Provisions for the Review of a New Japanese Constitution (FEC-031/41)

The attached is certified to be the official text of a document unanimously adopted at the thirtieth meeting of the Far Eastern Commission, held at 2516 Massachusetts Avenue, Northwest, Washington, D. C., on 17 October 1946.


Washington, D. C.
17 October 1946

CONFIDENTIAL


1. The new constitution, which will in due season after promulgation become the legal successor of the present constitution with such changes as have been made or may be made as a result of consideration and policy decision of the Far Eastern Commission, shall be subject to further review by the Diet and the Far Eastern Commission in terms of the following paragraph.

2. In order that the Japanese people may have an opportunity, after the new constitution goes into effect, to reconsider it in the light of the experience of its working, and in order that the Far Eastern Commission may satisfy itself that the constitution fulfills the terms of the Potsdam Declaration and other controlling documents, the Commission decides as a matter of policy that, not sooner than one year and not later than two years after it goes into effect, the situation with respect to the new constitution should be reviewed by the Diet. Without prejudice to the continuing jurisdiction of the Far Eastern Commission at any time, the Commission shall also review the constitution within this same period. The Far Eastern Commission, in determining whether the Japanese constitution is an expression of the free will of the Japanese people, may require a referendum or some other appropriate procedure for ascertaining Japanese opinion with respect to the constitution.



CONFIDENTIAL

The Honorable Dean Acheson
Acting Secretary of State
Washington, D. C.

My dear Mr. Secretary:

The Terms of Reference of the Far Eastern Commission provide that one of the functions of the Commission should be to "formulate the policies, principles and standards in conformity with which the fulfillment by Japan of its obligations under the Terms of Surrender may be accomplished."

It is further provided that when such decisions are made by the Far Eastern Commission, "The United States Government shall prepare directives in accordance with the policy decisions of the Commission and shall transmit them to the Supreme Commander through the appropriate United States Government agency."

At the thirtieth meeting of the Far Eastern Commission held at 2516 Massachusetts Avenue, Northwest, Washington, D. C., on 17 October 1946, the enclosed policy decision relative to Provisions for the Review of a New Japanese Constitution was unanimously approved.

As Secretary General of the Far Eastern Commission, I have been instructed to forward this decision to you on behalf of the Commission, in order that the appropriate directives may be prepared and transmitted to the Supreme Commander in accordance with the Terms of Reference.

Before the enclosed policy decision was formally approved by the Commission, the United States member made a formal statement, recalling the position of his government to the effect that the United States was prepared to agree to the enclosed policy "provided that the Commission at some subsequent meeting and after obtaining the view of the Supreme Commander will consider the time and manner of issuance of the policy decision embodied in the paper." The United States member's statement explained that the enclosed policy would be forwarded to the United States Government to be transmitted as a directive to the Supreme Commander in the usual fashion. At the same time the Chairman would request the Supreme Commander to express to the Commission his views as to the time and manner of issuance of the enclosed policy decision. After the views of the Supreme Commander have been received, the Commission would then be in a position to consider the time and manner of the issuance of this policy decision.

The Commission agreed to the proviso of the United States member and authorized him to consult with the Supreme Commander in order to obtain the Supreme Commander's views on this subject. I am enclosing, for your information and guidance, a copy of the draft minutes of the thirtieth meeting of the Commission covering this action.

The Chairman has accordingly instructed me to request, in his behalf, that the United States Government, in transmitting the enclosed policy decision to the Supreme Commander, at the same time inform the Supreme Commander of the Commission's discussions as set forth in the enclosed excerpt from the draft minutes and request his views with respect to the appropriate time and manner of issuance of the policy decision enclosed herewith.

It is requested that the enclosed policy decision, as well as the formal consultation accompanying it, both be classified as confidential.


Enclosures
FEC:SSStratton:mr

EXCERPT FROM THE MINUTES OF THE THIRTIETH MEETING OF THE FEC, 17 OCT. 1946
CONFIDENTIAL
ITEM 4 - PROVISIONS FOR THE REVIEW OF A NEW JAPANESE CONSTITUTION (FEC-031/40)

GENERAL McCOY said that informal consultation participated in by the Australian, Soviet, and United States representatives had resulted in the agreement by those three on the present version of the review paper.

MR. MAKIN said that the only remaining difference of opinion was as to the time of announcement to the Japanese of the adoption of the review principle. He recalled that ever since the original proposal for review was made by Dr. Evatt the general opinion on the Commission had been that announcement should follow immediately upon adoption of the policy by the Commission. The United States Government, however, had since doubted the wisdom of this course and had advocated postponement of announcement. The Australian view, he continued, was that announcement of the policy should take place immediately following its adoption. To delay announcement, he pointed out, might lay the Commission open to the charge from the Japanese that it had broken faith by not declaring to them the existence of the review provision, particularly since the Japanese were planning elaborate ceremonies to celebrate the new constitution.

Despite this conviction on the part of his government, MR. MAKIN said, he was prepared, in order to secure unanimous adoption of the paper, to consent to delay in the time of the announcement to the Japanese of adoption of the policy. He agreed that the Supreme Commander should be consulted on the question of publication. He urged, however, that such announcement take place as soon as possible, and that it not be delayed later than the date of promulgation of the constitution.

SIR CARL BERENDSEN expressed general agreement with the views of Mr. Makin. He also expressed general agreement with the present document and was, indeed, pleased to see that the Commission had reached an agreement on the affirmation of the principle of review. He asked what difficulties the United States Government now saw in connection with the immediate announcement of the adoption of this paper. He conceded that it would have been unwise to announce such a policy while the constitution was under consideration by the Japanese Diet and he granted, furthermore, that it might be unwise to announce the decision before promulgation of the constitution. However, he said, he could not understand why the United States Government deemed it unwise to announce the review principle at the time of promulgation, and he asked for an explanation of the United States position on this point. GENERAL McCOY replied that numerous reasons had existed for the United States position. One of these reasons had been consideration for the difficult position of the Supreme Commander who had felt that nothing should be done which, in the eyes of the Japanese, would condemn a constitution at the moment of its adoption by them. Other reasons for the United States position had been of a legal nature, and these points had now been met by the present version of paragraph 1.


"At the meeting of the Commission on September 21st, I stated that my Government is prepared to accept the Review paper provided that the Commission at some subsequent meeting and after obtaining the view of the Supreme Commander will consider the time and manner of issuance of the policy decision embodied in the paper. That is: if the pending paper is approved by the Commission, as we trust it will be, the next step, after transmitting this paper as a policy decision to the United States Government for communication as a directive to the Supreme Commander, will be to request the views of the Supreme Commander as to the time and manner of issuance of this policy decision. After the views of the Supreme Commander have been received, the Commission will then be in a position to consider the time and manner of the issuance of this policy decision.

"After this Review paper is passed, I should be pleased to be authorized to consult with the Supreme Commander in order to obtain his views on this subject."

DR. PATTERSON asked whether the reservation respecting "issuance" meant that the forwarding of a directive to the Supreme Commander would be delayed. GENERAL McCOY replied that the directive to the Supreme Commander would go forward immediately, but that the time of issuance in Japan and publicity was a question for continued consideration when the views of the Supreme Commander had been received.

GENERAL McCOY moved and MR. MAKIN seconded the motion that the Commission adopt FEC-031/40, with the understanding that the Chairman be authorized to consult with the Supreme Commander as to the Supreme Commander's views regarding the time and manner of issuance of the policy decision and that after the Supreme Commander's views had been received the Commission would reconsider the time and manner of such issuance. The motion was carried unanimously.

GENERAL McCOY said that the foregoing views of Mr. Makin and Sir Carl Berendsen would be communicated to the Supreme Commander at the time of requesting his views as to the time and manner of issuance of the policy decision.


1. The new constitution, which will in due season after promulgation become the legal successor of the present constitution with such changes as have been made or may be made as a result of consideration and policy decision of the Far Eastern Commission, shall be subject to further review by the Diet and the Far Eastern Commission in terms of the following paragraph.

2. In order that the Japanese people may have an opportunity, after the new constitution goes into effect, to reconsider it in the light of the experience of its working, and in order that the Far Eastern Commission may satisfy itself that the constitution fulfills the terms of the Potsdam Declaration and other controlling documents, the Commission decides as a matter of policy that, not sooner than one year and not later than two years after it goes into effect, the situation with respect to the new constitution should be reviewed by the Diet. Without prejudice to the continuing jurisdiction of the Far Eastern Commission at any time, the Commission shall also review the constitution within this same period. The Far Eastern Commission, in determining whether the Japanese constitution is an expression of the free will of the Japanese people, may require a referendum or some other appropriate procedure for ascertaining Japanese opinion with respect to the constitution.