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Published online by Cambridge University Press: 01 August 2014
For more than a decade, the Privy Council has been the subject of political controversy in Japan. Today, a group of liberals look upon the Council as an obstruction to the progressive development of parliamentary government and urge its reform, if not abolition. Under these circumstances, there is a tendency to subject the Council to considerable scrutiny from a utilitarian viewpoint. What is its purpose? Does it adequately fulfill this purpose, or does it obstruct the present trend of representative government in Japan? What reforms in its structure and functions are to be recommended? The answers to these questions are suggested largely by the varying liberal or conservative views of the various critics.
An evaluation of the achievements of an organ of government such as the Privy Council may be guided by several standards of value. One standard aims to measure the success of the institution in achieving the purpose of the states men who were the architects of its being. Another attempts to measure the success of the institution in promoting what is generally accepted at the present time by intelligent persons as good government. Measured by the first of these standards, the Privy Council would probably disappoint the author of the constitution, or at least disappoint his expectations as expressed in the almost naive language of the celebrated Commentaries on the Constitution wherein the Council was designed “to serve as the highest body of the emperor's constitutional advisers,” and was “to be impartial, with no leanings to this or that party, and to solve all difficult problems.”
The concluding instalment of this article will appear in the November number.
All translations of Japanese sources were made by Dr. Sterling Tatsuji Takeuchi. The writer also acknowledges a debt to him for much information and many suggestions on this subject.
2 Commentaries on the Constitution of the Empire of Japan, by Count Hirobumi Ito, translated by Miyoji Ito (Tokyo, 1889), pp. 98–99Google Scholar.
3 The cabinet system had been established at even an earlier date, namely, in 1885.
4 Compare Minobe-Tatsukichi, , Kempo Seigi, or “Commentaries on the Constitution,” (Tokyo, 1928), p. 554Google Scholar.
5 The official English translation of the constitution is found in Prince Ito's Commentaries. The official Japanese text is in Genko Borei Shuran, or “Compilation of Laws and Ordinances in Force,” (Tokyo, 1927), Vol. I, bk. i, pp. 1–14Google Scholar.
6 This ordinance, cited as Imperial Ordinance No. 22 of 1888, in its amended form, is found in Genko Horei Shuran, or “Compilation of Laws and Ordinances in Force,” (Tokyo, 1927), Vol. I, bk. iii, p. 5Google Scholar. An English translation of the ordinance was published in the Japan Weekly Mail, May 12, 1888, pp. 444–445Google Scholar, and is reprinted in McLaren, W. W., Japanese Government Documents (Transactions of the Asiatic Society of Japan, Tokyo, 1914), Vol. XLII, pt. i, pp. 127–132Google Scholar.
7 Compare Hozumi-Yatsuka, , Kempo Teiyo, or “Principles of the Constitution,” (Tokyo, 1910), Vol. II, p. 567Google Scholar; Ichimura-Kokei, , Teikoku Kempo Ron, or “Commentaries on the Imperial Constitution,” (Tokyo, 1926), pp. 656–661Google Scholar; Minobe-Tatsukichi, , Kempo Seigi, or “Commentaries on the Constitution,” (Tokyo, 1928), p. 552Google Scholar; Shimizu-Cho, , Kempo Hen, or “Principles of Constitutional Law,” (Tokyo, 1923), p. 1099Google Scholar; Uyesugi-Shinkichi, , Kempo Jutsugi, or “Commentaries on the Constitution,” (Tokyo, 1924), p. 701Google Scholar.
8 “Inasmuch as the Privy Council is a constitutional organ, it cannot be abolished without constitutional amendment. But since its organization is determined by imperial ordinance, this may be amended freely by the emperor. However, such amendment of the organization of the Council and the rules for the conduct of its business cannot be made without having been submitted to the Council for advice thereon.” Ichimivra, , Teikoku Kempo Ron (1926), p. 657Google Scholar.
9 Compare Kudo-Takeshige, , Teikdku Gikaishi, or “Parliamentary History of Japan,” (Tokyo, 1901), Vol. I, p. 278Google Scholar.
10 P. 99.
11 Kempo Teiyo (1910), Vol. II, 570Google Scholar. Dr. Hozumi-Yatsuka was professor of constitutional law from 1891 to 1912 and dean of the law faculty of the Imperial University of Tokyo from 1898 to 1912. He is not to be confused with Baron Hozumi-Nobushige, the well-known authority on family law and a contemporary member of the same law faculty, who served as president of the Privy Council from 1924 to his death in 1926.
12 Geriko Horei Shuran (1927), Vol. I, bk. i, pp. 15–29Google Scholar. An official English translation of the Koshitsu Tempan, or Imperial House Law, can be found in Ito, Commentaries (1889), 156–167Google Scholar. The Imperial Family Council, as provided in Article LV, consists of the male members of the imperial family who have reached their majority; while the Lord Keeper of the Privy Seal, the President of the Privy Council, the Minister of the Imperial Household, the Minister of State for Justice, and the President of the Court of Cassation take part in the deliberations.
13 In the words of the Commentaries (p. 99): “The Privy Council is to hold deliberations only when its opinion has been asked for by the emperor; and it is entirely for Hm to accept or reject any opinion given.”
14 The Commentaries (p. 93) read: “Who then is it, except the sovereign, that can appoint, dismiss, and punish a minister of state ? The appointment and dismissal of them having been included by the constitution in the sovereign power of the emperor, it is only a legitimate consequence that the power of deciding as to the responsibility of ministers is withheld from the Diet.”
15 The rules of procedure laid down in the Sumitsuin Kansei contain the following: “II. The Privy Council cannot receive petitions, representations, or other communications from the Imperial Diet, from either house of the same, from any governmental office, or from any of His Majesty's private subjects whatever. III. The Privy Council shall have official connection with the cabinet and with the ministers of state only, and officially shall not communicate or have any connection whatever with any of His Majesty's private subjects.” Genko Horei Shuran (1927), Vol. I, bk. iii, p. 5Google Scholar.
16 Imperial Ordinance No. 216 of 1890, issued on October 8, 1890, amending the ordinance of April 28, 1888. Genko Horei Shuran (1927), Vol. I, bk. iii, p. 5Google Scholar. For an English translation, see Japan Weekly Mail, Oct. 25, 1890, p. 411Google Scholar.
17 Compare Minobe, , Kempo Seigi (1928), pp. 561–562Google Scholar; Gendai Kensei Hyoron, or “Commentaries on Contemporary Government,” (Tokyo, 1930), pp. 72–107Google Scholar; Ichimura, , Teikoku Kempo Ron (1926), pp. 657–658Google Scholar; Shimizu-Cho, , Kempo Hen (1923), p. 1001Google Scholar; and his article on “The Privy Council” in Kokka Gakkai Zasshi, or “Journal of Political Science,” (March, 1909), Vol. XXIII, no. 3, pp. 335–346Google Scholar.
18 The constitution provides: “Article VIII. The Emperor, in consequence of an urgent necessity to maintain public safety or to avert public calamities, issues, when the Imperial Diet is not sitting, imperial ordinances in the place of law. Such imperial ordinances are to be laid before the Imperial Diet at its next session, and when the Diet does not approve the said ordinances, the Government shall declare them to be invalid for the future. Article LXX. When the Imperial Diet cannot be convoked, owing to the external or internal condition of the country, in case of urgent need for the maintenance of public safety, the Government may take all necessary financial measures, by means of an imperial ordinance. In the case mentioned in the preceding clause, the matter shall be submitted to the Imperial Diet at its next session, and its approbation shall be obtained thereto.”
19 Article VI of the Sumitsuin Kansei reads: “Upon His Majesty's submission for advice, the Privy Council shall hold deliberations and report its opinions upon the following matters.” Then follow the six enumerated matters of state.
20 Dr. Uyesugi held to the contrary. “As to the matters over which the Privy Council has competence, the constitution merely refers to important matters of state. Although the Sumitsuin Kansei enumerates six items, enumeration does not mean that the competence is confined to these matters, nor does it mean that the emperor must consult the Privy Council in these matters, except in case that the order of succession to the crown is contemplated.” Kempo Jutsugi (1927), p. 702Google Scholar.
21 Kempo Seigi (1928), p. 562Google Scholar. Dr. Minobe-Tatsukichi has served since 1903 as professor of administrative law and constitutional law on the faculty of the Imperial University of Tokyo, and as dean of this faculty from 1925 to 1927. He is the founder of the new school of Japanese jurisprudence.
22 Kempo Teiyo (1910), Vol. II, p. 580Google Scholar.
23 Compare Minobe, , Gendai Kensei Hyoron (1930), pp. 81–82Google Scholar; Ichimura, , Teikoku Kempo Ron (1926), pp. 659–660Google Scholar.
24 The preamble of the constitution provides: “When in the future it may become necessary to amend any of the provisions of the present constitution, we or our successors shall assume the initiative right, and submit a project for the same to the Imperial Diet. The Imperial Diet shall pass its vote upon it, according to the conditions imposed by the present constitution, and in no otherwise shall our descendants or our subjects be permitted to attempt any alteration thereof.” Article LXXIII provides: “When it has become necessary in future to amend the provisions of the present constitution, a project to that effect shall be submitted to the Imperial Diet by imperial order. In the above case, neither house can open the debate, unless not less than two-thirds of the whole number of members are present, and no amendment can be passed unless a majority of not less than two-thirds of the members present is obtained.”
25 Compare Hozumi-Yatsulta, , Kempo Teiyo (1910), Vol. II, p. 569Google Scholar.
26 Gendai Kensei Hyoron (1930), pp. 88–89Google Scholar.
27 Dai Nippon Teikoku Gikaishi, or “Parliamentary Eeeords of the Imperial Japanese Diet,” (Tokyo, 1926), Vol. I, p. 1743Google Scholar. During the debate in the House of Peers over the address, no reference was made to the Privy Council. The emperor was assumed to be the interpreter of the constitution.
28 Dai Nippon Teikoku Gikaishi (1926), Vol. I, p. 1750Google Scholar. The address was voted on June 11, 1892. The imperial edict was dated June 13. Regarding this controversy, compare Kudo, , Teikoku Gikaishi (1901), Vol. I, pp. 152–158Google Scholar.
29 Compare Minobe, , Gendai Kensai Hyoron (1930), pp. 89–92Google Scholar. On paper, the Council possesses a judicial function. According to Article XLV of the Law Concerning Administrative Litigation, it is provided that until the establishment of a court of jurisdictional litigation, the Privy Council is to decide controversies concerning conflict of jurisdictions. Thus far, no legislation providing for procedure in the submission of cases has been passed; hence there is no provision for instituting suits. Cf. Minobe, , Kempo Seigi (1928), p. 563Google Scholar; Gendai Kensai Hyoron (1930), p. 107Google Scholar.
30 Compare article by the writer on “The Treaty-Making Power in Japan” in American Journal of International Law, Vol. XXV, pp. 270–297 (April, 1931)Google Scholar.
31 Hiratusuka-Atsushi, (ed.), Ito Sirohumi Eirolcu, or “Secret Memoirs of Prince Ito,” (Tokyo, 1929), p. 61Google Scholar. In the same memorandum, Prince Ito suggested an amendment to the Sumitsuin Kansei increasing the membership of the Council to fifty.
32 Ito Hirobumi Hiroku, p. 62.
33 Marquis Okuma and Prince Tamagata died in 1922, and Prince Matsukata in 1924.
34 It appears that in the last months of the tottering Tanaka ministry some sort of promise was made by the premier for an increase of two seats. When the Hamaguchi ministry took office in July, 1929, the councillors attempted to compel redemption of the alleged promise. The cabinet decided that inasmuch as the new ministry had not been informed of the alleged promise by the outgoing cabinet, it was not bound to consider the question. Tokyo Asahi Shimbun, Sept. 4, 1929, p. 3Google Scholar; Jiji Shimpo, Sept. 5, 1929, p. 6Google Scholar; Japan Weekly Chronicle (Kobe), Sept. 12 and Oct. 10, 1929, pp. 291, 398Google Scholar.
35 Tokyo Asahi Shimbun, Sept. 24, 1929, p. 1Google Scholar; Japan Weekly Chronicle (Kobe), Sept. 26, 1929, p. 349Google Scholar.
36 For instance, in 1929, when the death of Marquis Inoue increased the vacant seats to four, Baron Kuratomi called upon Premier Hamaguchi at his official residence requesting more expedition. Tokyo Asahi Shimbun, Nov. 5, 1929, p. 6Google Scholar; Japan Weekly Chronicle (Kobe), Nov. 14, 1929, p. 526Google Scholar.
37 Tokyo Asahi Shimbun, Sept. 4, 1929, p. 3Google Scholar.
38 The presidents of the Council have been: Prince Ito, 1889-90; Count Oki, 1890-92; Prince Ito, 1892; Prince Yamagata, 1893-95; Count Kuroda, 1895-99; Prince Saionji, 1899-1904; Prince Ito, 1904-05; Prince Yamagata, 1905-22; Viscount Kiyoura, 1922-24; Viscount Hamao, 1924; Baron Hozumi, 1924-26; Baron Kuratomi, 1926 to date.
39 Objections are sometimes expressed in the liberal press as to the influence exerted, not only by the president and vice-president, but also by the secretary general. Regarding the activity of the present incumbent, Futakami-Hyoji, see the Nichi Nichi Shimbun (Tokyo), Oct. 1, 1930, p. 7Google Scholar.
40 For this delay, the president was mildly rebuked by another councillor, Viscount Ishii. Tokyo Asahi Shimbun, Aug. 8, 1930, p. 1Google Scholar; Oct. 2, p. 1. Compare Japan Weekly Chronicle (Kobe), Aug. 14 and Oct. 9, 1930, pp. 198-200, 422–423Google Scholar.
41 Compare Ichimura, , Teikoku, Kempo Ron (1926), p. 657Google Scholar. Professor Hozumi may be cited as among the few jurists who hold to the contrary, on the ground that the constitution does not deny this privilege to the councillors. Kempo Teiyo (1910), Vol. II, p. 567Google Scholar.
42 Compare the interpellation of Saito-Takao on March 2, 1929, Kwampo gogai, March 3, 1929, p. 536Google Scholar. Baba-Tsunego states that the leak in the news of the debates in the Council is on the side of the privy councillors rather than the ministers. Cf. “Elder Statesmen and the Privy Council,” in Taiyo (Nov., 1927), Vol. XXXIII, no. 13, p. 96Google Scholar. Ministers, however, have been known to tell tales.
43 Compare Baba-Tsunego, , “Elder Statesmen and the Privy Council,” Taiyo (Nov., 1927), Vol. XXXIII, no. 13, p. 88Google Scholar.
44 Tokyo Asdhi Shimbun, June 23, 28, 29, and 30, 1928, p. 3Google Scholar; Japan Weekly Chronicle (Kobe), July 5, 1928, pp. 24-25, 29Google Scholar.
45 Jiji Shimpo, Feb. 20, 1925, p. 1Google Scholar; Tokyo Asahi Shimbun, Feb. 20, 1925, p. 3Google Scholar; Japan Weekly Chronicle (Kobe), Feb. 19 and 26, 1925, pp. 242, 271Google Scholar.
46 Tokyo Asahi Shimbun, April 18, 1927, p. 1Google Scholar; April 19, p. 3; Jiji Shimpo, April 19, 1927, p. 1Google Scholar.
47 Minobe, , Gendai Kensei Hyoron (1930), p. 120Google Scholar; Kokka Gakkai Zasshi, Vol. XLI, no. 9, p. 1383Google Scholar. Compare his Kempo Seigi (1927), p. 556Google Scholar.
48 Minobe, , Kempo Seigi (1928), 558Google Scholar; and his Gendai Kensei Hyoron (1930), pp. 114–118Google Scholar.
49 The preamble of the Sumitsuin Kansei reads: “Whereas we deem it expedient to consult personages who have rendered signal services to the state, and to avail ourselves of their valuable advice on matters of state, we hereby establish our Privy Council, which shall henceforth be an institution of our supreme counsel; and we hereby also give our sanction to the present ordinance relating to the organization of the said Privy Council and to the regulation of the business thereof, and order it to be promulgated.”
50 Article on “Functional Aspect of the Privy Council,” in Taiyo, Vol. XIX, no. 11 (Aug., 1913), pp. 109–113Google Scholar. Dr. Oda is professor of administrative law in the Imperial University of Kyoto. In 1921, he was elected a member of the Permanent Court of International Justice at The Hague.
51 Ichimura-Kokei, , Teikokv, Kempo Ron (1926), p. 658Google Scholar. Ichimura discusses the complicated question raised by the fact that the Koshikirei, or Ordinance Concerning the Form of Public Documents (1907), requires a statement in the preamble of imperial edicts promulgating emergency imperial ordinances and certain other ordinances, as well as treaties, to the effect that these measures have received the advice of the Privy Council. Genko Horei Shuran (1927), Vol. I, bk. i, p. 45Google Scholar. Does “advice” in this case mean consent? Ichimura answers in the negative. The emperor is not bound by the recommendation of the Privy Council, for the Council is merely an advisory body. The proclamation of a measure of the category above mentioned must state that it has been submitted to the Council; but this requirement does not restrict the emperor from following other advice. Compare Dr.Sasaki-Soichi, , “Reform of the Privy Council,” Tokyo Asahi Shimbun, Oct. 16, 1930, p. 2Google Scholar; Dr.Yoshino-Sakuzo, , “The Privy Council,” Chuo Koron, No. 473 (June, 1927), pp. 103–117Google Scholar; Dr.Shimizu-Cho, , “The Privy Council,” Kokka Gakhai Zusshi (March, 1909), Vol. XXIII, no 3, pp. 345–346Google Scholar. Dr. Shimizu is judge of the Court of Administrative Litigation.
52 Baba-Tsunego, , “Personalities in the Privy Council,” Kaizo, Vol. XII, no. 10 (Oct., 1930), p. 34Google Scholar.
53 Kwampo gogai, or “Imperial Gazette” (supplement), Mar. 8, 1927, pp. 69–70Google Scholar.
54 Yoshino-Sakuzo, , “Appraisal of the Houses of the Diet,” Chuo Koron (April, 1929), no. 495, p. 65Google Scholar.
55 Tokyo Asahi Shimbun, March 1, 2, and 13, 1929, pp. 1, 2, 6, 7Google Scholar; Japan Weekly Chronicle (Kobe), March 21, 1929, pp. 284, 346Google Scholar.
