1994
|Full Draft
NISHI Osamu
西修
NISHI Osamu1 Seminar, Komazawa University
A Draft of the Heisei Constitution2
November 3, 1994
Preamble
From May 3, 1947, the day the Constitution was enforced, until today, the state of affairs at home and abroad has changed enormously. Japan recovered from the ruins of defeat and it became an affluent country thanks to the diligence of the [Japanese] people. Fundamental rights were established among the people. The direction that [our country] was moving in was something that we welcomed.
On the other hand, the harmony between economic prosperity and spiritual prosperity, familial ties, carrying on our cultural heritage, protecting the environment and ecosystems, our contribution to international peace, the realization of social justice, and better social welfare are of vital importance.
We have reflected on the changes that occurred after the Constitution was enforced and will enact a new constitution which acknowledges the fundamental principles in the Constitution of Japan, such as the sovereignty of the people, enduring peace, and respect for fundamental human rights.
We will look critically at our past and wish and desire happiness for our people today and in the future. We pledge upon our national honor to do our utmost to achieve these noble goals.
Chapter I. The Emperor
Article 1.
The sovereignty of the state resides in the people. The Emperor shall be the symbolic head of state, deriving his position from the wishes of the people.
Article 2.
The Imperial Throne shall, regardless of sex, be dynastic and succeeded to in accordance with the Imperial House Law passed by the Diet.
Article 3.
The Emperor shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government.
(2) The advice and approval of the Cabinet shall be required for all acts of the Emperor in matters of state, and the Cabinet shall be responsible therefor.
Article 4.
If the Emperor is underage or in cases stipulated in the Imperial House Law, a Regency may be established.
(2) The provisions of the preceding article shall apply to the acts of the Regent.
Article 5.
The Emperor shall appoint the Prime Minister as designated by the Diet.
(2) The Emperor shall appoint the Speaker of the Diet as designated by the Diet.
(3) The Emperor shall appoint the Chief Judge of the Supreme Court as designated by the Cabinet.
Article 6.
The Emperor, with the advice and approval of the Cabinet, shall perform the following acts in matters of state, in addition to public functions as the symbolic head of state:
1. Promulgation of amendments of the constitution, treaties, laws, and cabinet orders.
2. Convocation of the Diet.
3. Dissolution of the Diet.
4. Proclamation of general election of members of the Diet.
5. Proclamation of a referendum, as provided for by law.
6. Granting amnesty.
7. Issuing full powers and credentials to Ambassadors who are dispatched to foreign countries and Ministers.
8. Receiving the credentials of foreign ambassadors and ministers.
9. Performance of national ceremonies.
Article 7.
The property of the Imperial Household shall be managed in accordance with a resolution by the Diet.
(Proposal #1)
Chapter II. Renunciation of War
Article 8.
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.
(2) 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.
(Proposal #2)
Chapter II. Contributing to International Peace and Maintaining Independence
Article 8.
In order to maintain international peace and security, Japan shall strive to prevent and eliminate threats against peace, and take necessary actions against acts of aggression and acts that disrupt world peace, in accordance with the goals of the Charter of the United Nations.
(2) Japan shall resolve international disputes by peaceful means, and absolutely rejects war, the threat or use of force, or threats to another country’s territorial integrity or the freedom of its citizens.
(3) Glorifying and propagandizing war shall be prohibited.
Article 9.
In order for Japan to maintain its independence and security, and contribute to international peace, a Self-Defense Force shall be established.
(2) The Self-Defense Forces shall, under all circumstances, be under civilian control.
Chapter III. Rights and Duties of the People
Article 10.
All human beings are born free and equal in dignity and rights.3 That dignity shall not be violated.
(2) The rights guaranteed to the people by this Constitution are based on a democratic society and the public welfare, and shall not be restricted.
(3) The application of the rights guaranteed to the people by this Constitution to foreigners shall be determined by law.
(4) The specified rights guaranteed by this Constitution must not be construed as contempt for or denial of other inherent rights that human beings have.
Article 11.
All of the people are equal before the law and there shall be no discrimination because of race, sex, religion, political views, socioeconomic background, education, wealth, other similar reasons.
Article 12.
When all people reach adulthood, they shall have the right to vote and be eligible to hold office.
(2) All people have the right to participate in politics directly or through a representative.
Article 13.
All of the people shall have freedom of religion.
(2) No religious organization shall have national characteristics, nor exercise any political authority.
Article 14.
All of the people shall have the right to assemble peacefully and freedom of association.
Article 15.
All of the people shall have the freedom of expression, and the right to access and obtain information.
(2) Censorship is prohibited.
Article 16.
All of the people shall have academic freedom and the freedom to publish their research.
Article 17.
All of the people shall have the right to be free from arbitrary intrusion into their own private matters, family, residence, or correspondence. They shall also have the right to have their personality and honor respected.4
Article 18.
All of the people shall have the free choice of residence and freedom to move.
(2) All of the people who move to a foreign country and divest themselves of Japanese citizenship must acquire foreign citizenship.
Article 19.
All of the people have the freedom to choose their occupation and business.
Article 20.
The property rights of all of the people shall be inviolate.
(2) With regard to property rights, laws may impose restrictions from the viewpoint of social equality and public welfare.
Article 21.
All of the people’s rights to life, liberty, and physical safety shall not be infringed on except according to the appropriate procedure as provided by law.
Article 22.
All of the people shall not [be subjected] to torture, or cruel and unusual treatment or punishment.
Article 23.
The people may not be apprehended or detained without adequate cause by the public authority.
Article 24.
All of the people shall have the right to a trial.
Article 25.
In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.
(2) All criminal defendants are presumed to be innocent until a guilty verdict is handed down.
Article 26.
The people shall not be compelled to testify against themselves.
Article 27.
No person shall be charged with criminal responsibility for an act that does not constitute a crime. In addition, no person shall be charged for the same crime again.
Article 28.
All people may sue for compensation for loss or damage as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official.
Article 29.
All people, in case he is found not guilty by a final and conclusive judgement after he has been arrested or detained, may sue the State for redress as provided by law.
Article 30.
Marriage shall be based only on the free and full consent of the parties involved, and shall be maintained through mutual cooperation and trust with the equal rights of husband and wife as its basis.
(2) The family shall be the natural and fundamental unit of society. The state shall respect its existence.
Article 31.
In order for all people to maintain a decent standard of living, the State shall use its endeavors for the improvement and promotion of social welfare, livelihood protection, and other spheres of life.
Article 32.
In order for all people to maintain their physical and mental health, the State shall use its endeavors to promote and expand medical facilities, public health, and other spheres of health.
Article 33.
The State shall use its endeavors to protect the environment and ecosystems.
Article 34.
In order for all people to maintain cultured living, the State shall use its endeavors for the promotion and expansion of science, literature, art, and other spheres of culture.
Article 35.
The state shall be especially considerate of the elderly, the handicapped, and expectant and nursing mothers.
(2) The state shall be considerate for the healthy physical and mental development of children and minors.
Article 36.
The State must make it possible for all people to receive an equal education correspondent to their ability.
(2) Compulsory education shall be free.
(3) The State shall promote lifelong education.
Article 37.
The state shall use its endeavors to ensure that all people can secure fair working conditions and protection from unemployment.
Article 38.
The right of all workers to form unions, collectively bargain with their employers, and conduct other collective acts is guaranteed.
Article 39.
All people shall be obligated to obey this Constitution and the law.
Article 40.
All people shall be liable to taxation.
Article 41.
All people shall be obligated to have all children under their protection receive education.
Chapter IV. Legislative Power
Article 42.
Legislative power shall be vested in the Diet, which is composed of only one house.
Article 43.
The number of members of the Diet shall be fixed by law. However, each electoral district must endeavor to ensure that the value of each vote is as equal as possible.
(2) In order to allocate a fair number of representatives for each voting district, the Diet may establish a voting district committee composed of members who are not members of the Diet. In this case, the Diet must respect the decision of the voting district committee.
(3) The composition of the voting district committee and its management shall be determined by law.
Article 44.
The term of office of members of the Diet shall be four years. However, the term shall be terminated before the full term is up in case the Diet is dissolved.
Article 45.
When the term of office of members of the Diet expires or the Diet is dissolved, there must be a general election of members of the Diet within twenty to forty days after the date the term expires or date of dissolution. The Diet must be convoked within fifteen days of the election.
(2) If a state of emergency occurs in the country while members of the Diet are up for election, the Cabinet may call up a former member of the Diet and change the proceedings of the Diet. However, the adoption of that measure will become invalid unless it is approved within ten days after the Diet is convoked.
Article 46.
The Diet shall abide by the principle of a universal, equal, direct, and secret election. It shall be organized by elected members.
(2) Electoral districts, method of voting and other matters pertaining to elections shall be fixed by law.
Article 47.
Political Parties and other political organizations shall cooperate with the will of the people during elections.
(2) The establishment of political parties and other political organizations, and their activities shall be unrestricted as long as they obey this Constitution and the law. A Constitutional Review Board shall make an administrative determination regarding the unconstitutionality of political parties and other political organizations.
Article 48.
Members of the Diet are representative of all the people, and shall not be bound by the mandate or instructions of voters. (2) In order to meet the mandate of the people, members of the Diet shall not engage in corrupt or unlawful activities.
Article 49.
Members of the Diet shall receive appropriate annual payment from the national treasury in accordance with law.
Article 50.
Except in cases provided by law, members of the Diet shall be exempt from apprehension while the Diet is in session, and any members apprehended before the opening of the session shall be freed during the term of the session upon demand of the Diet.
Article 51.
Members of the Diet shall not be held liable outside the Diet for speeches, debates or votes cast inside the Diet.
Article 52.
An ordinary session of the Diet shall be convoked twice per year.
Article 53.
The Cabinet may determine to convoke extraordinary sessions of the Diet. Moreover, when a quarter or more of the total members of the Diet makes the demand, the Cabinet must determine on such convocation.
Article 54.
The Diet shall decide on disputes related to qualifications of its members. However, in order to deny the qualifications of any member, it is necessary to pass a resolution by a majority of two-thirds or more of the members present.
Article 55.
Business shall not be transacted in the Diet unless a majority of total membership is present.
(2) All matters shall be decided, in the Diet, by a majority of those present, except as elsewhere provided in the Constitution and a tie shall be considered a rejection.
(3) When two-fifths or more of the total members of the Diet make a demand, the Diet may impose a ten-day cooling-off period during the time between when the consideration ends until a resolution [is reached].
Article 56.
Deliberation in the Diet shall be public. However, a secret meeting may be held where a majority of two-thirds or more of those members present passes a resolution therefor.
(2) The Diet shall retain Diet Records. This record shall be published and given general circulation, excepting such parts of proceedings of secret sessions as may be deemed to require secrecy.
(3) Votes of members on any matter shall be recorded in the Diet Records upon demand of one-fifth or more of the members present.
Article 57.
The Diet shall select its own chairman and other officials.
(2) The Diet shall establish its rules pertaining to meetings, proceedings and internal discipline, and may punish members for disorderly conduct. However, in order to expel a member, a majority of two-thirds or more of those members present must pass a resolution thereon.
Article 58.
The Diet may conduct investigations in relation to the government and may demand the presence and testimony of witnesses, and the production of records. However, when conducting these investigations, the human rights of individuals shall be respected to the maximum extent.
Article 59.
In order to review the dismissal of judges, the Diet may establish a Judiciary Impeachment Review Board from among the members of the Diet.
(2) Matters relating to the Judiciary Impeachment Review Board shall be determined by law.
Chapter V. Executive Power
Article 60.
Executive power shall be vested in the Cabinet.
Article 61.
The Cabinet shall consist of the Prime Minister, the Deputy Prime Minister and other Ministers of State, as provided for by law.
(2) The Prime Minister shall be the head of the Cabinet. When there is a vacancy in the post of Prime Minister, the Deputy Prime Minister shall perform the functions [of the Prime Minister] until a new Prime Minister is appointed.
(3) The Prime Minister and other Ministers of State must be civilians.
Article 62.
The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet. This designation shall precede all other matters.
Article 63.
The Prime Minister shall appoint the Deputy Prime Minister and other Ministers of State. However, a majority of their number must be chosen from among the members of the Diet.
(2) The Prime Minister may remove the Deputy Prime Minister and other Ministers of State as he chooses.
Article 64.
The Cabinet, in the exercise of executive power, shall be collectively responsible to the Diet.
(2) If the Diet passes a non-confidence resolution, or rejects a confidence resolution, the Cabinet shall resign en masse, unless the Diet is dissolved within ten days.
(3) Non-confidence resolutions and confidence resolutions shall be passed by a majority of the total members of the Diet.
Article 65.
When the Diet is first convoked after a general election of members of the Diet, the Cabinet shall resign en masse.
Article 66.
Pursuant to the previous two articles, the Cabinet shall continue its functions until the time when a new Prime Minister is appointed.
Article 67.
The Prime Minister, the Deputy Prime Minister, and other Ministers of State may, at any time, appear in the Diet for the purpose of speaking on bills submitted by the Cabinet. They must appear when their presence is required by the Diet in order to give answers or explanations.
Article 68.
The Prime Minister, representing the Cabinet, submits drafts of proposed laws and other bills, reports on general national affairs and foreign relations to the Diet and exercises control and supervision over various administrative branches.
Article 69.
The Cabinet, in addition to other general administrative functions, shall perform the following duties:
1. Administer the law faithfully; conduct general affairs of state.
2. Manage foreign affairs.
3. Conclude treaties. However, it shall obtain prior or, depending on the situation, 4. Prepare a budget bill, and present it to the Diet.
5. Exercise the right to veto drafts of proposed laws passed by the Diet. However, this veto by a majority of three-fifths or more of the members present overrides the veto, then that bill shall become a law.
6. Decide on the enforcement of national referendums related to important matters of the state.
7. Manage the duties of public officials, in accordance with standards established by law.
8. Enact cabinet orders in order to execute the provisions of the law. However, it cannot include penal provisions in cabinet orders unless authorized by law.
9. Issue state of emergency orders if an emergency has the potential to have a tremendous impact on national security, the lives of the people, or property. However, it shall obtain prior or, depending on the situation, subsequent approval of the Diet. If it is not possible to receive approval from the Diet, the state of emergency order will be canceled.
Article 70.
Laws and cabinet orders shall be signed by the competent Minister of State and countersigned by the Prime Minister.
Article 71.
The Prime Minister and other Ministers of State, during their tenure of office, shall not be subject to legal action without the consent of the Prime Minister. However, the right to take that action is not impaired hereby.
Chapter VI. Judicial Powers
Article 72.
Judicial power is vested in a Supreme Court and in such inferior courts as are established by law.
Article 73.
All judges shall be independent in the exercise of their authority and shall be bound only by this Constitution and the laws.
Article 74.
If there is a judicial assumption of whether or not a treaty or law is constitutional, the court shall present the relevant treaty or law to the Constitutional Review Board. It will accept that decision and adjudicate [accordingly].
(2) If there is an assumption of whether or not an order, regulation, or officials act carried out by a public institution, or law is constitutional, the Supreme Court shall have the power to carry out a final review.
Article 75.
The Supreme Court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs.
(2) The Supreme Court may delegate the power to make rules for inferior courts to such courts.
(3) Public procurators shall be subject to the rule-making power of the Supreme Court and inferior courts.
Article 76.
The Supreme Court shall consist of a Chief Judge and such number of judges as may be determined by law; all such judges excepting the Chief Judge shall be appointed by the Cabinet. All judges of the Supreme Court shall hold office for a term of ten years, provided that they shall be retired upon the attainment of the age as fixed by law.
Article 77.
The judges of the inferior courts shall be appointed by the Cabinet from a list of persons recommended by the Supreme Court, who are then selected by the Judge-Selection Council. Judges of inferior courts shall hold office for a term of ten (10) years with privilege of reappointment, provided that they shall be retired upon the attainment of the age as fixed by law.
Article 78.
The Judge-Selection Council shall consist of the following people:
1. Five committee members who are not members of the Diet and are selected by the Diet.
2. Five committee members who are representatives of the judges.
3. Three committee members who are part of the legal community and selected by the Cabinet.
(2) The Judge-Selection Commission shall have the following powers:
1. Recommend judges of the supreme court to the Cabinet.
2. Select judges of inferior courts from the list of persons recommended by the Supreme Court.
3. Declare that judges are mentally or physically incompetent to perform official duties.
4. Remove judges who are impeached by the impeachment review board, which is established by the Diet. However, the decision to remove [a judge] requires two-thirds of the committee members to be present and two-thirds or more [of them] must agree.
(3) Matters related to the Judge-Selection Commission shall be determined by law.
Article 79.
All judges of the Supreme Court and inferior courts shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office.
Article 80.
Trials shall be conducted and judgment declared publicly.
(2) Where a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of political offenses, offenses involving the press or cases wherein the rights of people as guaranteed in Chapter 3 of this Constitution are in question shall always be conducted publicly.
Chapter VII. Legal Guarantees
Article 81.
This Constitution shall be the supreme law of the nation and no law, ordinance, regulation or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity.
Article 82.
In order to guarantee the supremacy of this Constitution, a Constitutional Review Board shall be established.
(2) The Constitutional Review Board shall review the following matters:
1. Disputes related to the constitutionality of treaties or laws.
2. Disputes related to jurisdiction between state organs, and between the national government and local public entities.
3. Disputes related to the constitutionality of political parties.
(3) Regarding disputes set forth in the first item of the preceding paragraph, if the Constitutional Review Board decides that [a treaty of law] is unconstitutional, those provisions shall cease to be effective from the day after the decision [is handed down].
Article 83.
The Constitutional Review Board shall be composed of the following people:
1. Seven committee members who are selected by the Supreme Court.
2. Four review board members who are selected by the Diet
3. Four review board members who are selected by the Cabinet.
(2) Review board members of the Constitutional Review Board must be selected [from a pool of judges (including retired judges), public prosecutors, law school professor, and lawyers with over twenty years of experience.
(3) The head review board member of the Constitutional Review Board shall be selected by an election [held by] the review board members.
(4) Review board members of the Constitutional Review Board shall hold office for twenty years. One-third [of the review board members] shall be up for reelection every four years.
(5) Review board members of the Constitutional Review Board shall not belong to any state organ while in office.
Article 84.
The organization and method of operation of the Constitutional Review Board, as well as those parties entitled to appeal to the Constitutional Review Board, shall be determined by law.
Chapter VIII. Financial
Article 85.
The Diet shall determine how all national finances are administered.
Article 86.
Taxes and surcharges received by the authority of the state, prices of government monopolies, and determining or changing fees shall be decided by law or a resolution by the Diet.
Article 87.
A resolution by the Diet shall be necessary for state expenditures and issuing government bonds.
Article 88.
The Cabinet must prepare a budget for each fiscal year and receive approval from the Diet.
(2) If the Cabinet deems that there is an extraordinary case, it may request continuous expenditure for a period of time from the Diet.
(3) If the Cabinet cannot receive approval from the Diet [for matters related to] the preceding two paragraphs, it may create a tentative budget for a fixed period of time and submit it to the Diet.
Article 89.
In order to provide for unforeseen deficiencies in the budget, a reserve fund may be authorized by the Diet.
(2) The Cabinet shall be responsible for payments from the reserve fund, and it must get subsequent approval from the Diet.
Article 90.
Final accounts of the state shall be audited annually by a Board of Audit and reported to the Cabinet. During the fiscal year immediately following the period covered, the Cabinet shall submit the statement of audit to the Diet.
(2) The Board of Audit shall be independent from the Cabinet. The organization and competency [of the Board of Audit] shall be determined by law.
Article 91.
At regular intervals and at least annually the Cabinet shall report to the Diet and the people on the state of national finances.
Chapter IX. Local Self-Government
Article 92.
The state shall respect local public entities and the autonomy of [their] residents.
(2) In order to facilitate local government, local public entities shall be established.
(3) The local public entities shall respect the wishes of the residents, cooperate with the state, and use their endeavors to promote welfare.
Article 93.
The local public entities shall establish assemblies as their deliberative organs, in accordance with law.
(2) The chief executive officers of all local public entities, the members of their assemblies, and such other local public officials as may be determined by law shall be elected by direct popular vote within their several communities. The residents of local public entities shall have the power to recall these public officials.
Article 94.
Local Public Entities shall have the right to enact ordinances, as long as they do not go against the spirit of the law.
Article 95.
The Diet may enact a special law, applicable only to one or a specified local public entity. However, before the Diet enacts one of these special laws, the consent of the majority of the voters of the local public entity concerned must be obtained.
Chapter X. Amendments to the Constitution
Article 96.
Proposals for amendments to the Constitution shall be carried out by the Special Committee on Constitutional Amendments appointed by the Cabinet and the Diet Chairman. The Special Committee on Constitutional Amendments shall deliberate once every 10 years, in addition to special deliberations when necessary.
(2) Amendments to the Constitution proposed by the Cabinet or the Special Committee on the Constitutional Amendments shall be discussed in the Diet. In the Diet, amendments concerning the provisions of Chapter 1 (The Emperor), Chapter 2 (Renunciation of War, Proposal #1) or Chapter 2 (Contributing to International Peace and Maintaining Independence, Proposal #2), Chapter 3 (Rights and Duties of the People), or Chapter 10 (Amendments to the Constitution) shall require an affirmative vote of more than two-thirds or more of all the members of the Diet, and amendments to other provisions shall require an affirmative vote of three-fifths or of all members of the Diet, [before being] submitted to the people [for ratification]. If a majority of all valid votes approve [the ratification of the proposed amendment], then [the amendment] shall be promulgated by the Emperor in the name of the people.
(3) The necessary matters for amending the Constitution shall be determined by law.
Chapter XI. Transitional Provisions
Article 97.
This Constitution shall be enforced as from the day when the period of six months will have elapsed counting from the day of its promulgation.
(2) The enactment of laws and other preparatory procedures necessary for the enforcement of this Constitution shall be carried out as quickly as possible after the day that [this Constitution] is promulgated.
Article 98.
Before the day that this Constitution is enforced, a general election of members of the Diet must take place. When the Diet is convoked after the first general election, the House of Councilors shall be terminated at that time.
Article 99.
The first term of the Constitutional Review Board established by this Constitution shall [consist of] one-third of its members shall hold office for four years, another one-third shall hold office for 8 years, and the remaining one-third shall hold office for 12 years.
Article 100.
The Ministers of State, members of the Diet, and judges in office on the effective date of this Constitution, and all other public officials who occupy positions corresponding to such positions as are recognized by this Constitution shall not forfeit their positions automatically on account of the enforcement of this Constitution unless otherwise specified by law. When, however, successors are selected or appointed under the provisions of this Constitution, they shall forfeit their positions as a matter of course.