara was later quoted on numerous occasions to have said that he originated the constitutional ban on war. Dr. Matsumoto, however, has maintained
that Baron Shidehara claimed he originated the “no war” provision as a fiction and that the Japanese constitution was actually written by his cabinet. In a letter to Dr. Kenzō Takayanagi, chairman of the Japanese Commission on the Constitution,
⁴
on December 15, 1958, General MacArthur confirmed that the prime minister proposed inserting a provision in the constitution banning war, but he left in doubt the question of who was responsible for including the provision outlawing military forces.

After his conversation with General MacArthur, Baron Shidehara called a series of cabinet meetings to discuss Dr. Matsumoto's proposals for a new constitution. During these deliberations, it seems that the prime minister failed to acquaint the cabinet with the substance of his conference with the supreme commander. In any case, though Baron Shidehara may have favored a disarmament clause for the constitution, he did not suggest such a provision to his colleagues. Matsumoto's draft, which later was presented to SCAP and was leaked to the
Mainichi Shimbun,
did exactly the opposite. It clung tenaciously to the past and tried to preserve as much as possible of the traditional views. Interpreting his instruction broadly, Dr. Matsumoto essentially produced simply a revision of the Meiji constitution and not in any sense a drastic one. The draft contained, among other proposals, a provision that the emperor should retain “supreme command of the Armed Forces.” The draft was accompanied by an “explanation” that included a statement hopefully leaving the door open for eventual rearmament. This statement in part suggested that “Even if the time should arrive, when, upon the completion of the Allied Occupation, Japan is permitted to rearm, the Armed Forces would be of very limited scope such as one necessary for the maintenance of peace and order in the country. However, the nation on its own part should have no intention of having any Army or Navy such as it had before.”

Though the emperor in the Matsumoto draft retained supreme command of the military, the constitutional revisions incorporated adequate controls so that the military could not in the future establish independence or precedence over civilian authority. It would seem, then, that the Matsumoto draft satisfied the requirements of the secret instructions the secretary of state had sent to General MacArthur's political adviser and the views of the SWNCC policy paper sent to the supreme commander for his information. If the United States did not desire the Japanese government to outlaw war and renounce having armed forces, but only to ensure that in the future the military was controlled by civilian authority, the Matsumoto draft was a satisfactory basic document.

Events that followed the publication of the Matsumoto proposals in the
Mainichi Shimbun
clearly demonstrate that the occupation forces were thoroughly dissatisfied with the Japanese revision effort. Following strong press criticism, on February 1 SCAP Headquarters requested early action from the cabinet on its proposals. It was February 8, however, before Dr. Matsumoto presented his draft to the SCAP Government Section. Impatient with the Japanese maneuvers and acting apparently on the newspaper version, General MacArthur decided that the cabinet had failed to meet the requirements of the Potsdam Declaration. He ordered Brigadier General Courtney Whitney, head of his Government Section, to write a new constitution as a guide for the Shidehara cabinet. Emphasizing his views on total Japanese disarmament, General MacArthur, in a short note on February 3, five days before the Matsumoto draft arrived at SCAP, directed General Whitney that the constitution include a provision as follows:

War as a sovereign right of the nation is abolished. Japan renounces it as an instrument for settling its disputes and even for preserving its own security. It relies on the higher ideals which are now stirring the world for its defense and protection. No Japanese Army, Navy, or Air Force will ever be authorized and no rights of belligerency will ever be conferred upon any Japanese Force.

There certainly was no question what the supreme commander wanted in the new Japanese constitution. If the views of the U.S. government were different from those of its commander in Japan, those views never modified General MacArthur's instructions. His personal note was changed somewhat by his staff so that when the draft of the new constitution was completed by the Government Section,
Chapter 11
read,

RENUNCIATION OF WAR

Article VIII. War as a sovereign right of the nation is abolished. The threat or use of force is forever renounced as a means of settling disputes with any other nation.

No Army, Navy, Air Force, or other war potential will ever be authorized and no rights of belligerency will ever be conferred upon the State.

On February 13, General Whitney carried the American-drafted constitution to the members of the cabinet. He advised the Japanese government that Dr. Matsumoto's proposals were completely and totally unacceptable. Moreover, he made it clear that the supreme commander wanted the Japanese to use the American draft as a guide in writing the new constitution. The Japanese were shocked. They fought the American document article by article.

The opposition rallied around the leadership of Shigeru Yoshida, who at the time was foreign minister in the Shidehara cabinet. Yoshida was determined to salvage as much as possible of the Meiji constitution, arguing that it should be revised rather than discarded in favor of a completely new document. As the debate on the Japanese side continued, Baron Shidehara apparently was convinced that there was no hope for compromise. Yoshida disagreed. Finally, Shidehara and Yoshida approached SCAP trying to revive the Matsumoto draft. General MacArthur was adamant. The stalemate on the Japanese side is said to have been finally cracked by Emperor Hirohito, who personally urged Shidehara and Yoshida to accept the principles laid down by the occupation forces.

On March 6, 1946, a slightly revised version of the American draft was adopted by the Shidehara cabinet and presented to the Japanese people. General MacArthur gave the document his “full approval,” lauding Article 9 (previously Article 8 in the American draft) with the statement, “By this undertaking and commitment Japan surrenders rights inherent in her own sovereignty and renders her future security and very survival subject to the good faith and justice of the peace loving peoples of the world.”

During the discussion in the Diet, there was deep concern regarding the meaning of Article 9. Members wanted to know whether Japan by this provision was, in fact, renouncing the inherent right to self-defense and was banning armed forces even for self-defense. Yoshida, who in the meantime had become prime minister, responded on June 26, 1946, to these questions in the Diet as follows:

The provision of this draft concerning the renunciation of war does not directly deny the right of self-defense. However, since Paragraph 2 of Article 9 does not recognize any military force whatsoever or the rights of belligerency of the state, both wars arising from the right of self-defense and the rights of belligerence have been renounced. The recent war was largely fought in the name of self-defense . . . one of the serious
suspicions or misunderstandings about Japan today is that Japan may endanger world peace by rearming and fighting a war of revenge at any moment. I believe that the first thing that we must do today is to correct this misunderstanding before anything else.

In this statement, Prime Minister Yoshida made it clear that the official position of the Japanese government was that Article 9 prohibited rearmament even for self-defense. Nevertheless, Hitoshi Ashida, chairman of the House of Representatives Committee on Constitutional Reform (Shūgiin Kenpō Kaisei Iinkai), proposed two amendments (shown in italics below) to the clause renouncing war, changing Article 9 to read:

Aspiring sincerely to an international peace based on justice and order,
the Japanese people, forever, renounce war as a sovereign right of the nation, or the threat or use of force, as a means of settling disputes with other nations.

In order to accomplish the aim of the preceding paragraph,
land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

It is interesting to note that the amendments were taken to SCAP for clearance. General Whitney discussed the implications of Ashida's changes with his staff and was aware that the new phrase might be interpreted to mean that in the future Japan could establish a self-defense force. He nevertheless approved the amendment. Five years later, Ashida claimed that it was his intent precisely to modify Article 9 so as to permit self-defense forces in the future. If that in fact was his intent, he never publicized his views during the six-month debate that went on in the Diet. Moreover, Prime Minister Yoshida consistently held the position that the maintenance of armed forces, even for self-defense, was denied by Article 9.

After the most searching deliberations in the Diet and extensive discussions in the press, the House of Representatives passed the new constitution on October 7, 1946, and the House of Councillors (Upper House) passed it on October 29, 1946. The constitution was promulgated on Emperor Meiji's birthday, November 3, to go into effect six months later on May 3, 1947.

There is no doubt that the Japanese resisted their constitution. They did not want it. It was forced upon them by the supreme commander over their most
serious objections. When Dr. Matsumoto tried to include a loophole that would permit limited rearmament at a future date, presumably after a peace treaty, General MacArthur personally stepped in to direct that “no Japanese Army, Navy, or Air Force will ever be authorized.” The idealism engendered by this forced feeding crumbled when Japan regained a measure of its independence.

For several years after the constitution was adopted, it was the well-publicized view of the United States and the Japanese government that Japan could not rearm. Article 9 was uniformly accepted as a prohibition against rearmament. This view of course was shattered in 1950 when American occupation forces moved from Japan to Korea. Faced with a completely disarmed Japan, General MacArthur ordered Prime Minister Yoshida to organize, equip, and train a so-called National Police Reserve. Through American channels he directed our military to organize, train, and deploy a Japanese military force of four infantry divisions. This force would in time be armed with rifles, machine guns, mortars, tanks, artillery, rockets, and aircraft.

The attempt to justify such an organization and such armament in the face of the legal prohibitions of the constitution and the legislative record made during the 1946 debates in the Diet was pure sophistry. I had a difficult time trying to keep up with the sleight of hand that the Japanese judges, officials, and people employed to make Article 9 disappear, but as far as the Americans were concerned, no one gave the Japanese constitution a moment's thought. General MacArthur's noble experiment of 1946 went up in a puff of smoke in the war environment of 1950.

While the successive conservative governments passed through several deplorable stages trying to justify the legality of the new military forces, initially contending that the NPR was not an army, later arguing that in the modern world a nation that did not have nuclear weapons did not possess armed forces, and finally maintaining that Japan possessed the inherent right to defend itself, the opposition political parties insisted nonetheless that the constitution was being violated. Following the establishment of the NPR and the stationing of American military forces in Japan after the peace treaty, numerous attempts were made to bring the constitutional questions to courts. In March of 1959, at the height of controversy over the revision of the security treaty, the Tōkyō District Court ruled that the establishment of American bases in Japan was unconstitutional. Our forces nevertheless remained in Japan and in December the Japanese Supreme Court reversed the decision of the Tōkyō District Court, ruling that having American military
forces stationed in Japan did not violate the constitution. On the question of the constitutionality of the Japanese military forces, there were no definitive findings until 1961, when the Japanese Supreme Court ruled that a nation possesses the inherent right to defend itself against attack. These decisions, however, have been unacceptable to a large segment of people, and the opposition parties continue to resist expansion of the armed forces and the stationing of American troops in Japan.

In addition to Article 9, there are two other articles in the constitution that posed and still present serious legal obstacles to any rearmament program. These are:

Article 18. No person shall be held in bondage of any kind. Involuntary servitude except for punishment of crimes is prohibited.

Article 76. The whole Judiciary power is vested in a Supreme Court and in such inferior courts as are established by law.

No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given judicial powers.

All judges shall be independent in the exercise of their conscience and shall be bound by this Constitution and the laws.

Article 18 prohibits involuntary servitude. This is interpreted to mean that there can be no compulsory service in the armed forces. There can be no draft or universal military service. Even in an emergency or war, no one can be drafted into the military forces. Up until recent times, though there have been some problems, the Japanese have experienced no critical difficulties in recruiting for the limited forces the country maintains. What will happen if there are not enough volunteers to fill the future military requirements is anyone's guess. It is difficult to believe, however, that a nation of 100 million people can indefinitely continue under a constitutional restriction that prohibits a draft in time of war.