Ellerman report of Conference
between General Whitney and Dr. Matsumoto of 22 February 1946
Present: Whitney, Kades Hussey, Rowell, Ellerman, Matsumoto, Yoshida & Shirasu.
Meeting of General Whitney, Colonel Kades, Commander Hussy,
Lt. Col. Rowell, Miss R. Ellerman with Dr. Matsumoto, Mr. Yoshida and Mr. Shirasu,
22 February 1946.
Mechanics of Ratification
Mr. Matsumoto: We have accepted the ideas set forth in the draft of the new constitution,
but we are not sure that it presents workable form.
General Whitney: We will be happy to work out that form with you. We have set
forth principles, in this new constitution, and defined procedures that tie these
basic principles together and will make them work. As far as matters of procedure
are concerned we will discuss them with you. We have great respect for your experience
and I know that you can draft an instrument more in tune with Japanese forms
than I or my staff can. As General MacArthur told your Prime Minister yesterday,
it is the basic principles and structure that we are insistent upon. I want a
statement from you, Dr. Matsumoto, on how we are to approach this problem of
workable form.
Dr. Matsumoro: To begin with we have no objections to the basic principles of
your draft. But there are certain questions. Is it better to retain our present
constitution and then revise it in terms of the basic principles you have set
forth? Or, is it better to begin with a completely new document?
General Whitney: We have carefully considered that problem. We tried to use your
present Constitution as a basis for revision. It was impossible. You must remember
that this new Constitution is a document that will be presented to the world,
and will demand the attention of the world. We consider that the meaning can
be better expressed if an entirely new Constitution is written. A constitution
that will revoke all laws and ordinances in conflict with the principles of the
new Constitution.
Matsumoto: According to our present Constitution provision is made for acceptance
(Dr. Matsumoto failed to make it clear whether he was referring to an amendment
procedure or ratification of a new Constitution.)
Commander Hussey: Are you referring to a procedure for acceptance of this document?
As an amendment to the present Constitution, for which your
Constitution
provides, or as a completely new Constitution? If the Emperor presents this new
Constitution to the Diet, and then the Diet adopts it, there is no difficulty.
Col. Kades: What is the inconsistency between your procedure and the one set
up in the new Constitution for acceptance?
Matsumoto: Under the present Constitution the initiative belongs to the Emperor.
Your Constitution is presented in a form that would make this impossible, and
the Emperor would have no initiative. The new Constitution starts out "We
the Japanese People" and this makes the inconsistency. Also, the new Constitution
states that ratification will be by 2/3 of the members of the Diet present. In
the present Constitution it is required that 2/3 of all the members of the Diet
must be present and then acceptance is by 2/3 vote of those present.
Further, we now have two Houses, and the new Constitution makes no provision
for acceptance by the Upper House.
Commander Hussey: As to your first point, no real inconsistency is involved.
In presenting the new Constitution the Emperor would act under the old Constitution.
The Emperor would submit the Constitution to the Diet, the representatives of
the people, and the Diet would adopt it. We have no objection in adding that
the House of Peers will concur in the ratification.
Matsumoto: Then Article 92 in the new Constitution is superfluous, since we have
already provided the procedure for acceptance.
Col. Kades: That is incorrect. Under your present Constitution, the new Constitution
would not go through if sufficient members of the House of Peers stayed away.
If 1/3 plus one of the members stayed quietly on their farms the new Constitution
never would be ratified.
Commander Hussey: Amend Article 73 of your present Constitution to include our
Article 92 and then the Constitution could go through.
General Whitney: This could be arranged. There is no doubt
that the Constitution will be adopted if it is presented with the approval of
the Supreme Commander, by the Emperor to the Diet. I don't anticipate any trouble
in getting the concurrence of the Diet under your present provision. If there
is, we can go through the back door. We will strike out our Article 92, if you
like. Our only concern is getting this document before the people.
Col. Kades: Dr. Matsumoto, you say that acceptance demands a 2/3 vote of the
whole membership. Does that mean 'present' members? What about the members
of the Diet and the House of Peers who have been purged? Are they included?
Matsumoto: I am not sure. But I think it will mean 2/3 of the members of the
House of Peers who remain and 2/3 of the total membership of the House of Representatives.
General Whitney: This is something that can be worked out later. The main issue
is to find a workable compromise on ratification that can be approved by the
Supreme Commander, the Emperor and the Diet.
The Preamble
Dr. Matsumoto: Is the Preamble a part of the Constitution?
General Whitney: Yes, definitely. Its purpose is to set forth the fundamental
principles that guided the writing of the Constitution. It is important, too,
because many people will read the Preamble who will not read the Articles. We
want to present the Constitution to the World in as direct and favorable a fashion
as possible.
Matsumoto: Then the Preamble will have to be so presented as to come from the
Emperor.
Col. Kades: Won't that be taken care of by the Imperial Rescript that presents
the Constitution to the Diet?
Matsumoto: Under the present Constitution the initial step for revision is taken
bay the Emperor himself. If the Constitution is presented with the Preamble,
then the Preamble must be re-worded into the form that would be used
by
the Emperor in presenting a new Constitution to the people.
General Whitney: That puts the problem into a different complexion. Our concept
of a Constitution is that it comes up from the people, not down to the people.
The Emperor can precede the presentation of the Constitution by any step he likes.
He can make a statement to the people that the new Constitution embodies principles
for their guidance.
Shirasu: You mean that you have no objection to a preceding statement by the
Emperor?
Col. Kades: No. Such a statement would be merely the cover sheet for the Preamble
and the Constitution.
General Whitney: No, as long as the Emperor's statement does no violence to the
principles embodied in the Constitution.
Commander Hussey: The procedure is quite clear. The Emperor speaks in presenting
the Constitution to the Diet; when the Diet has and accepted the Constitution,
it speaks as the people. The Emperor can state his position in the Imperial Rescript
initiating the project.
General Whitney: In effect, the Emperor suggests to the people that they shall
adopt the principles embodied in the Constitution. Then General MacArthur will
proclaim to the world -- this is the Constitution now accepted by the Japanese
people.
Matsumoto: I must study out all this procedure. But first, how many of the articles
in the new Constitution do you consider basic and unalterable? I want to advice
the Cabinet what and how many of the Articles are absolutely necessary.
General Whitney: We feel that the whole Constitution as written is basic. We
accept the fact that in presentation our language will be subject to modification
in order to make it better understood by the Japanese people, and the form will
be subject to modification in those instances where the procedure set forth,
is in your opinion, unworkable in terms of the Japanese situation. But in general,
we regard this document as a unit.
Col. Rowell: The new Constitution was written as an interwoven
unit, one section fitting into another, so there is no one section or chapter
that can be cut out.
Unicameral Legislature
Matsumoto: Is the one legislature a basic necessity?
General Whitney: General MacArthur explained to the Prime Minister yesterday
that he could see no situation in Japan that necessitated a two house system.
However, if the Cabinet feels strongly about the desirability of a bicameral
legislature, and both houses are elected by popular vote, General MacArthur will
interpose no objection. General MacArthur put in the unicameral system because
he thought it the simplest and most workable arrangement.
Matsumoto: You have no objection if both houses are elected by popular vote.
Could a system such as the one used in the election of the American President
qualify as direct voting? The Electoral College?
Commander Hussey: Are you asking whether we would accept election of the Upper
House by vote of the prefectural assemblies as direct election?
Matsumoto: Yes.
General Whitney: Election of the Upper House by the prefectural assemblies would
be acceptable as long as these assemblies were themselves elected by popular
vote.
Matsumoto: What if the Upper House contained a minority of members elected by
the Cabinet or some such body?
General Whitney: General MacArthur will not accept that. He insists upon popular
vote in every sense of that term. He will accept election by assemblies because
they are themselves popularly elected. But, the Supreme Commander will not tolerate
any procedure remotely resembling the Chamber of Corporations system of the Mussolini
regime. That means a Corporate State and is not acceptable.
Renunciation of War
Matsumoto: Might the Renunciation of War be inserted someplace in the Preamble,
rather than be given a chapter of its own.
General Whitney: The Renunciation of War was placed deliberately
in a separate chapter in order to give all the emphasis possible to this important
Article. As I stated to Mr. Yoshida, and the Supreme Commander stated to Mr.
Shidehara yesterday, this Article affords Japan the opportunity to assume the
moral leadership of the world in the movement towards lasting peace. The Renunciation
of War should not be buried amongst the enunciation of other principles; rather,
it must be stated boldly in order to serve its full purpose. General MacArthur
feels that this principle will do more to attract the favorable attention of
the world than anything else. And this is a time in which Japan needs the favorable
attention of the world.
Matsumoto: It would be less unsuitable if it were written in the Preamble. It
is unusual to have this principle stated in the body of the Constitution rather
than in the Preamble.
Commander Hussey: You mean, Dr. Matsumoto, that you would prefer to have it stated
merely as a principle.
Matsumoto: Yes, that is so.
Commander Hussey: While we appreciate that position, we feel that the renunciation
should be incorporated in the basic law itself, that this would give it real
force.
General Whitney: The enunciation of this principle should be unusual and dramatic.
We made it Chapter II rather than Chapter I of the Constitution in deference
to the Emperor and his place in the hearts of the Japanese people. For my own
part, and in terms of its decisive importance, I should prefer the Renunciation
of War to the Chapter I of the new Constitution.
New Imperial House Law
Matsumoto: Is it essential that the Imperial House Law be enacted by the Diet?
Under the present Japanese Constitution the Imperial House Law is made up by
members of the Imperial Household. The Imperial Household has autonomy.
General Whitney: Unless the Imperial House Law is made subject to approval by
the representatives of the people, we pay only lip service to the supremacy of
the people.
Col. Kades: We have placed the Emperor under the law, as in
England.
Col Rowell: At present the Imperial House Law is above the Constitution.
General Whitney: Unless the Imperial House Law is enacted by the Diet the purpose
of the Constitution is vitiated. This is an essential article.
Matsumoto: Is this, control of the Imperial House Law by the Diet, a basic principle?
General Whitney: Yes.
Similarity of Articles in the Present
and New Bill of Rights
Matsumoto: Some of the Article you have written in the new Constitution are merely
repetitions of those already in the present Constitution.
General Whitney: Good. Those laws already embodied in your present Constitution
will remain undisturbed in their functioning. Only those inconsistent with the
fundamental rights enunciated in the new Constitution will be abrogated.
The Judiciary: Appointment of Supreme
Court
Matsumoto: In article 71 it is stated that the justices of the Supreme Court
are to be appointed by the Diet. That will make the Supreme Court an unstable
institution.
Government Section in unison: That is a misreading of the text. Supreme Court
justices are to be appointed by the Cabinet; it is only the number of associate
justices that will be determined by the Diet.
Problems of Form and Translation
Matsumoto: If we base the new Constitution on your draft, we must have your draft
rewritten in Japanese. It will take a great deal of time to put it into classical
Japanese as used by the Emperor. It will be difficult, people are very particular
about form in Japanese and will argue for weeks about one phrase. The beginning
of the Preamble will be especially difficult to translate. The Diet argued for
weeks about the phrase (the will of the people' used by the Foreign
Minister
some years ago in concluding an anti-war treaty.
General Whitney: As General MacArthur explained to the Prime Minister yesterday,
we do not press you for time in order to orient your opinion in one way or another,
but General MacArthur believes that in putting this Constitution through speed
is essential. General MacArthur feels that since he is in complete charge of
the situation he can put a document such as this through; he wishes this for
the express purposes that he explained to your Prime Minister yesterday. We are
now in agreement as to principles, and I and my Staff will assist you in every
way possible. I cannot impress upon you too much how important the time element
is.
Matsumoto: It is not a difficulty of spirit between us but a question of words
and phraseology.
General Whitney: We are fortunate in having so able a man as you, Dr. Matsumoto,
to carry this work through, but speed is essential. I know that you must carefully
work over this document, section by section, and I can understand that this may
take a day or two, but it must not be spread over a number of days.
Yoshida: We will not delay unnecessarily.
General Whitney: You propose, then, merely to put this new Constitution in proper
language and phraseology acceptable to the Japanese people, but without working
any essential change in the basic principles set forth? How long will this take?
Matsumoto: I cannot say. I will have to have the approval of the Cabinet before
I can say definitely. I must explain this afternoon's conversation to the Cabinet,
but I will begin the work of putting this document into the proper language at
the same time.
General Whitney: This afternoon's conversation added nothing new to what the
Prime Minister was told yesterday by General MacArthur. I understood that the
Prime Minister gave the substance of that conversation to the Cabinet this morning.
Matsumoto: The Prime Minister explained merely the general principles to the
Cabinet, but the basic form was not discussed. After this conversation with you
I
will give full details to the Cabinet.
General Whitney: If you wish some of my officers to sit beside you as you put
this Constitution into the proper form in order to determine whether the basic
principles are violated by the changes in form, I will be happy to make officers
available to you.
Colonel Kades: Hasn't our draft been translated already?
Shirasu: Yes, but it has not been put into the form in which our Constitution
could be presented to the people.
Yoshida: We will have a Cabinet meeting on Tuesday. After that meeting we will
be able to tell you how many days the work of translation and form will take.
We trust that you will preserve perfect secrecy on these discussions.
General Whitney: Complete security will be maintained, of course. I will report
to General MacArthur that you, Dr. Matsumoto, will have this work of translation
completed well before the end of next week. You have the satisfaction of knowing
that your fee for this work will be the highest possible -- the welfare of Japanese
people.
Colonel Kades: Would you like us to go over the English with you again, so that
you are sure that you understand the principles embodied in the articles?
Shirasu: That will no be necessary. We understand.
General Whitney: Good. Everything is now clear. The only problem remaining is
to put this document into good form.
