Second Government Draft (March 6, 1946)

Draft Constitution of Japan (Second Government Draft)
March 6, 1946

Source: Charles L. Kades papers, Gordon W. Prange Collection, University of Maryland.¹

We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim the sovereignty of the people's will and do ordain and establish this Constitution, founded upon the universal principle that government is a sacred trust the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people; and we reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith.

Desiring peace for all time and fully conscious of the high ideals controlling human relationship now stirring mankind, we have determined to rely for our security and survival upon the justice and good faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society designed and dedicated to the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize and acknowledge that all peoples have the right to live in peace, free from fear and want.

We hold that no people is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all people who would sustain their own sovereignty and justify their sovereign relationship with other peoples.

To these high principles and purposes we, the Japanese people, pledge our national honor, determined will and full resources.

Chapter I. The Emperor

Article 1.
The Emperor shall be the symbol of the state and of the unity of the people, deriving his position from the sovereign will of the people.

Article 2.
The Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial House Law passed by the Diet.

Article 3.
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.
The Emperor shall perform only such state functions as are provided for in this constitution. Never shall he have powers related to government.
The Emperor may delegate his functions as may be provided by law.

Article 5.
When, in accordance with the Imperial House Law, a regency is established, the Regent shall exercise his functions in the Emperor’s name. In this case, paragraph one of the preceding article will be applicable.

Article 6.
The Emperor shall appoint the Prime Minister as designated by the Diet.

Article 7.
The Emperor, with the advice and approval of the Cabinet, shall perform the following functions of state on behalf of the people:
Promulgation of amendments of the constitution, laws, cabinet orders, and treaties.
Convocation of the Diet.
Dissolution of the House of Representatives.
Proclamation of general elections.
Attestation of the appointment and dismissal of Ministers of State, Ambassadors, and other officials as provided for by law.
Attestation of general and special amnesty, commutation of punishment, reprieve, and restoration of rights.
Awarding of honors.
Receiving foreign ambassadors and ministers.
Performance of ceremonial functions.

Article 8.
No property can be given to, or received by, the Imperial House, and no receipts and disbursements can be made thereby, without the authorization of the Diet.

Chapter II. Renunciation of War

Article 9.
War, as a sovereign right of the nation, and the threat or use of force, is forever renounced as a means of settling disputes with other nations.
(2) The maintenance of land, sea, and air forces as well as other war potential, will never be authorized. The right of belligerency of the state will not be recognized.

Chapter III. Right and Duties of the People

Article 10.
The people shall not be prevented from enjoying any of the fundamental rights. These fundamental human rights guaranteed to the people by this constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.

Article 11.
The enjoyment of the freedoms and rights guaranteed to the people by this constitution shall be maintained by the eternal vigilance of the people, and the people shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.

Article 12.
All of the people shall be respected as individuals, and their right to life, liberty and the pursuit of happiness shall, within the limits of the public welfare, be the supreme consideration in legislation and in governmental affairs.

Article 13.
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. No right of peerage shall from this time forth embody within itself any national or civic power of government, nor shall peerage extend beyond the lives of those now in being. No privilege shall accompany any award of honor, decoration or any distinction; nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it.

Article 14.
The people have the inalienable right to choose their public officials and to dismiss them.
All public officials are servants of the whole community and not of any special group.
In all elections, secrecy of the ballot shall be preserved inviolate, nor shall any voter be answerable, publicly or privately, for the choice he has made.

Article 15.
Every person has the right of peaceful petition for the redress of damage and other matters, for the removal of public officials and for the enactment, repeal or amendment of laws, ordinances or regulations; nor shall any person be in any way discriminated against for sponsoring such a petition.

Article 16.
No person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited.

Article 17.
Freedom of thought and conscience shall be held inviolable.

Article 18.
Freedom of religion is guaranteed to all. No religious organization shall receive any privilege from the State, nor exercise any political authority.
No person shall be compelled to take part in any religious act, celebration, rite, or practice.
The State and its organs shall refrain from religious education or any other religious activity.

Article 19.
Freedom of assembly, association, speech, and press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 20.
Every person shall have freedom to choose and change his residence and to those his occupation to the extent that it does not interfere with the public welfare.
Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate.

Article 21.
Academic freedom is guaranteed.

Article 22.
Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation, with the equal rights of husband and wife as a basis. Laws shall be enacted considering choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family from the standpoint of individual dignity and the essential equality of the sexes.

Article 23.
In all spheres of life, laws shall be designed for the promotion and extension of social welfare and security, and of public health, freedom, justice and democracy.

Article 24.
Every person shall have the right to receive an equal education corresponding to his ability, as provided by law.
Every person shall be obligated to insure that all of the children under his protection receive elementary education. Such education shall be free.

Article 25.
All persons have the right to work. Standards for working conditions, wages and hours shall be fixed by law. The exploitation of children shall be prohibited.

Article 26.
The right of workers to organize and to bargain and act collectively is guaranteed.

Article 27.
The right to own property is inviolable, but property rights shall be defined by law, in conformity with the public welfare. Private property may be taken for public use upon just compensation therefor.

Article 28.
No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended while committing a crime.

Article 29.
No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; he shall not be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel.

Article 30.
No person shall be deprived of life or liberty, nor shall any criminal penalty be imposed, except according to procedure established by the Diet, nor shall any person be denied the right of access to the court.

Article 31.
The right of the people to be secure in their persons, homes, paper and effects against entries, searches and seizures shall not be impaired except upon warrant issued only for probable cause and particularly describing the place to be searched and the person or things to be seized.
Each search or seizure shall be made upon separate warrant issued for the purpose by a competent judicial officer.

Article 32.
The infliction of torture by any public officer and cruel punishments are absolutely forbidden.

Article 33.
In all criminal cases the accused shall enjoy the right to a speedy and public trial and an impartial tribunal. 
He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense.
At all times the accused shall have the assistance of competent counsel who shall, if the accused be unable to secure the same by his own efforts, be assigned to his use by the government. No person shall be placed in double jeopardy for the same crime.

Article 34.
No person shall be compelled to testify against himself.
No concession shall be admitted in evidence if made under compulsion, torture or threat, or after prolonged arrest or detention.
No person shall be convicted or punished in cases where the only proof against him is his own confession.

Article 35.
No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted.

Chapter IV. The Diet

Article 36.
The Diet shall be the highest organ of state power, and shall be the sole law-making authority of the State.

Article 37.
The Diet shall consist of two houses, namely the House of Representatives and the House of Councillors.

Article 38.
Both Houses shall consist of elected members, representative of all the people.
The number of the members of each House shall be fixed by law.

Article 39.
The qualifications of electors and members for both Houses shall be fixed by law. However, there shall be no discrimination because of sex, race, religion, or social status.

Article 40.
The term of office of members of the House of Representatives shall be 4 years. However, the term may be terminated before the full term is up, by dissolution of the House of Representatives.

Article 41.
Matters pertaining to the method of election of members of both Houses, electoral districts, and method of voting shall be fixed by law.

Article 42.
The term of office of the members of the House of Councillors shall be six years, except for half the members serving in the first term. Election for half the members shall take place every three years.

Article 43.
No person shall be permitted to be a member of both Houses simultaneously.

Article 44.
Members of both Houses shall receive appropriate annual payment from the national treasury in accordance with the law.

Article 45.
Except in cases provided by law, members of both Houses shall be exempt from arrest while the Diet is in session. Any member arrested before the opening of the session shall be freed during the term of the session upon demand of his House.

Article 46.
Members of both Houses shall not be held liable outside the House for speeches, debates, or votes cast inside the House.

Article 47.
The Diet shall be convoked at least once per year.

Article 48.
The Cabinet may call extraordinary sessions of the Diet. When a quarter or more of the total members of either House makes the demand, the Diet must be called into session.

Article 49.
When the House of Representatives is ordered dissolved, there must be a general election of members of the House of Representatives within forty (40) days from the date of dissolution, and the Diet must be convoked within thirty (30) days from the date of the election. When the House of Representatives is ordered dissolved, the House of Councillors must, at the same time, be closed.

Article 50.
Each House shall judge disputes related to qualifications and elections of its members.
In order to deny a seat to anyone certified to have been elected, it is necessary to pass a resolution by a majority of two-thirds or more of the members present.

Article 51.
Business cannot be transacted in either House unless at least one-third of the total membership is present.
All matters shall be decided, in each House, by a majority of those present, except as elsewhere provided in the Constitution. In case of a tie, the presiding officer shall decide the issue.

Article 52.
Deliberation in each House shall be public. No secret meeting shall be held.
Each House shall keep a record of proceedings. This record shall be published and distributed to the public.
Upon demand of one-fifth or more of the members present, votes of the members on any matter shall be recorded in the minutes.

Article 53.
Each House shall establish its rules and regulations pertaining to meetings and proceedings, 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 54.
A bill becomes a law on passage by both Houses, except as otherwise provided by this Constitution.
A bill which is passed by the House of Representatives, and rejected by the House of Councillors, becomes a law when passed a second time by the House of Representatives by a majority of two-thirds or more of the members present.
Failure by the House of Councillors to take final sanction within sixty (60) days after receipt of a bill passed by the House of Representatives, time in recess excepted, may be determined by the House of Representatives to constitute a rejection.

Article 55.
The budget must first be submitted to the House of Representatives.
Upon consideration of the budget, when the House of Councillors makes a decision different from that of the House of Representatives, and when a joint committee of both Houses provided for by law, cannot come to an agreement, the decision of the house of Representatives will be considered the decision of the Diet.

Article 56.
The second paragraph of the preceding article applies also to Diet approval required for the conclusion of treaties, and international conventions and agreements.

Article 57.
Each House may conduct investigations in relation to national affairs, and may compel the presence and testimony of witnesses, and the production of records. In such cases, each House can punish, in accordance with law, those who do not comply with the demands.

Article 58.
The Prime Minister, and the Ministers of State, may at any time, appear in either House for the purpose of debating on bills regardless of whether they are members of the House or not. They must appear when their presence is required in order to give answers or explanations.

Article 59.
The Diet shall set up an impeachment court from the members of both Houses for the purpose of trying those judges against whom removal proceedings have been instituted.
Matters relating to impeachment shall be provided by law.

Article 60.
The House of Representatives shall sit as the National Diet immediately upon the effective date of this Constitution and until such time as the House of Councillors shall regularly be consulted.

Chapter V. The Cabinet

Article 61.
Executive power shall be vested in the Cabinet.

Article 62.
The Cabinet shall consist of the Prime Minister, who shall be its head, and other Ministers of State as provided for by law.
The Cabinet, in the exercise of executive power, shall be collectively responsible for the Diet.

Article 63.
The Prime Minister shall be designated by a resolution of the Diet. This designation shall precede all other business.
If the House of Representatives and the House of Councillors disagree and if a joint committee of both houses provided for by law, cannot reach an agreement, the decision of the House of Representatives shall be the decision of the Diet.

Article 64.
The Prime Minister shall, with the approval of the Diet, designate the Ministers of State. The second paragraph of the preceding article shall apply to this approval.
The Prime Minister may decide on the removal of Ministers of State as he chooses.

Article 65.
If the House of Representatives passes a no-confidence resolution, or fails to pass a confidence resolution, the Cabinet shall resign en masse, unless it dissolves the House of Representatives within ten days.
 

Article 66.
When there is a vacancy in the post of Prime Minister, or upon the convocation of the Diet after a general election, the Cabinet shall resign en masse.

Article 67.
In the cases mentioned in the two preceding articles, the Cabinet shall continue its functions until the time when a new Prime Minister is appointed.

Article 68.
The Prime Minister, representing the Cabinet, submits bills, reports on general national affairs and foreign relations to the Diet, and exercises supervision and control over various administrative branches.

Article 69.
The Cabinet, in addition to other general administrative functions shall:
Administer the law faithfully; conduct affairs of State.
Manage foreign affairs.
Conclude treaties, international conventions and agreements. However, it shall obtain prior or, depending on circumstances, subsequent approval of the Diet.
In accordance with the standards established by the Diet, administer the civil service.
Prepare the budget, and present it to the Diet.
Enact and promulgate orders and regulations in order to carry out the provisions of this Constitution and of the law. However, it cannot include penal provisions in such orders and regulations unless authorized by such law.
Decide on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights.

Article 70.
All laws and orders shall be signed by the competent Minister of State, and countersigned by the Prime Minister.

Article 71.
The Ministers of State, during their tenure of office, shall not be subject to legal action without the consent of the Prime Minister, but the right to take that action is not impaired hereby.

Chapter VI. The Judiciary

Article 72.
The whole judicial power is vested in a Supreme Court and in such inferior courts as the Diet shall establish.
No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.
All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws enacted pursuant thereto.

Article 73.
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, the administration of judicial affairs, and such other matters as may properly affect the free exercise of the judicial power.
Public procurators shall be subject to the rule-making power of the Supreme Court.
The Supreme Court may delegate the power to make rules for inferior courts to such courts.

Article 74.
Removals of judges shall be accomplished by public impeachment only unless judicially declared mentally or physically incompetent. No disciplinary action shall be administered by an executive organ or agency.

Article 75.
The Supreme Court shall consist of such number of judges as may be determined by law; all such judges shall be appointed by the Cabinet and shall be retired upon the attainment of the age of 70 years.
The appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of the House of Representatives following their appointment, and shall be reviewed again at the first general election of the House of Representatives after a lapse of ten years, and in the same manner thereafter.
In cases mentioned in the foregoing paragraph, when the majority of the voters show that they favor the dismissal of a judge concerned, he shall be dismissed.
Matters pertaining to the review mentioned in the foregoing paragraphs shall be prescribed by law.
All such judges shall receive, at regular, stated intervals, adequate compensation which shall not be decreased during their terms of office.

Article 76.
The judges of the inferior courts shall be appointed by the Cabinet from a list of persons nominated by the Supreme Court. All such judges shall hold office for a term of ten years with privilege of reappointment and shall receive, at regular, stated intervals, adequate compensation which shall not be decreased during their terms of office. No judge shall hold office after attaining the age of 70 years.

Article 77.
The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.

Article 78.
Trials shall be conducted and judgment declared publicly. Where, however, 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, and cases wherein the rights of people as reserved in Chapter III of this Constitution are in question, shall be conducted publicly without exception.

Chapter VII. Finance

Article 79.
The power to administer national finances shall be exercised as the Diet shall determine.

Article 80.
No new taxes shall be imposed or existing ones modified except by action of the Diet or under such conditions as the Diet may prescribe.
All taxes in effect at the time this Constitution is promulgated shall continue to be collected under existing regulations until changed or modified by the Diet.

Article 81.
No money shall be expended, nor shall the State obligate itself, except as authorized by the Diet.

Article 82.
The Cabinet shall prepare and submit to the Diet for its consideration and decision on annual budget for each fiscal year.

Article 83.
In order to provide for unforeseen deficiencies in the budget a reserve fund may be authorized to be expended upon the responsibility of the Cabinet.
The Cabinet shall be held accountable to the Diet for all payments from the reserve fund.

Article 84.
All property of the Imperial Household, other than the hereditary estates, shall belong to the State. The income from all Imperial properties shall be paid into the national treasury and allowances and expenses of the Imperial Household, as defined by law, shall be appropriated by the Diet in the annual budget.

Article 85.
No public money or property shall be appropriated for the use, benefit or support of any system of religion, or religious institution or association, or for any charitable, educational or benevolent purposes not under the control of the State.

Article 86.
A final audit of all expenditures and revenues of the State shall be made annually by a board of audit and submitted by the Cabinet to the Diet during the fiscal year immediately following the period covered.
The organization and competency of the board of audit shall be determined by the Diet.

Article 87.
At regular intervals and at least annually the Cabinet shall report to the Diet and the people on the state of national finances.

Chapter VIII. Local Self Government

Article 88.
Regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy.

Article 89.
The local public entities shall establish assemblies as their deliberative organs, in accordance with law.
The chief executive officers of all local public entities, the members of their legislative assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities.

Article 90. 
Local public entities shall have the right to manage their property, affairs and government and to frame their own charters within such laws as the Diet may enact.

Article 91.
A special law, applicable only to one local public entity, cannot be enacted by the Diet without the consent of the majority of the voters of the local public entity concerned, obtained in accordance with law.

Chapter IX. Amendments

Article 92.
Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority or all votes cast thereon at such election as the Diet shall specify.
Amendments when so ratified shall immediately be proclaimed by the Emperor in the name of the People, as an integral part of this Constitution.

Chapter X. Supreme Law

Article 93.
This Constitution and the laws and treaties made in pursuance hereof shall be the supreme law of the state and no public law or ordinance and no imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force of validity.

Article 94.
The fundamental human rights by this Constitution guaranteed to the people of Japan result from the age-old struggle of man to be free. They have survived the exacting test for durability in the crucible of time and experience, and are conferred upon this and future generations in sacred trust, to be held for all time inviolate.
The Emperor or the Regent, the Ministers of State, the members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution.

Chapter XI. Supplementary Provisions

Article 95.
The Ministers of State, members of the Diet, judges and all other public officials in office at the time of the enactment of this Constitution, shall remain at their posts in accordance with existing provisions of law regardless of the provisions of this Constitution, until their successors are elected or appointed.