Nationality Elements of citizenship Aliens and the Constitution

The genesis of Articles 10 and 14

How nationality was written into, then out of, Japan's 1947 Constitution

By William Wetherall

First posted 12 May 2007
Last updated 15 August 2009


Introduction Article 10 Article 14 Whose constitution? Organization of data Sources Transcriptions Translations Marking conventions
Stages of developmentGHQ draft 13 February 1946, Cabinet draft introduced to Diet 17 April, adopted 3 November, enforced 3 May 1947
1. Early proposals 2. Civil Rights Committee reports 3. GHQ drafts 4. Nationalization 5. Colloquialization 6. Final revisions 7. Wording issues


Summary

Chapter III of Japan's constitution defines the "rights and duties of the people" (kokumin no kenri oyobi gimu, 国民の権利及び義務). Much of the chapter was inspired by a draft by GHQ that sought to provide civil rights for everyone in the country, Japanese and aliens alike.

By the time the emerging Japanese draft reached the stage where it was being colloquialized, references to "natural persons" and "aliens" were gone. At one point references to "the people" and "persons" had been nationalized as 国民は (kokumin wa, "national", "the people [of Japan]").

While most instances of 国民 were changed to 何人も (nanbito mo, "persons"), a few remained. Then Article 10 was inserted to clarify that 日本国民 (Nihonkokumin, "national of Japan", "Japanese national") were as defined by law -- meaning the Nationality Law. Though 国民 is a synonym for 日本国民 (Nihonkokumin, "national of Japan", "Japanese national") in conventional usage, some people want to think that in the constitution it also includes aliens.

The distinction between 国民 (the people) and 何人 (persons) in the writing of Chapter III articles appeared to be clear, at least in principle. In practice, however, the Chapter III is a study of sloppy execution and organization. Its articles are living testimony to the haste in which the entire constitution was thrown together to meet the expediencies of rapidly changing Occupation politics.


Introduction

After World War II, the Japanese government set out to draft a new constitution which, like the Meiji Constitution, would address the rights and duties of nationals of Japan. MacArthur's GHQ tried to impose standards of civil rights for people generally -- for all natural persons regardless of national origin, and also for aliens.

Then, through a series of revisions in committees, the Cabinet, and finally the Diet, all specific references to natural persons, national origin, nationality, and aliens were replaced by the people meaning nationals of Japan.

Why did this happen? Mainly because, in their attempt to impose on Japan standards of civil rights that did not yet exist in the United States, idealists in GHQ's Government Section were romantically over their heads -- whereas Japan's legalists, fighting on their home turf, ultimately had firmer grounds for transforming "subjects" in the Meiji Constitution, defined as persons with Japanese nationality, to "the people" in the new constitution, similarly defined as persons with Japanese nationality.

Japan's legalists also had good reason to resist introducing GHQ's vague and somewhat racialist notion of "national origin" -- for Japan's laws had no tradition of racializing people in terms of their putative "national origins" -- among either Japanese nationals or aliens. In Japanese law, the only thing that mattered was nationality -- a civil quality -- and the locality of one's family register, which again had nothing to do with "race" or "national origin" as concepts or categories of law.

Significantly, Japan continues to object to the racialist nuances of "national origin" in United Nations conventions, for the same reason it resisted attempts by GHQ to introduce the term into its postwar constitution. In this respect, at least, the 1947 Constitution turned out to be very much a Japanese, not American, constitution.

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Article 10

Article 10 is the first article under 第三章 国民の権利及び義務 or "Chapter III Rights and Duties of the People". Its purpose is to define the principle protagonists of the chapter -- 国民 -- "people of the country" or "nationals" -- meaning people who possess Japanese nationality.

第十条 日本国民たる要件は、法律でこれを定める。

Article 10. The conditions necessary for being a Japanese national shall be determined by law.

The law that determines such conditions is the Nationality Law.

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Article 14

Article 14 establishes the principle of equality under law for all Japanese nationals, and sets the parameters for prohibiting discrimination in political, economic, and social intercourse.

第十四条 すべて国民は、法の下に平等であつて、人種、信条、性別、社会的身分又は門地により、政治的、経済的又は社会的関係において、差別されない。 [Rest of article omitted.]

Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin. [Rest of article omitted.]

Similar phrasing appears in Article 44, which prohibits discrimination in the qualifications for membership in the two houses of parliemant, because of education, property, or income in addition to race, creed, sex, social status, or family origin.

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Whose constitution?

The formation of Japan's 1947 Constitution following World War II is one of the most contentious issues in Japan today. One common argument for changing the constitution over six decades later is that it is not really a "Japanese" -- but an "American" or "MacArthur" -- constitution.

The "will" of the people

Whether the 1947 Constitution truly reflects the will of the Japanese people at the time depends entirely on how one might go about measuring the "will" of a defeated people nation of people who at the time were still 臣民 (shinmin, "subjects") and not yet 国民 (kokumin, "nationals"). The "will" of the people of Japan, then, can only be measured in terms of the "will" their descendants, today, are capable of imposing on themselves through their elected representatives in the Diet.

While some of its content was imposed by foreign powers, the 1947 Constitution resulted from lawful Japanese action. It came into existence through a legal governmental process which culminated with its formal adoption by the Imperial Diet and promulgation by the Emperor -- as required under the 1890 Meiji Constitution.

Occupied Japan's limited sovereignty

Japan was then an occupied country whose sovereignty was in the hands of the Supreme Commander for the Allied Powers (SCAP) -- in principle the General Headquarters (GHQ) of Douglas MacArthur, in practice the good general himself. SCAP insisted that the Japanese government enact a new constitution as quickly as possible and revise other laws that were not regarded as being in the interest of the people of Japan or of the world. The sooner Japan could be recognized as a competent democratic state, the sooner SCAP could transfer full sovereignty back to Japan and the Occupation thereby end.

Since Japan's legal system at the time of its surrender was still regarded as in tact and functioning, a new constitution would have to be enacted by the Imperial Diet under the rules of the existing Meiji Constitution. To Japanese legalists, whose job it was to draft a new constitution, it made sense to salvage as much as possible of the Meiji Constitution -- change what had to be changed, and leave unchanged what still seemed to still work.

GHQ rejects Matsumoto Committee draft

By early February 1946, the constitution revision committee under the Cabinet, headed by Minister of State Matsumoto Joji, had come up with a proposal to amend the Meiji Constitution with a minimum of change. SCAP did not like it, and on 13 February GHQ presented Japan with a draft whipped up by the Public Administration Division the Government Section and ordered Japan to develop a Japanese version. Japan was represented at the meeting by Minister of Foreign Affairs Yoshida Shigeru (1878-1967) and Matsumoto.

GHQ and Japan negotiated revisions for two months, until in mid April SCAP allowed the Cabinet to introduce a colloquialized bill to the Diet for wider discussion, revision, and adoption. Final revisions were made in October, and the revised bill was passed and promulgated on 3 November 1946 (Emperor Meij's birthday, now Culture Day). The new constitution came into effect from 3 May 1947, since which date Japanese nationals have been "the people" in whom sovereignty resides, rather than "subjects" of a sovereign imperial ruler.

Whether it was wrong of SCAP to force its views on Japan, or whether the views it forced on Japan have not been to Japan's good, is an argument I will leave to others. However one argues, there is no doubt that, under the terms of surrender, SCAP had the authority to do what it did.

One must also recognize the considerable authority the Japanese government continued to have despite SCAP's harnessing. As we will see here, Japan exercised its unharnessed authority with great effect -- to delete and otherwise revise parts of SCAP's proposals that simply were not palatable to the Diet. In this sense, the 1947 Constitution is very much a "Japanese" production.

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Organization of data

Since the purpose of this article is to show how Articles 10 and 14 in the 1947 Constitution came into being, and why they are worded as they are, I will focus entirely on materials that directly reflect the shaping of these articles -- which did not become "10" and "14" until the final stage of adoption.

While I could tell the story like Agatha Christie, and not disclose the final forms of Articles 10 and 14 until the end, I will reveal their final forms at the outset -- as in a Lieutenant Columbo episode, where the motive for murder and murder itself are shown from the very beginning, and the problem remains how Columbo establishes proof.

So without further ado, here is a look at the crime scene -- which we will return to at the end.

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Sources

How the 1947 Constitution came into being can best be seen by directly examining scanned images, and in some cases also transcribed texts, of the primary documents posted by the National Diet Library in a digital exhibition on Constitution Day of May 2003. The following links are to the Japanese and English versions of the exhibition. The transcribed texts of some image files are accessible only from the Japanese version.

日本憲法の誕生

Birth of the Constitution of Japan

All cited documents are identified by the name of the person whose collected papers include the document, and the number assigned to the document in the collection.

The most important collections are those of the principles who were involved in composing and editing the drafts, whether in English or Japanese. All the documents I cite are from the papers of the following people.

Biographies

Insights into the writing of the 1947 Constitution can be found in a number of biographies by or concerning both Japan's and GHQ's participants. The chapter on "The Equal Rights Clause" in Beate Sirota Gordon's memoir, The Only Woman in the Room (Tokyo: Kodansha America, 1997), brings the process of writing and editing to life -- from at least the viewpoint of articles concerning women's rights, which fell to Beate Sirota, all of 22 years old, to draft.

However, the proof of the pudding is in the eating, as the saying goes. What individual participants have said in hindsight, based on memory aided by memos in archives, does not change the content of primary documents, which more or less speak for themselves. Hence I have not gone out of my way to survey the increasing number of published recollections by those who were there.

My main interest in Beate Sirota Gordon -- other than that she has led a life full of remarkable experiences -- is the manner in which, over the years, a small following of fans in Japan, mostly college women, have come to regard her as a hero for her contribution to the legal and social equality of Japanese womanhood.

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Transcriptions

When only scanned images of materials were available, I first transcribed the handwritten, typed, or printed text from the image, then showed deletions as strikeouts and insertions and comments in contrasting colors. When a text version was also available, I first cut and pasted relevant parts and checked them against the script on the image, then marked the text to reflect deletions, insertions, and comments visible on the image.

Early drafts used katakana, sometimes without punctuation or nigori, as was the custom in legal writing at the time. Hiragana replaced katakana during the colloquialization (口語化 kogoka) stage in the Cabinet, prior to submitting the draft as a bill to the Diet.

Even in the colloquialized drafts, older forms of kanji continued to be used, as language reforms had not yet been introduced. However, throughout the following presentation, I have followed the practice adopted by the National Diet Library in its website exhibition, of using present-day simplified characters. Otherwise, all distinctions between kanji and kana are shown, regardless of later changes in writing conventions.

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Translations

The official language of the 1947 Constitution is Japanese. Some, but not all, of the Japanese phrasing reflects translation from English drafts made by GHQ. Article 10 is a colloquialization of a similar article that appeared in the Meiji Constitution and so has nothing to do with GHQ English. While most of Article 14 is inspired by an article in GHQ's draft constitution, nationalization and colloquialization of the original translationese from English resulted in wording and phrasing that have to be understood as Japanese.

The GHQ draft challenged translators, who had to determine the parameters of the meanings intended by GHQ before they could settle on Japanese expressions that captured the sense of GHQ's usage of terms like "natural persons" and "national origin." Not only was the meaning of such terms not clear, but some of the phrasing reflected the haste in which GHQ had come up with the articles on civil rights.

In the following discussion I have always shown available GHQ English versions. Yet at times I have also translated the Japanese in order to show how it differs in some respect from the English that is supposed to have inspired it. All my own translations, whether single words or entire articles, are shown in italics.

In some cases my translation amounts to a "back translation" because I am translating back into English Japanese that was intended to faithfully reflect an English draft. This is particularly true in earlier stages, when those responsible for drafting a constitution were intent on precisely conveying the sense of GHQ's draft. Once Japan regained more control of the process, the translation roles were reversed: that is, it became necessary to translate Japanese into English in order to show GHQ what was being changed in Cabinet committees and revised in the Diet.

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Marking conventions

I have used the following system to differentiate deletions, insertions, comments, and translations from English and Japanese texts.

Transcriptions are shown in plain black text.

Within transcriptions, deletions are shown with stikeouts insertions are shown in cyan.

[ My own comments within citations are enclosed in brackets.]

My own translations, within citations and elsewhere, are italicized.

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Stages

There are many ways to partition the creation of Japan's postwar constitution. Here I have divided the process into seven stages, all intended to facilitate only the task of understanding how nationality, race, and other such attributes figured in the drafting.

1. Early proposals

1.1   11 November 1945 Communist Party proposal
1.2   26 December 1945 Constitution Investigation Association proposal
1.3   Matsumoto Committee proposals
1.4   14 February 1946 Socialist Party proposal

2. Committee on Civil Rights reports
2.1   February 1946 -- Original civil rights committee report
2.2   Feburary 1946 -- Final civil rights committee report

3. GHQ drafts
3.1   13 February 1946 -- GHQ draft
3.2   13 February 1946 -- Japanese translation of GHQ draft
3.3   13 February 1946 -- GHQ draft with editing

4. Nationalization
4.1   28 February 1946 -- 1st Cabinet draft
4.2   1 March 1946 -- 2nd Cabinet draft
4.3   2 March 1946 -- 3rd Cabinet draft
4.4   5 March 1946 -- Bill draft
4.5   6 March 1946 -- Bill accepted by Cabinet
4.6   6 March 1946 -- English version of bill
4.7   6 March 1946 -- Imperial Rescript

5. Colloquialization
5.1   5 April 1946 -- 1st colloquial draft
5.2   13 April 1946 -- 2nd colloquial draft
5.3   15 April 1946 -- 2nd colloquial draft revision
5.4   17 April 1946 -- 3rd colloquial draft revision
5.5   22 April 1946 -- Translation of colloquial draft

6. Final revisions
6.1   20 June 1946 -- Revisions bill
6.2   27-28 July 1946 -- Revisions in HR subcommittee
6.3   21 August 1946 -- Revision bill
6.4   19 October 1946 -- Privy Council examination
6.5   Final phrasing of Articles 10 and 14

7. Wording issues
7.1   "natural persons" and "national origin"
7.2   "the people" and "persons"
7.3   Civil rights of foreigners

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Early proposals for constitutional reform

1.1   11 November 1945 Communist Party proposal
1.2   26 December 1945 Constitution Investigation Association proposal
1.3   Matsumoto Committee proposals
1.4   14 February 1946 Socialist Party proposal

During the first months of the Allied Occupation of Japan, proposals for reforming the Meiji Constitution came from all quarters -- political parties, politicians, government officials, scholars, anyone who felt strongly about the future of Japan's legal foundation as a state. The proposed changes ran from cosmetic to radical. Here we will look at four proposals that reflect the variety of concern about the sort of problems that came to be addressed by Articles 10 and 14.

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1.1   11 November 1945 Communist Party proposal

All political parties at one time or another came up with their own proposals. The first to do so was the Communist Party, free for the first time in two or three decades to convene public meetings and demonstrate. The Communist Party made several proposals, but its first, ratified at a national convention on 8 November 1945 and publicly released on 11 November, included the following provisions.

Source   Manuscript, Sato papers 26, Image 040-001

一、主権は人民に在り

六、階級的並びに民族的差別の根本的廃止

1. Sovereignty to reside in the people.

6. Fundamental abolition of class and ethnoracial discrimination.

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1.2   26 December 1945 Constitution Investigation Association proposal

SCAP ignored most proposals but gave considerable attention to the one submitted to the Cabinet on 26 December 1945 by the Constitution Investigation Association (Kenpo Kenkyukai 憲法研究会), a private group of concerned scholars. By the end of the year, the Allied Translator and Interpreter Service (ATIS Tsuyaku/Hon'yakubu 通訳・翻訳部) had put the proposal into English.

The association's proposal called for popular sovereignty -- i.e., a shift from 臣民 (shinmin, "subjects") to 国民 (kokumin, "nationals") -- while preserving the emperor as a ceremonial head of state. And several articles addressed problems of discrimination.

Source   Printed document, Irie papers 11, Images 052-001 to 052-002

国民権利義務

一 [1]、国民ハ法律ノ前ニ平等ニシテ出生又ハ身分ニ基ク一切ノ差別ハ之ヲ廃止ス
一 [2]、爵位勲章其ノ他ノ栄典ハ総テ廃止ス

[Articles 3-10 omitted.]

一 [11]、男女ハ公的並私的ニ完全ニ平等ノ権利ヲ享有ス
一 [12]、民族人種ニヨル差別ヲ禁ス
一 [13]、国民ハ民主主義並平和思想ニ基ク人格完成社会道徳確立諸民族トノ協同ニ努ムルノ義務ヲ有ス

Rights and duties of nationals

1 [1], Nationals shall to be equal before the law and all discrimination based on birth or status are abolished.
1 [2], Titles, orders, and other distinctions of honor are abolished.

[Articles 3-10 omitted.]

1 [11], Men and woman completely possess equal rights publicly and privately.
1 [12], Discrimination on account of racioethnicity or race is prohibited.
1 [13], Nationals have the duty to endeavor to cooperate with all racioethnic groups in the establishment of character completion and social morality based on democracy and peaceful thinking.

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1.3   Matsumoto Committee proposals

Minister of State Matsumoto Jiro, a minister without portfolio, was the chairman of the Constitution Revision Committee (Kenpo mondai chosa iinkai 憲法問題調査委員会) of the Cabinet (Naikaku 内閣). Principle members of the committee included Sato Tatsuo and Irie Toshio.

The Matsumoto Committee came up with several plans. The most important for our purposes is called "Plan B" (Otsu-an 乙案) and dated 2 February 1946. The plan was first drafted as "Plan A" (Ko-an 甲案) by Irie Toshio on 23 January.

On 8 February the Matsumoto Committee submitted an outline of its proposal to SCAP for review. On 13 February, GHQ outright rejected the proposal -- refused even to discuss it -- and dropped its own draft on the table with the understanding that Japan was expected to base its new counstitution on the GHQ draft.

All early drafts of proposals knocked around in the Matsumoto Committee show that the committee was attempting to salvage as much as possible of the Meiji Constitution. In the 8 February outline, the term 臣民 (shimin, "subjects") continued to be used. In Plan B, however, 臣民 had been replaced by 国民 (kokumin, "nationals"), and hence Chapter II -- called 臣民権利義務 (Shinmin kenri gimu, "Rights and duties of subjects") in the Meiji Constitution -- had become 国民権利義務 (Kokumin kenri gimu, "Rights and duties of nationals").

Matsumoto Plan B (2 February 1946)

Article 10 in the 1947 Constitution originates as Article 18 in the Meiji Constitution, which Plan B of the Matsumoto Committee proposed to leave unchanged.

Source   Printed document, Irie papers 9, Image 067b-003

第二章 国民権利義務

第十八条 現状

Chapter II. Rights and duties of nationals

Article 18. Status quo

By "status quo" is meant that the wording of Article 18 would remain unchanged -- except that 臣民 would become 国民. The number of the article was also subject to change, as other articles in the Meiji Constitution were marked for deletion, while other might be moved or new ones inserted.

Meiji Constitution

The corresponding chapter and article in the 1890 Meiji Constitution are as follows.

第二章 臣民権利義務

第十八条 日本臣民タルノ要件ハ法律ノ定ムル所ニ依ル

CHAPTER II. RIGHTS AND DUTIES OF SUBJECTS

Article 18. The conditions necessary for being a Japanese subject shall be determined by law.

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1.4   24 February 1946 Socialist Party proposal

The Socialist Party circulated its first proposal while the Cabinet was considering whether to formally accept GHQ's draft as a working document. I mention the Socialist Party proposal partly because it addressed 差別 (sabetsu, "discrimination"), and partly because, unlike other proposals, it used the word 公民 (komin, "citizen").

Source   Printed document, Irie papers 11, Image 084-002

主権と統治権
一、主権 主権は国家(天皇を含む国民協同体)に在り
二、統治権 統治権は之を分割し、主要部を議会に、一部を天皇に帰属(天皇大権大幅制限)せしめ、天皇制を存置す

国民の権利義務
三、国民は一切平等なり、特別身分による総ての差別を撤廃す
四、華族、位階、勲等を総て廃止す
九、公民は . . . [Rest of article omitted.]

Sovereignty and right of rule
1. Sovereighty: Sovereighty to reside in the state (a national Gemeinschaft including the emperor)
2. Right to rule: As for right of rule, divide this, attribute the principal part to the parliament, one part to the emperor (the emperor's prerogatives greatly limited), retain the emperor system

Rights and duties of nationals
3. Nationals are to be entirely equal, eliminate all discrimination on account of special status
4. Abolish all peerage, hierarchy [rank], and orders [of merit] et cetera
9. Citizens . . . [Rest of article omitted]

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2. Reports of Committee on Civil Rights

2.1   February 1946 -- Original civil rights committee report
2.2   Feburary 1946 -- Final civil rights committee report

The Committee on Civil Rights was responsible for developing "Chapter III" of the constitution, which GHQ was planning to call "Civil Rights". The first section, called "General", included ten articles.

"natural persons" and "national origin"

One of the general general articles on civil rights would have guaranteed all natural persons equality before the law and prohibited discrimination against such persons because of national origin among other traits.

This survived to become Article 14 in the 1947 Constitution. However, the terms national persons and national origin were first problems for translators because they were not clear, then problems for Japan's legalists when GHQ clarified their intent.

Neither term survived the scrutiny of Japan's legalists.

natural persons, however it was dubbed into Japanese, found no fertile soil as the evolving draft of the constitution began to focus on Japanese nationals.

national orgin continues to be a bone of contention in Japan's discussions with the United Nations Committee on the Elimination of Racial Discrimination (CERD), which oversees complience with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Japan's objections to the term today are the same raised in 1946 -- namely, the term should not be conflated with "race" but should mean the legal nationality one had before, say, migrating from one country to another, or before naturalizing in a country in which one was born an alien.

"aliens" and "naturalization"

Another general article would have guaranteed "aliens" equal protection under Japanese law and prohibited compulsory "naturalization". This article was quickly dropped in early rounds.

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2.1   February 1946 -- Original civil rights committee report

The following extract is from "The original report of the Committee on Civil Rights" (according to a handwritten memo clipped to the report).

Source   Typescript with hand editing, Hussey papers 24-G-1-1 and 24-G-2-1 to 24-G-2-3, Images 002-47-100 to 002-47-103

Chapter III

Civil Rights

I. GENERAL

[Articles 1 to 5 omitted. Article 2 was marked for deletion.]

6. All natural persons are equal before the Law. INSERT [Note: "INSERT" not specified.] No discrimination shall be authorized or tolerated in political, economic, educational, and domestic relations on account of race, creed, sex, caste or national origin. [Rest of article omitted.]

[Articles 7 to 9 omitted. Article 9 marked was for deletion.]

10. Aliens shall be entitled to the equal protection of Japanese laws. provided they recognize the obligation of observing the laws. [Note: Illegible correction of understruck phrase also crossed out.] When charged with any offense they are entitled to use the assistance of their diplomatic representatives and of interpreters of their own choosing. Naturalization shall not be made compulsory.

[End of "General" section of "Civil Rights".]

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2.2   Feburary 1946 -- Final civil rights committee report

The final copy of the report by the Committee on Civil Rights left article numbers blank.

Source   Typescript, Hussey papers, Images hussey-104 to hussey-105

T O PS E C R E T

GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS
Government Section
Public Administration Division

MEMORANDUM FOR THE CHIEF, GOVERNMENT SECTION.

The Committee on Civil Rights submits the following report:

CHAPTER III
CIVIL RIGHTS
I. GENERAL

[First four articles omitted.]

Article [no number] All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic, educational, and domestic relations on account of race, creed, sex, caste or national origin. [Rest of article omitted.]

[Next two articles omitted.]

Article [no number] Aliens shall be entitled to the equal protection of law. When charged with any offense they are entitled to use the assistance of their diplomatic representatives and of interpreters of their own choosing.

[End of "General" section of "Civil Rights".]

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3. GHQ drafts

3.1   13 February 1946 -- GHQ draft
3.2   13 February 1946 -- Japanese translation of GHQ draft
3.3   13 February 1946 -- GHQ draft with editing

Having dismissed the 8 February 1946 proposal submitted by the Matsumoto Committee, GHQ drafted its own constitution, called the "GHQ draft" or "MacArthur draft". On 13 February, at a meeting with Japanese officials who expected to hear its reaction to the Matsumoto proposal, GHQ distributed copies of its own draft, gave the officials a few minutes to read it, and ordered them to follow it.

The content of the GHQ draft reflects the reports of various working committees, including the Committee on Civil Rights. In the GHQ draft, Chapter III becomes "Rights and duties of the people" -- which actually reflects the structure of Chapter II of the Meiji Constitution, which is "Rights and duties of the subjects".

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3.1   13 February 1946 -- GHQ draft

The Government Section of GHQ of SCAP finalized the draft of its proposed constitution on 12 February and gave copies to Japanese officials on 13 February.

Source   Typescript, Hussey papers 12, Images 076-e008 to 076-e009

CHAPTER III

Rights and Duties of the People

[Articles IX to XII omitted.]

Article XIII. All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic or social relations on account of race, creed, sex, social status, caste or national origin. [Rest of article omitted.]

[Articles XIV and XV omitted.]

Article XVI. Aliens shall be entitled to the equal protection of law.

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3.2   13 February 1946 -- Japanese translation of GHQ draft

GHQ submitted its draft only in English. It was then translated as follows.

Source   Printed document, Irie papers 15, Images 076-008 to 076-010

第三章 人民ノ権利及義務

[Articles IX to XII omitted.]

第十三条 一切ノ自然人ハ法律上平等ナリ政治的、経済的又ハ社会的関係ニ於テ人種、信条、性別、社会的身分、階級又ハ国籍起源ノ如何ニ依リ如何ナル差別的待遇モ許容又ハ黙認セラルルコト無カルヘシ [Rest of article omitted.]

[Articles XIV and XV omitted.]

第十六条 外国人ハ平等ニ法律ノ保護ヲ受クル権利ヲ有ス

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3.3   13 February 1946 -- GHQ draft with editing

The copy of the GHQ draft among the papers of Sato Tatsuo, one of the principles in the drafting of the postwar constitution, was edited in pencil, apparently by Sato. It is not clear whose thinking is reflected in the changes, but some of the changes are clearly reflected in later drafts.

Article XVI was modified as shown below then entirely crossed out. The numbers of Articles XVII, XVIII, and subsequent articles were edited to XVI, XVII, and so forth.

Source   Typescript with hand editing, Sato papers 31, Images 105-004 to 105-005

CHAPTER III

Rights and Duties of the People

[Articles IX to XII omitted.]

Article XIII. All natural persons, Japanese or alien, are equal before the law. No discrimination shall be authorized or tolerated in political, economic or social relations on account of race, creed, sex, social status, caste clan or nationality origin. [Rest of article omitted.]

[Articles XIV and XV omitted.]

Article XVI. Aliens shall be entitled to the equal same protection of law as Japanese (are?).

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4. Nationalization

4.1   28 February 1946 -- 1st Cabinet draft
4.2   1 March 1946 -- 2nd Cabinet draft
4.3   2 March 1946 -- 3rd Cabinet draft
4.4   5 March 1946 -- Bill draft
4.5   6 March 1946 -- Bill accepted by Cabinet
4.6   6 March 1946 -- English version of bill
4.7   6 March 1946 -- Imperial Rescript

At this stage, given an ultimatum to work within the framework of the GHQ draft, Japan's constitution committee writers immediately began to pull the structure of the GHQ draft toward the structure of the Meiji Constitution -- which mainly defined the legal paramaters of life for Japanese nationals. In this process of nationalization, many references to people in general were replaced by "the people" meaning Japanese nationals.

Nationalization of the civil rights articles was, for the most part, a matter of bringing the more romantic parameters of GHQ's draft into line with the realities of both Japanese and international law. There was little precedent -- certainly not in the US Constitution, or in US Federal statutes -- for treating nationals and non-nationals alike.

Moreover, GHQ's attempt to impose vague terms like "natural persons" and "national origin" on Japan's constitution did not resonate with Japanese legalists who preferred clearer usage. This issue is discussed as part of the dispute a month over the distinction between "the people" and "persons" (see 7.).

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4.1   28 February 1946 -- 1st Cabinet draft

The Cabinet, when relating to GHQ on 28 February 1946 its decision to accept its draft as a working document, submitted the following draft. Though based on the GHQ draft, this first Cabinet draft reflects early efforts at nationalization, including the salvaging elements of the Meiji Constitution along lines proposed by the Matsumoto Committee.

Note that, in removing the reference to 国籍起源 (national origin) in Article 13 and introducing only 国籍 (nationality) in Article 16, Japanese lawmakers are doing two things: (1) facilitating the nationalization of Article 13, which now refers to 国民, leaving Article 16 for 外国人 irrespective of their 国籍; and (2) deleting "national origin", which they dislike because of its racilalist nuances.

Source   Manuscript, 国立公文書館 (National Archives of Japan), Images 086-005 to 086-007

第三章 国民 (日本国人) ノ権利及義務

(現行) 第一条 国民 (日本国人) タルノ要件ハ法律ノ定ムル所ニ依ル。

[Articles 2 to 4 omitted.]

13 第五条 国民ハ凡て法律の前ニ平等トス。
国民ハ門閥、出生、又ハ性別ニ依リ政治上、経済上、其ノ他一般ノ社会関係ニ於テ差別ヲ受クルコトナシ。[Rest of article omitted.]

16 第六条 外国人ハ (国籍ノ如何ヲ問ハズ) 均シク法律ノ保護ヲ受クルノ権利ヲ有ス

Chapter III Rights and duties of nationals (persons of the country of Japan)

(Existing) Article 1. The conditions necessary for being a national (a person of the country of Japan) [kokumin (Nihonkokujin)] shall be determined by law.

[Articles 2 to 4 omitted.]

13 Article 5. Nationals all shall be equal before the law.
Nationals shall not receive discrimination in relation political, economic, and other general social relationships on account of family position [family character, lineage, pedigree], birth, or sex.

16 Article 6. Aliens shall have the right to receive the protection of law equally (without regard to nationality).

Salvaging Article 18 of the Meiji Constitution

By 現行 is meant 大日本帝国憲法 (Constitution of the Empire of Japan) or the 1890 Meiji Constitution. This is still the law of the land, and the first article of Chapter 2, called 臣民権利義務 (Rights and Duties of Subjects), defines 臣民 (shinmin, "subjects") as follows.

第十八条 日本臣民タルノ要件ハ法律ノ定ムル所ニ依ル

Article 18. The conditions necessary for being a Japanese subject shall be determined by law.

The Matsumoto draft, which SCAP had rejected prior to issuing the GHQ draft, called for changing the name of Chapter 2 in the Meiji Constitution from 臣民権利義務 to 国民権利義務 and would have left Article 18 the same except for the similar change from 臣民 to 国民.

(現行), and the Arabic numbers before the articles, appear in the upper margin of the cited manuscript. (現行) means (existing) and is an abbreviation for (現行憲法) or (existing constitution) -- i.e., the Meiji Constitution. The Arabic numbers show what number an article is slated to become in the next draft. There is no Arabic number associated with the (現行) article, for it has already been marked for deletion.

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4.2   1 March 1946 -- 2nd Cabinet draft

The main point to observe in this second draft is that the article adapted from Article 18 of the existing constitution has been deleted as unnecessary. This decision is later reversed, in a last-minute effort to make the constitution a more definitive instrument.

The manuscript of this draft is simpiler to the first (28 February) draft except that its articles are numbered sequentially throughout the draft, rather than starting from one within each chapter. This suggests that the writers are more confident the overall structure, and order of articles, will no longer radically change.

This copy shows the hand of an editor.

Source   Manuscript with hand editing, Irie papers 15, Images 087-005 to 087-007

第三章 日本国民 (日本国人) ノ権利及義務

不要( 第十条 国民 (日本国人) タルノ要件ハ法律ノ定ムル所ニ依ル。)

[Articles 9 to 12 omitted.]

13 第十四条 凡テノ国民ハ法律ノ下ニ平等ニシテ人種、信条、性別、社会上ノ身分又ハ門閥ニ依リ政治上、経済上又ハ社会上ノ関係ニ於テ差別セラルルコトナシ。 [Rest of article omitted.]

[Articles 14 and 15 omitted.]

16 第十五条 外国人ハ均シク法律ノ保護ヲ受クルノ権利ヲ有ス。

日本国人 as a definition of 日本国民

Note that in this draft 日本国民 has replaced 国民 in the title of Chapter III. 日本国人 still appears in parentheses to define what is meant by(日本)国民.

日本国人 would appear to be nothing more than a formalization of 日本人 -- the more colloquial reference to people who are considered "Japanese" by law. There is some tendencey for 人 to be more "racial" or at least "distict" than 民 -- which in term terminoloy means only an affiliate. 沖縄県民 suggests that a person is merely an affiliate of 沖縄県 as a prefecture. 沖縄人 has racioethnic nuances.

However, since the Nationality Law which the article alludes to does not racialize the qualifications for acquiring nationality, there is no cause to regard 日本国人 (person of Japan, Japanese) as more than an attempt to explain 日本国民 (affiliate of Japan, national of Japan) in more concrete terms.

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4.3   2 March 1946 -- 3rd Cabinet draft

This is a printed version of the second (1 March) manuscript.

The article defining 国民 has been deleted as unecessary. It was restored at the very last stage of revision in order to make the constitution more complete as a legal statement. Since the constitution is mainly about 国民, then it needs to define who qualifies as 国民.

Source   Printed document, Irie papers 15, Images 088-003 to 088-004

第三章 国民ノ権利及義務

[Articles 10 to 12 omitted.]

第十三条 凡テノ国民ハ法律ノ下ニ平等ニシテ、人種、信条、性別、社会上ノ身分又ハ門閥ニ依リ政治上、経済上又ハ社会上ノ関係ニ於テ差別セラルルコトナシ。 [Rest of article omitted.]

第十四条 外国人ハ均シク法律ノ保護ヲ受クルノ権利ヲ有ス。

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4.4   5 March 1946 -- Bill draft

This copy of the 2 March draft shows handwritten revisions which reflect some of the changes Japan and GHQ agreed to during their 4-5 March negotiations.

Source   Printed document with hand editing, Sato papers 40, Image 090-003

第十三条 凡テノ国民 自然人其ノ日本国民タルト否トヲ問ハズ法律ノ下ニ平等ニシテ、人種、信条、性別、社会上ノ身分ハ門閥又ハ国籍ニ依リ政治上、経済上又ハ社会上ノ関係ニ於テ差別セラルルコトナシ。[Rest of article omitted.]

Here is what the article looks like on a clean copy of the 5 March draft as presented to the Cabinet on 6 March, showing revisions agreed to during the 4-5 March meetings.

Source   Printed document, Sato papers 41, Image 091-004

第十三条 凡テノ自然人ハ其ノ日本国民タルト否トヲ問ハズ法律ノ下ニ平等ニシテ、人種、信条、性別、社会上ノ身分若ハ門閥又ハ国籍ニ依リ政治上、経済上又ハ社会上ノ関係ニ於テ差別セラルルコトナシ。[Rest of article omitted.]

Article 13 All natural persons regardless of whether or not they are nationals of Japan shall be equal under the law, and they shall not be discriminated in political, economic, or social relations on account of race, creed, sex, social status or family origin or nationality. [Rest of article omitted.]

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4.5   6 March 1946 -- Bill accepted by Cabinet

In this final version of the bill, 凡テノ自然人ハ其ノ日本国民タルト否トヲ問ハズ [Subete no shizenjin wa sono Nihon kokumin taru to iya to o towazu, All natural persons whether or not they are nationals of Japan] and 又ハ国籍 [mata wa kokuseki, or nationality] have been replaced with simply 凡ソ人ハ [Oyoso hito wa, all persons].

Also at this stage, 社会上ノ身分若ハ門閥 [shakai-jo no mibun moshiku wa monbatsu, social status or family position] has been replaced with 社会的地位、又ハ門地 [shakai-teki chii, mata wa monchi, social position, or family position].

Source   Printed document, Sato papers 46, Images 093-003 and 093-004

第三章 国民ノ権利及義務

第十三条 凡ソ人ハ法ノ下ニ平等ニシテ人種、信条、性別、社会的地位、又ハ門地ニ依リ政治的、経済的又ハ社会的関係ニ於テ差別ヲ受クルコトナキコト [Rest of article omitted.]

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4.7   6 March 1946 -- English version of bill

The English version of the bill approved by the Cabinet persists with "All natural persons" despite the fact that 凡テノ自然人ハ [Subete no shizenjin, all natural persons] has become just 凡ソ人 [Oyoso hito, All persons] in the Japanese draft.

Source   Typescript, Hussey papers 26, Images 093-e005 and 093-e006

CHAPTER 3

RIGHTS AND DUTIES OF THE PEOPLE

Article XIII. All natural persons are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status, or family origin. [Rest of article omitted.]

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4.7   6 March 1946 -- Imperial Rescript

On 6 March 1946, Hirohito issued an Imperial Rescript expressing his expectatins that the people of Japan accept the spirit of the constitution refevision bill.

Source of Japanese text   Internet (官報号外:昭和21年3月6日発行)

Source of received English version   Imperial Rescript Advocating Changes in Japanese Constitution (March 6, 1946), in The Department of State (compiler), Occupation of Japan: Policy and Progress, Publication 2671, Far Eastern Series 17, Washington, D.C.: United States Government Printing Office, [1946], Appendix 22, page 117.

Japanese

朕曩ニポツダム宣言ヲ受諾セルニ伴ヒ日本国政治ノ最終ノ形態ハ日本国民ノ自由ニ表明シタル意思ニヨリ決定セラルベキモノナルニ顧ミ日本国民ガ正義ノ自覚ニ依リテ平和ノ生活ヲ享有シ文化ノ向上ヲ希求シ進ンデ戦争ヲ抛棄シテ誼ヲ万邦ニ修ムルノ決意ナルヲ念ヒ乃チ国民ノ総意ヲ基調トシ人格ノ基本的権利ヲ尊重スルノ主義ニ則リ憲法ニ根本的ノ改正ヲ加ヘ以テ国家再建ノ礎ヲ定メムコトヲ庶幾フ政府当局其レ克ク朕ノ意ヲ体シ必ズ此ノ目的ヲ達成セムコトヲ期セヨ

Structural English translation

I heed that concomitant upon [my] acceptance recently of the Potsdam Declaration the final form of the government of Japan is something to be determined according to the freely expressed will of the people of Japan; and [I] feel the people of Japan are resolved to enjoy a life of peace based on an awareness of justice, to seek improvement of [their] culture, and to settle affairs with myriad countries by actively abandoning war; and [hence I] entreat [you] to add basic revisions to the Constitution abiding by principles of making the general will of the people the underlying tone and respecting the fundamental human rights of character, thereby setting the cornerstone of national reconstruction; and [I] expect Government agencies with authority to well embody my will and surely achieve this goal.

Received English version

Consequent upon our acceptance of the Potsdam Declaration the ultimate form of Japanese Government is to be determined by the freely expressed will of the Japanese people. I am fully aware of our nation's strong consciousness of justice, its aspirations to live a peaceful life and promote cultural enlightenment and its firm resolve to renounce war and to foster friendship with all countries of the world.

It is, therefore, my desire that the Constitution of our empire be revised drastically upon the basis of the general will of the people and the principle of respect for the fundamental human rights.

I command hereby that competent authorities of my government put forth in conformity with my wish their best efforts toward the accomplishment of this end.

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5. Colloquialization

5.1   5 April 1946 -- 1st colloquial draft
5.2   13 April 1946 -- 2nd colloquial draft
5.3   15 April 1946 -- 2nd colloquial draft revision
5.4   17 April 1946 -- 3rd colloquial draft revision
5.5   22 April 1946 -- Translation of colloquial draft

Having cleared the Cabinet, the draft bill underwent colloquialization (kogoka 口語化) in order to make it more easy to understand for the general reader. At this stage, Japanese words reflecting "the people" and "persons" again became an issue (see 7.).

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5.1   5 April 1946 -- 1st colloquial draft

The first colloquial draft looks like this. This draft shows editing that informed the second draft of 13 April (see below).

Source   Manuscript with hand editing, Sato papers 72, Images 101-006 and 101-007

第三章 国民の権利及び義務

第十三条 すべて国民は、法の下に平等であって、人種、信条、性別、社会的身分又は門地により、政治的、経済的又は社会的関係において差別を受けない。 [Rest of article omitted.]

凡そ人は nationalized to すべて国民は

Note that すべて国民は (subete kokumin wa) has replaced 凡そ人は (oyoso hito wa), and 社会的地位 (shakai-teki chii, social position) is back to being 社会的身分 (shakai-teki mibun, social status). Replacing 地位 with 身分 is colloquialization because 身分 is the more precise referecne to the sort of class/caste distinctions that had been made in Japan historically.

Howver, 凡そ人は (oyoso hito wa, all persons) and すべて国民は (subete kokumin wa, "all of the people", all nationals) are not synonyms. Changing 凡そ人は to すべて国民は was an act of nationalization rather than colloquialization. The object of this change was clearly to formally restrict the reach of Article 14 to Japanese nationals.

Note that 凡そ (oyoso) was widely used in older laws to mark the start of an article, which typically began with a topic statement like 凡そ・・・は or 凡そ・・・も. As such it emphasizes the "as for . . ." or " . . . as well" feelings of these statements. However, it often has the feeling of qualifiers liker all, generally, and about. Here it is very possible that すべて (subete) represents a transformation of 凡そ (oyoso) to 凡て (subete).

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5.2   13 April 1946 -- 2nd colloquial draft

The second colloquial draft shows the results of editing the first draft. It reflects the deletion of の in すべての that was marked on the 5 April copy, and shows a comma inserted after おいて.

Source   Manuscript, Sato papers 72, Images 106-008 and 106-009

第三章 国民の権利及び義務

第十三条 すべて国民は、法の下に平等であって、人種、信条、性別、社会的身分又は門地により、政治的、経済的又は社会的関係において、差別を受けない。 [Rest of article omitted.]

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5.3   15 April 1946 -- 2nd colloquial draft revisions

Colloquialization of the 6 March draft gave rise to more wording issues. The most interesting and significant dispute arose over differenes in "the people" and "persons" in English and 国民は (kokumin wa) and 何人も (nanbito mo).

At an earlier stage of colloquialization, Chapter III was nationalized in the sense that すべて国民は (subete kokumin wa) became the topical subject of most articles. By the 17 April draft, 何人も (nanbito mo) had replaced すべて国民は in ten of thirteen articles in Chapter III. A 15 April 1946 memo by Sato Tatsuo sheds some light on these revisions (see 7.1).

Ten articles denationalized

An edited manuscript of the second colloquialization draft of 13 April 1946 shows that the following articles in Chapter III were denationalized by changing すべて国民は (subete kokumin wa) to 何人も (nanbito mo).

Note: The number of the corresponding article in the final, adopted version of the 1947 Constitution are shown in [brackets]. Several of the early articles were later merged with others, or broken up into others, or deleted, and a few new articles were added, and so the descriptions in (parentheses) are not to be taken as definitive of the articles at all stages.

Source   Manuscript with handwritten corrections, Sato papers 72, Images 106-008 to 106-015

Article 15 [16] (right of peaceful petition)

Article 16 [18] (prohibition of bondage, and of involuntary servitude except as punishment for crime)

Article 18 [20] (freedom of religion)

Article 20 [22] (freedom to change address, move to foreign country, and renounce nationality)

Article 28 [31] (no deprivation of life or liberty, and no penalty imposed, except as by law)

Article 29 [31] (right to trial by court of law)

Article 30 [33] (no apprehension except by warrant)

Article 31 [34] (no arrest or detainment without informing of charges and without privilege of counsel)

Article 35 [38] (no compelling to testify against oneself)

Article 36 [39] (no criminally liability for act that was lawful at time it was committed, or after aquital)

Articles not denationalized

The first five articles -- Articles 10-14 [11-15] -- remained nationalized with the topical subject 国民 (kokumin). The last of this group, Article 14 [15], begins with the statement -- unchanged in the final draft -- 公務員を選定し、及びこれを罷免することは、国民固有の権利である (The people have the inalienable right to choose their public officials and to dismiss them). All courts have equated 国民 ("the people") of this articles with 日本国民 ("Japanese nationals") in Article 10.

Three articles -- 24 [26], 25 [27], and 32 [35] -- remained nationalized at this stage.

The hand edited 13 April 1946 manuscript (see 5.2) shows that, in Article 24 [26], concerning the right to education, すべて国民は was first crossed out in favor of 何人も, and then 何人も was crossed out in favor of すべて国民は. This reflects either a correction of an error made in haste, or vacillation on someone's part.

Article 32 [35] was later denationalized.

For a fuller picture of nationalization throughout the development of the 1947 Constitution, see Distribution of "the people" and "persons".

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5.4   17 April 1946 -- 3rd colloquial draft revision

This printed third draft is the same as the manuscript second draft regarding Article 13 -- except that it shows であつて instead of であって.

Source   Printed document, Sato Tatsuo 74, images 109-004 to 109-005

第三章 国民の権利及び義務

第十三条 すべて国民は、法の下に平等であつて、人種、信条、性別、社会的身分又は門地により、政治的、経済的又は社会的関係において、差別を受けない。 [Rest of article omitted.]

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5.5   22 April 1946 -- Translation of colloquial draft

A translation of the 17 April 1946 colloquial draft was presented to GHQ on 22 April.

Source   Japanese Draft Constitution, in The Department of State (compiler), Occupation of Japan: Policy and Progress, Publication 2671, Far Eastern Series 17, Washington, D.C.: United States Government Printing Office, [1946], Appendix 23, pages 117-132.

Chapter 3   Rights and Duties of the People

Article XIII   All of the people are equal under the law and there shall be no discrimination in political, economic, or social relations because of race, creed, sex, social status, or family origin. [Rest of article omitted.]

Note that "All of the people" in this draft has replaced "All natural persons" in the 6 March draft. The two commas after economic and status do not appear in the final English version. Otherwise, from this point the above English phrasing remains unchanged.

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6. Final revisions

6.1   20 June 1946 -- Revisions bill
6.2   27-28 July 1946 -- Revisions in HR subcommittee
6.3   21 August 1946 -- Revision bill
6.4   19 October 1946 -- Privy Council examination
6.5   Final phrasing of Articles 10 and 14

As soon as the Diet formally acceted the Cabinet draft as a bill, committees went to work revising it. The revision process was paced at about one month for each legislative hurdle, and by late October the Privy Council had approved a revised bill for adoption and promulgation in early November.

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6.1   20 June 1946 -- Revisions bill

Source   Printed document with hand comments, Sato papers 130, Images 117-004-117-005

There are no changes in the phrasing of Article 13 (Article 14 in final draft). Nor are there any indications at this point of need to restore the article that would have defined 国民, which had been deleted from an earlier draft and would later become Article 10.

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6.2   27-28 July 1946 -- Revisions in HR subcommittee

The House of Representatives subcommittee inserted Article 10 as the first article of Chapter III. This caused all subsequent articles to be renumbered, hence Article 13 became Article 14.

Article 10 was a colloquialized version of Article 18 in the Meiji Consitition with 国民 (kokumin, "nationals") instead of 臣民 (shinmin, "subjects"). This copy is missing a period at the end.

Article 13 [14] was slightly rephrased. 差別を受けない (sabetsu o ukenai, "shall not receive discrimination") became 差別されない (sabetsu sarenai, "shall not be discriminated"). This was the last revision.

Source   Printed document with hand editing and comments, Sato papers 156, Images 123-004 to 123-005

第三章 国民の権利及び義務

第十条 日本国民たる要件は、法律でこれを定める

第十三条 すべて国民は、法の下に平等であつて、人種、信条、性別、社会的身分又は門地により、政治的、経済的又は社会的関係において、差別を受けないされない。[Rest of article omitted.]

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6.3   21 August 1946 -- Revision bill

The text of the revision bill, which reads vertically from right to left, is printed with scoring along the left side of the wording that was to be replaced, and with the new wording along the right side. Because here the text runs horizontally, I have underscored the affected wording and shown the new wording to the right.

Source   Printed document showing precisely what is to be changed, Sato papers 208, Images 124.1-004 to 124.1-005

第三章 国民の権利及び義務

第十条 日本国民たる要件は、法律でこれを定める。

十三十四条 すべて国民は、法の下に平等であつて、人種、信条、性別、社会的身分又は門地により、政治的、経済的又は社会的関係において、差別を受けないされない[Rest of article omitted.]

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6.4   19 October 1946 -- Privy Council examination

The report given the Privy Council explains some problems and gives some reasons for changes.

Source   Manuscript, Formal review by Privy Council following decision made by 90th Session of Diet, Image 129.1-005

第三章。については多くの問題が生じたが最後には少なくなった。
一0条は、当初は不必要と考へてゐたが、憲法の体裁をとゝのへる必要から挿入されたものである。

Chapter 3. Concerning [this chapter] many problems arose but in the end [the problems] became few.
As for Article 10, at first [we] thought it unnecessary, but it is inserted from the need to adjust the form of the Constitution.

In other words, it was as necessary in the new constitution to define who qualified as 国民 -- i.e., "the people [of the country]" or "nationals" who share possession of the state's sovereignty -- just as it was necessary in the Meiji Constitution to define who qualified as 臣民 -- the subjects who owed their allegience to the Emperor.

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6.5   Final phrasing of Articles 10 and 14

The new constitution was adopted and promulated on 3 November. It would come into effect six months later, on 3 May 1947, now a national holiday called 憲法記念日 (Kenpo Kinenbi, "Constitution Day").

Here is the final wording of Articles 10 and 14. I have also shown the final wording of Article 44, which echoes the phrasing of the first paragraph of Article 14.

Japanese

第三章 国民の権利及び義務

第十条 日本国民たる要件は、法律でこれを定める。

第十四条 すべて国民は、法の下に平等であつて、人種、信条、性別、社会的身分又は門地により、政治的、経済的又は社会的関係において、差別されない。 [Rest of article omitted.]

第四十四条  両議院の議員及びその選挙人の資格は、法律でこれを定める。但し、人種、信条、性別、社会的身分、門地、教育、財産又は収入によつて差別してはならない。

English

Chapter III Rights and Duties of the People

Article 10. The conditions necessary for being a Japanese national shall be determined by law.

Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin. [Rest of article omitted.]

Article 44. The qualifications of members of both Houses and their electors shall be fixed by law. However, there shall be no discrimination because of race, creed, sex, social status, family origin, education, property or income.

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7. Wording issues

7.1   "natural persons" and "national origin"
7.2   "the people" and "persons"
7.3   Civil rights of foreigners

Throughout the development of the 1947 Constitution, there were controversies over the meanings of words. Here we will look at two documented disputes, one concerning "natural persons" and "national origin", the other involving "the people" and "persons".

The controversy over the boundary between "the people" and "persons" continues today in court rulings on the extent to which the 1947 Constitution protects the civil rights of foreigners.

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7.1   "natural persons" and "national origin"

The meanings "natural persons" and "national origin" were the topic of a memo by Sato Toshio concerning meetings on 4 and 5 March, when Japan and GHQ negotiated and agreed to changes in wording to bring the Cabinet draft closer to GHQ's intentions.

Source   Manuscript, Irie papers 15, Images 089-005 and 089-006. Image 089-005 shows two pages. A note has been pasted to the top margin of the left page, covering part of text we are concerend with. Image 089-006 shows same pages with the note lifted to reveal the text, which I have transcribed below.

第十三条 「ナチユラル・パーソンズ」ハ自然人トスベシ尚「ナシヨナル・オリジン」ヲ脱セリト云フ、之ハ「人種」ニ含ムト考ヘタリト、述ベタルモ、ソレハ違フト云フ、然ラバ XVI ノ外国人ノ条文トノ関係如何ト述ベタルニ夫レデハ XVI ヲ削ツテ之ニ合スベシトテ(XVI 当方案十四条ノ「均シク」(equal protection)ノ意ヲ質シタルニ日本国民ト イクオール ナリト云フ) 「自然人・・・タルト・・・タルトヲ問ハズ」トシ門閥ノ下ニ「又ハ国籍」ヲ入レルコトニシテ落付ク。(ナショナル・オリジンハ出身国ト云フベキカ)

The above memo is a stream-of-consciousness take on the exchange between GHQ delegates and and the Cabinet committee members. The following translation reflects my speculation as to the subjects of the verbs -- "GHQ" or "we [Cabinet committee]".

[Concerning] Article 13 [GHQ] says "natural persons" should be 自然人 [shizenjin] and moreover [we] had removed "national origin"; Though [we] conveyed that [we] think this is included in 人種 [jinshu, "race"], [they] say that's different; when we conveyed in that case what about the relationship with the 外国人 [gaikokujin, "aliens"] provision of [Article] XVI [in GHQ draft], [GHQ] said in that case [you] ought to delete XVI and combine it with this [article] (When [GHQ] asked the meaning of 均シク (equal protection)in [Article] XVI [of GHQ draft] this draft Article 14 [we] said it is イクオール [equal] to 日本国民 [Nihon kokumin, Japanese nationals]) [We] settled on making [the first phrase of Article 13 自然人・・・タルト・・・タルトヲ問ハズ [COMMENT] and on inserting 又ハ国籍 [mata wa kokuseki, "or nationality"] under 門閥 [monbatsu, "family origin"]. (As for ナショナル・オリジン ["national origin"] [we wondered if we] should say 出身国 [chusshinkoku, "country where one comes from"])

"national origin"

Japan's reluctance to recognize the term "national origin" except to mean someone's original nationality as a legal status -- rather than with nuances of racioethnic roots -- continues to guide its responses to the United Nations Committee on the Elimination of Racial Discrimination (CERD) concering the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). See The racialization of Japan for further discussion of Japan's contining effect to prevent racialization of its laws.

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7.2   "the people" and "persons"

The material cited here sheds light on why Article 13 (Article 14 in final version) came to be totally nationalized. Article 24 (Article 16) concerning right to education, and Article 25 (Article 27) regarding right to work, were also nationalized.

The following text is a transcription of relevant parts of the notes prepared by Sato Tatsuo concerning the revisions made in the 2nd colloquial draft. Sato listed the changes which had made and then explained why they had been made. I have blocked the explanations to faciliate easier reading.

Source   Manuscript with hand editing, Sato papers 65, 66, Images 108-001 to 108-003, 108-011 to 108-015, and 108 text

Japanese text

(第十三条)「凡ベテ自然人ハ -- 」(All natural persons are)トアルヲ「凡ベテ国民ハ−−」ト改ム

(註)右ノ点ハ先方ノ了解ヲ得ス当方限リニ於テ修正シタル点ナルガ「ケ」ハ第三章国民ノ権利義務ニ於ケルpeopleナル語トpersonナル語ハ厳格ニ区別セラレ居リ現ニ極東委員会ヨリ之等ノ語ガ日本語ニ於テ如何ニ訳サレ居ルヤニ関シ照会シ来リ之ニ対シ総司令部ニ於テハ旧日本文草案要綱ニ基キ囘答ヲ発シタル次第ナリ右ハ極東委員会ノ何レカノ委員ガ此ノ点ニ関心ヲ有スル証左ニシテ personナル語ヲ日本人ニ限定スル如ク訳スルハ適当ナラズト述ブ依ツテ当方ハ第十三条ニ関シテハ起草ノ際外国人ヲ除クコトニ当方ハ了解シ居ルガ如何ト質セバ「ケ」ハ本条ハ人種ニ基ク差別待遇ハ禁シ居ルモ国籍ニ基ク差別待遇ハ之ヲ禁シ居ラス従ツテ何故右ノ如キ修正ヲ必要トスルヤ了解ニ苦シムモ本条ニ関シテハ右ノ如ク修正スルコトニ別段反対セズ但シ其ノ他ノ箇条ニ関シテハ問題ナリト述ブ新日本文草案ニ於テハpersonヲ「国民」ト訳シタル箇所多カリシヲ以テ第三章全体ニ付一々日英両文ヲ照合ノ上訂正ヲ要求セラレタルヲ以テ当方トシテハ第三章ハ国民ノ権利義務ニ関スル規定ニシテ別ニ外国人ニ関スル規定ニ非スト了解シ居リタリト述ブレバ「ケ」ハ其ノ場ニ居合セタル「ゴルドン」少尉(日本語専門家)ニ確メタル上右ノ点ニ関シテハ本草案起案ニ際シ日本側代表ト相談ノ上本章中人ノ基本的権利(rights of man)ニ関スル規定ハ外国人ニモ適用アル如ク決定セラレタルモノナリト主張シ若シ第三章ノ表題ガ之ニ相応セスト云フニ於テハ表題ヲ変更スルノ他ナシト述ブ

(第二十四条)本条中「何人モ」(every person)トアルヲ「凡ベテ国民ハ」(all people)と修正ス

(第二十五条)「何人モ」(all persons)トアルヲ「凡ベテ国民ハ」(All people)ト修正ス

(註)以上二箇条ハ之ヲ日本国民ノミニ限定スルモ差支ヘナシトノ理由ニ基ク

English translation

The above memo, as was the earlier memo (see 4.4), is also a stream-of-consciousness record, this time of an exchange between Sato and "Ke" -- Sato's code for "Keedesu" -- Colonel Charles L. Kades (1906-1996), Deputy Chief ot the Government Section (GS). The Chief of GS was Brigadier General Courtney Whitney (1897-1969). Kades had been the Chief of the Public Administration Division before his promotion to Deputy Chief of GS.

In the following translation I have tried to stay as close as possible to the surface of Sato's remarks. All clarifications are shown in [brackets].

(Article 13) "Subete shizenjin wa . . ." (All natural persons are)is changed to "Subete kokumin wa . . . " [All of the people, All nationals].

Translation forthcoming.

(Article 24) "nanbito mo" (every person) in this article is revised to "subete kokumin wa" (all people) [sic].

(Article 25) "nanbito mo" (all persons) is revised to "subete kokumin wa" (All people) [sic].

(Note) [The revisions in the] above two articles are based on the unobjectionable reason that they are limited to only Japanese nationals [Nihon kokumin].

For a detailed look at the interplay between "the people" and "persons" in the articles of Chapter III of the 1947 Constitution, see Distribution of "the people" and "persons".

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7.3   Civil rights of foreigners

GHQ's efforts to wire "alien" rights into the constitution were almost commical. The earliest draft of the article that, had it survived, would have specifically guaranteed equal protection of aliens under the law read like something out of a 19th-century extraterritorial treaty. Though GHQ's "aliens" did not survive nationalization, the constitutions's guarantees of basic human rights generally extend to non-nationals as well.

However, Japan's courts have ruled -- correctly -- that guarantees of basic human rights are constrained by an individual's legal status -- whether one is Japanese or not, and if not Japanese then what kind of alien. Not only is there a qualitative difference between Japanese and aliens, an alien's status in Japan is conditioned by the terms of a particular visa or permanent residence permit, or by a treaty that obliges exceptional treatment favorable or otherwise. Moreover, international customary law gives all sovereign states considerable latitude in how differently they treat nationals and non-nationals.

Mixed metaphors

As articles protecting basic human rights were worded in ways that would include aliens when appropriate, the shortened "alien" article disappeared. While the distinction between "kokumin" (the people) and "nanbito" (persons) is in principle clear, some the matters addressed by some articles of Chapter III seem at odds with their topical subjects.

Article 30, though ostensibly about 国民, would seem to extend to aliens in the sense that aliens, too, are subject to taxation as provided by law.

The first part of Article 22, concerning 何人も, does not pertain as clearly to aliens as to Japanese, since the freedom of aliens to choose an occupation in Japan, if not also their freedom to choose and change address, is governed by status of residence limitations that do not apply to Japanese, and do not apply equally to all aliens. Such qualifications were clearly stated in McLean v Minister of Justice, 1978.

The second part of Article 22, again concerning 何人も, appears to apply more to Japanese than to aliens. Even assuming that Japan were able to guarantee the freedom of a person to move to a country unwilling to accept the person, Japan has absolutely no authority over anyone's divestment of another state's nationality. Nor will Japan allow Japanese to renounce their Japanese nationality of to do so would leave them stateless in Japan's legal view.

The most important issue, though, has been the question of alien suffrage: doesn't the constitution allow non-nationals to vote or run for office in national or local elections? All courts have said no, but the Supreme Court has ruled that the constitution does not prevent the state from permitting some degree of suffrage in local polities.

Rights of sojourn and political activities

In 1978, the Grand Bench of the Supreme Court, in its ruling in McLean v Minister of Justice, put limits on the extent to which aliens are free engage in political activities in Japan without jeopardizing their legal status.

See McLean v Minister of Justice, 1978 for Japanese and English summaries of the ruling and commentary.

National suffrage

The 1993, a petit bench of the Supreme Court held, ruling in the first Higgs v. State case, held that the constitution gave the right to vote in national elections only to nationals of Japan.

See Higgs v. State, 1993 and 1995 for an overview of both lawsuits Higgs initiated in Osaka.

Local suffrage

In 1995 a petit bench of the Supreme Court ruled, in Kim et al v Osaka, that while the constitution did not allow aliens to vote in national elections, it did not prohibit the state from allowing local autonomous bodies, like prefectures and municipalities, to extend local suffrage to their alien residents.

See Kim et al v Osaka, 1995 for Japanese and English summaries of the ruling and commentary.

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