China’s forgotten role in shaping Japan’s pacifist constitution

Japan designates 3 May as Constitution Memorial Day, a public holiday. The Constitution of Japan was promulgated on 3 November 1946 and came into effect on 3 May 1947, meaning that 2027 will mark its 80th anniversary.

While the Sanae Takaichi government has shown a willingness to pursue constitutional revision, there has yet to be sufficient debate over which specific provisions should be amended and how. Even so, support for constitutional revision is gaining momentum within Japan.

This probably stems from a simple reality: in the nearly 80 years since the Constitution was drafted, not a single word has been altered, creating a sense of incongruity. If the Constitution is regarded as a social contract between the state and its citizens, then over 80 years, the electorate has almost entirely changed, yet the contract itself has never been renegotiated.

However, there remain a considerable number of cautious views regarding revision of Article 9, which says: “Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.” There is a fairly widespread consensus within Japan that “general constitutional revision” and “revision of Article 9” ought to be distinguished from each other.

The process through which the Constitution of Japan was drafted differed from that of most countries. In other words, it was formulated while Japan was a defeated nation, with the involvement of foreign powers. One important mechanism of outside involvement was the Far Eastern Commission (FEC), established in the US and composed of representatives from Allied nations. Chinese representatives also participated in the commission, which deliberated on the contents of Article 9.

On 2 July 1946, the FEC proposed in its Basic Principles for a New Japanese Constitution that the principle: “Ministers of State must be civilians” should be written into the Constitution. This was clearly motivated by concerns over a revival of Japanese militarism.

Indeed, during the pre-war period, as the influence of the military expanded, several prime ministers had been military officers. However, the Japanese government rejected the proposal on the grounds that paragraph 2 of Article 9 in the draft constitution already explicitly prohibited the maintenance of armed forces, making the inclusion of a “civilian clause” unnecessary. This rebuttal was ultimately accepted by the FEC.

Subsequently, however, the situation changed. In the Japanese Imperial Diet, Hitoshi Ashida, Chairman of the House of Representatives Subcommittee on Revision of the Imperial Constitution, proposed a revision to the wording of Article 9 by inserting the phrase “In order to accomplish the aim of the preceding paragraph” into Paragraph 2. Before this amendment, Paragraph 2 had stipulated that Japan would “not maintain any war potential, and the right of belligerency will not be recognised”.

The proposed amendment sought to revise this to mean that “land, sea, and air forces, as well as other war potential, will not be maintained (for the purpose of ‘war as a sovereign right of the nation and the threat or use of force as means of settling international disputes’).” In other words, this was a crucial amendment proactively proposed by the Japanese side.

On 21 September 1946, the 27th meeting of the FEC convened in New York. Representatives from 11 countries, including the US, the Soviet Union, the UK, France, the Netherlands, Australia, India, and China, attended the meeting. China’s representative was Tan Shaohua.

Regarding the Ashida amendment, Tan said: “That is to say, there is a danger, if Japan is allowed to maintain armed forces for other purposes than those enumerated there, that means there is a possibility for Japan to employ such armed forces under certain pretexts, such as, for instance, self-defence.”

Later in the meeting, he added, “Nevertheless, Japan could use it for other purposes. By the time they are ready to use it, I imagine it would not be an act of war but as an act short of war and, therefore, not a violation of the Constitution.”

Thereafter, Japan established the Self-Defence Forces. It may be said that Tan’s prediction was largely borne out, and his insight deserves high recognition.

Despite Tan’s objections, the Ashida Amendment was nevertheless approved by the FEC and ultimately became Article 9, Paragraph 2 of the Constitution. However, at the proposal of China, the Soviet Union, and others, the FEC decided to incorporate the requirement that “Ministers of State must be civilians” into Article 66 of the Constitution, and notified the Japanese government of this decision. This was precisely the provision that the Japanese government had previously rejected on the grounds that Article 9, Paragraph 2 already prohibited armed forces. Yet with the passage of the Ashida Amendment, the “civilian clause” was reintroduced into the Constitution.

It may therefore be said that the Constitution of Japan was the result of repeated negotiation and coordination between Japan and the Allied powers, including China. Subsequently, Japan restored its sovereignty through the San Francisco Peace Treaty and other arrangements, rejoining the international community. The Constitution also stipulates procedures for constitutional amendment, and this provision too, was incorporated based on unanimous agreement among the Allied nations represented on the FEC.

However, within Japan, the discussions that took place within the FEC during the drafting of the Constitution, as well as the perspectives and opinions of the international community at the time, have not been sufficiently understood or remembered. Therefore, when discussing the Constitution of Japan, it is necessary to return to this historical starting point, while also reconsidering the Constitution’s position as the present-day social contract between the state and its citizens.

This article was first published in Lianhe Zaobao as “回顾日本国宪法制定过程”.

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