The Compromise and Contradictions in Emperor Akihito’s Abdication Legislation

Devotion to Duties

Emperor Akihito hinted at abdication while discussing his own aging in a video message broadcast to the nation on August 8, 2016. According to media reports, to date he has undergone prostate cancer surgery and a heart bypass operation. The Imperial Household Agency checks the health of the 83-year-old emperor on a daily basis, and has worked to reduce the load of his official duties.

On ascending the throne, Emperor Akihito swore to uphold the Japanese Constitution. As a symbol of the state, he has fulfilled his duties with devotion while remaining approachable to the Japanese public. In recent years, he has visited disaster-hit areas including Fukushima and Kumamoto Prefectures and spoken with local people. Among his symbolic actions, he has made particular efforts to honor the memories of war victims. As well as visiting domestic sites in Okinawa, Hiroshima, and Nagasaki, he has made journeys to World War II battlefields overseas in places like Saipan and Palau.

The government divides the emperor’s activities into three categories. There are kokuji kōi (state functions),(*1) as defined in the Constitution, and kōteki kōi (public functions) performed as a symbol of the state. These are known collectively as kōmu (official duties). Due to the separation of religion and state in the Constitution, imperial court rituals are considered to be private activities, classified as sono ta no kōi (other activities).

There is no legal definition for public functions, and the emperor can choose whether to perform them or not. The present emperor has shown a strong sense of responsibility and zeal toward his official duties. He has sought to be fair to Japanese citizens and prioritized their needs. Accordingly, he has turned a deaf ear to IHA suggestions to reduce his duties, so any moves in this direction have been repeatedly delayed.

The Shrinking Imperial Family

Another issue concerning the imperial family rose suddenly to government attention in September 2011, during the administration of Noda Yoshihiko of the Democratic Party of Japan. This was its severe decrease in numbers. In addition to the reduction due to the deaths of elderly members, under Japanese law princesses are no longer officially part of the family after marrying commoners. As the majority of its younger members are female, the imperial family is likely to shrink considerably. It will be difficult for a smaller imperial family to perform the same duties as now; what is more, the scarcity of eligible heirs to the throne brings an inevitable instability to the question of imperial succession.

Grand Steward Haketa Shingo of the IHA described this situation to Prime Minister Noda as urgent in October of the same year. In 2012, the Noda administration held meetings of academics to discuss the imperial family system, considering the possibility of female members continuing to perform official duties after marriage. The findings, published in October 2012, incorporated the suggestion to create distaff branches of the imperial family. However, in November Noda called a general election, fulfilling an August promise to the Liberal Democratic Party in exchange for support in passing legislation to increase the consumption tax. The Democrats lost the election in late December and the distaff branch idea never came to fruition.

After the LDP came to power, led by Abe Shinzō, the new cabinet continued to discuss how to handle the issues of the shrinking imperial family and reducing onerous duties. This did not appear to be a major priority, though. Reports last July of Emperor Akihito’s wish to step down came like a bolt from the blue.

The emperor’s video message in August was covered intensively, and many citizens showed emotional understanding of his wish to abdicate. It became apparent from interviews with former IHA counselors and other such people that the emperor had indicated the desire to step down beginning several years ago. At his birthday press conference on December 23, 2015, he had spoken directly about his aging and expressed his belief that someone able to act in the symbolic role of emperor should fill the position.

Past Debates

Is it actually possible for the government to take the emperor’s hint and allow him to abdicate? Article 4 of the Imperial House Law states: “Upon the demise of the Emperor, the Imperial Heir shall immediately accede to the Throne.” This limits succession to after the death of the previous emperor.

As there is no provision for abdication in the Imperial House Law, some kind of legal groundwork is required, including an amendment to the law, before it can take place. The Imperial House Law is subordinate to the Constitution and can be amended with a simple majority in both houses of the Diet. When the current law was passed in 1947, it carried over many parts of its former version, including the requirement for succession to follow the previous emperor’s demise.

This was no simple decision when either version of the law was drawn up, though. The former Imperial House Law was promulgated on the same day as the Meiji Constitution, on February 11, 1889. The legal bureaucrat Inoue Kowashi and the statesman Yanagiwara Sakimitsu were tasked with preparing it. They supported allowing the traditional practice of abdication, but Prime Minister Itō Hirobumi vehemently opposed this, wary of the politicization of the emperor, who held great power as commander in chief. At a meeting in March 1887, Itō’s opposition led to the withdrawal of the idea to allow abdication.

The current Imperial House Law came into effect on May 3, 1947, the same day as the present Constitution. Members of the body established in March 1946 to draw up a draft for the law discussed whether to include provisions for abdication in this document. As the abdication question was inextricably linked with that of the war responsibility of Emperor Hirohito (Shōwa), it was a tangled issue requiring negotiation with the General Headquarters of the Supreme Commander for the Allied Powers and deliberation in the Diet.

While Tokyo Imperial University Professor Miyazawa Toshiyoshi and other members of the Legislation Bureau supported allowing abdication, Takao Ryōichi and others in the Ministry of the Imperial Household (the predecessor to the IHA) opposed this. GHQ is believed to have been against abdication due to concerns over an ambitious emperor stepping down to get involved in politics.

Abdication also became a repeated topic for debate in the postwar Diet. In 1984, the question was raised concerning Emperor Hirohito, who was by then over 80. Yamamoto Satoru, the IHA deputy director, responded with three reasons why the Imperial House Law does not include provisions for abdication: concerns that the presence of retired emperors would have negative impacts, that emperors might be forced into abdication, and that emperors might step down arbitrarily.

Certainly, intentional abdication goes against Article 4 of the Constitution, which states that the emperor shall not have political powers. There should be widespread public discussion of the question, considering how to maintain the stability of the imperial institution, while taking into account the Constitution’s stipulation that the emperor’s position derives “from the will of the people with whom resides sovereign power.”

A Compromise Decision

On hearing the emperor express his feelings, many citizens wished for their elderly monarch to relinquish his burden by abdicating as soon as possible. It is very understandable for him to wish to pass his duties to his son and observe how he handles them.

Yet abdication is impossible under the current law, and a regency can only be established if the emperor is seriously ill, injured in an accident, or other such circumstances. The coexistence of an emperor with a former emperor may also weaken the unity of the position’s symbolic nature and authority. This is in plain contradiction to the Constitution’s definition of the emperor as a symbol of “the unity of the People.”

Last autumn, the government appointed an advisory panel to discuss Emperor Akihito’s abdication. After hearing opinions from various specialists, in January it published its findings. Opinions were split three ways between amending the Imperial House Law to make abdication possible, introducing one-off legislation for Emperor Akihito only, and opposing any abdication.

The government and ruling parties responded by supporting one-off legislation, while many opposition parties favored amending the Imperial House Law. This was the starting point for cross-party consultation, arranged following mediation by the leaders of both houses of the Diet.

The Democratic Party took Article 2 of the Constitution at face value—that succession shall be “in accordance with the Imperial House Law passed by the Diet”—maintaining that one-off legislation would be unconstitutional. The ruling parties sought to compromise by proposing the addition of a supplementary clause to the Imperial House Law as grounds for the special legislation.

Article 2 was drawn up with reference to the fact that the original Imperial House Law was a set of family regulations unconnected with the Diet. It reflected the strong American desire to have the law under parliamentary control.

From this perspective, it is important for the Diet to be involved before the government submits a bill. Yet, the recommendations submitted by the house speakers in March are highly contradictory in describing the legislation as both “exceptional” and “setting a precedent.”(*2) Inevitably, there is a need to prioritize the rapid establishment of special legislation in this case. However, the Diet and government must continue to discuss abdication and succession, and legislation making old age a condition for abdication is needed in the near future. Specific plans for dealing with the decreasing numbers of the imperial family should also be clarified.

(Originally published in Japanese on April 12, 2017. Banner photo: A copy of the Imperial House Law. © Aflo.)