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WITHIN the last two years the Japanese Privy Council has twice opposed acts of the Cabinet which enjoyed the general support of the Japanese nation. In one case it compelled the Government to repudiate its signature of the clause "in the name of their respective peoples" in the Pact of Paris; in the other it embarrassed the Government by prolonged discussion of its procedure in the signature of the London Naval Treaty. In the former instance a Seiyukai cabinet was the object of attack, in the latter the ministry was Minseito. The Privy Council is no respecter of persons other than the Emperor.
The criticisms of the Privy Council which are voiced almost daily in the Japanese press are part of the aftermath of the manhood suffrage act, but the cue to their current intensity may be found in the extraordinary popularity enjoyed by the Minseito ministry, particularly the confidence generally exhibited in Premier Hamaguchi and Foreign Minister Shidehara. Hamaguchi, a powerful figure in his own right, is a courageous standard-bearer of the principle of parliamentary government. The people of Japan relish the leadership of a fighter; and although they are essentially conservative, the acquaintance with world affairs which they are gaining from the newspapers is influencing them in favor of the internationalist point of view. In recent controversies the Cabinet has been upholding this view against the Privy Council.
Liberalism is always relative to other circumstances. In the Japanese elections of 1930 (even making due allowance for Home Minister Adachi's cleverness as election manager) the landslide which overwhelmed what non-partisan critics rated as "the worst government Japan ever had" was an expression of liberalism. Home Minister Suzuki, in engineering the 1928 election for the Seiyukai, had been no less clever than Adachi and had enjoyed as great financial resources, but he had failed to secure more than a bare plurality. In 1930 the voters changed to a leadership which they believed to be more progressive and more in harmony with the trend of the times toward democracy and internationalism. Thus the second election held under the manhood suffrage act yielded the fruits for which its sponsors had hoped.
What are to be the consequences of these developments upon the control of foreign relations? Do they mean that the cabinets which succeed the present government will have the same success in translating policy into law? In particular, do they portend the end of the authority of the Privy Council and the rise of parliamentary control in the realm of foreign affairs? Is the last of the world's privy councils to join its European prototypes on the shelf of historical souvenirs?
The Privy Council in its present form is not an old institution. Established in 1888, it is younger than the Cabinet by three years. Its twenty-six members are all elderly men chosen for their distinction in various careers; they presumably are above ambition for active participation in public affairs. Count Ito called the Council "the highest body of the Emperor's constitutional advisers," the "palladium of the Constitution and the law." He recorded in his famous "Commentaries" his conception of its function: "planning far-sighted schemes of statecraft and effectuating new enactments, after careful deliberation and calm reflection, by instituting thorough investigations into ancient and modern history and by consulting scientific principles." It is a constitutional body, meeting in the Palace in the presence of the Emperor.
The purview of the Privy Council in its advisory function is as wide as the business of government. All statutes, imperial ordinances and treaties require its approval. The ministry must keep in constant touch with it, reporting from time to time upon the routine of administration and even asking its consent to the increase of a departmental staff by a single official. When we remember that the average age of Councillors is threescore and ten, we can easily understand the resentment of a cabinet of busy, energetic and progressive younger men at having to run to the Council for approval of their every important move.
The Genro, Japan's unique half-dozen elders of the Choshu and Satsuma clans, used to rule the state and dominate the Privy Council. The most powerful of them all, Prince Yamagata, was president of the Council from 1905 to 1922, and he packed the body with friends and relatives. His efforts were consistently directed toward extending the Council's supervisory powers and thwarting the growth of the Diet. Only since his death has it been possible to observe whether the Council is per se a serious obstacle to parliamentarism. The sole survivor of the Genro, Prince Saionji, is not a member of the Council.
The Privy Council's prime source of strength is its function of interpreting the Constitution. This function is also the principal source of criticism, since it leads to interminable inquisitions upon the compatibility of imperial ordinances, treaties and administrative actions with the terms and spirit of the Constitution. The Constitution is a sacred document; it has never been amended and a subject may not petition the Diet in behalf of an amendment. Since members of the Council are not chosen for their qualifications as constitutional lawyers, it hardly seems an appropriate body to exercise the function of interpreting the Constitution, and this despite the fact that it includes among its members two of Ito's coadjutors in the drafting of the Constitution.
The Privy Council's position in all matters of foreign relations is very strong because of the Diet's incapacity, under the Constitution, to act in that field. But this situation clearly is passing. As the parliamentary system becomes fixed, the Cabinet (as in England) will be called upon to acknowledge responsibility to the House of Representatives in the discharge of its duty in the foreign as well as in the domestic field. Even today the responsible ministers are careful to lay proposals on foreign policy before both Houses and to show themselves willing to reply to interpellations. So long, however, as the Privy Council has the final decision the part of the Diet will appear perfunctory.
Our exposition of the Privy Council's power cannot advance far without a reference to the parts played by the military and naval staffs and by the Genro. The place of the staffs in the constitutional system is one of direct responsibility to the Emperor in matters concerning the supreme command of the army and navy. They are authorized to formulate plans for the national defense as well as to devise schemes of strategy and tactics. The surviving member of the Genro, Prince Saionji, at the age of ninety-one continues to advise the Emperor and ministers on all aspects of state policy.
It may appear to the reader that in view of the Japanese Emperor's position as an absolute monarch it should be easy for him to choose between the advice offered by Cabinet, Privy Council, General Staff and Genro. But the Japanese constitution is like others in reading one way and operating another. The Restoration of 1867 did not greatly alter the Emperor's relation to administration, though it removed the last vestige of the feudal system and thus gave room for the Emperor to resume the dignity that his title demanded. The Constitution, promulgated in 1889, refused to acknowledge what everyone understood, and it is written in the terminology of absolutism. And thus it is that all who would not have their loyalty questioned, from peasant to professor, continue to speak of the Emperor as doing this, that and the other thing when all the professors and at least some peasants know that their country is ruled by an oligarchy which the political party leaders are struggling to overthrow.
It is this necessity for solemnity that retards parliamentary government in Japan. Since the Emperor cannot choose between the advisory groups, each is supreme within the range of its function. The Constitution does not specifically recognize the advisory spheres of the military departments nor the Genro. But the unwritten constitution does. For example, if the military leaders or the Council advise the Emperor contrary to the Cabinet's program this is equivalent to Imperial disapproval. Wherefore the obligation upon the Government to resign should such a contingency occur. To prevent such conflicts if possible, and to resolve them on the Emperor's behalf if necessary, has been the function of the Genro, a function to which long practice has lent an aspect of constitutionalism. It is apparent that what is needed, in the absence of a specific amendment to the Constitution, is the growth of an understanding or convention by which all executive agencies other than the Cabinet will be regarded as advisory to it as the single interpreter of the Imperial will. Thus the theory of the integral union of the dynasty and the state would be preserved while the course of administration and of legislation would be smoothed.
The obstacles to this development as a stage in constitutional evolution, a development which Prince Saionji is understood to favor, are so deeply rooted in Japanese political life that to remove them will be a slow process. The greatest obstacle is the persistence of the feudal tradition which continues to support, albeit less effectively as the years pass, the prestige of the great clan families which ruled pre-Restoration Japan and which manœuvred to increase their influence during the era of Meiji. The ramifications of this influence, so difficult to trace, extend throughout the executive agencies, the Imperial Household Ministry, the civil service and the House of Peers, weaving a curtain for the concealment of the older political forces, a net to enmesh the feet of "upstart" party politicians. A second obstacle is the extraordinary hold of the military services, based on the legal requirement that the heads of the war and navy ministries shall be high ranking officers and that they, and also the chiefs of the general staffs, shall report directly to the Emperor on matters affecting the supreme command. A third is the extremely bureaucratic spirit of all the government services -- a spirit which extends into the educational field, and lends the whole Japanese scene an aspect of uniformity. Most restrictive of all is the apparent inability of all classes to apply their sense of humor to their conception of the State.
During consideration of the Pact of Paris in the House of Representatives the member generally recognized as one of Japan's most consistent liberal politicians introduced a lengthy interpellation from which the following is taken:
"According to the English or the French text of the treaty, it is the Japanese people, not the Emperor, who are the subject of the pact. In face of this, does the Government believe that the treaty neither contravenes the Japanese Constitution nor impairs the national policy of this country?
"If the anti-war treaty is ratified by the Emperor in its present form, it will mean that the Emperor declares for the exclusion of war either 'on behalf of the people' or 'by the mandate of the people.' In the case of monarchies like Britain and Belgium, where the monarchs simply preside and do not rule, it is proper that the peoples should be the subjects of treaties to be concluded, but in the case of this country, where the Emperor controls and exercises the supreme sovereign authority and monopolizes the right of concluding treaties . . . it is impossible for the people to become the subject of a treaty. . . .
"After what it has done the present Cabinet ought to go into sackcloth and ashes and await the Emperor's pronouncement of judgment on its offense."
The humor of the situation lies in the fact that where Premier Tanaka, head of the Choshu clan, saw no offense to the Emperor, a great liberal raised the cry of lèse-majesté. In so doing he stood shoulder to shoulder with the most conservative element in the Privy Council.
The views of the section of the naval service hostile to the London naval treaty were reflected by a section of the Privy Council. A minority supported the Government in seeking to ratify the treaty without argument. The majority accused it of having acted without justification in that it had not gained the approval of the Naval General Staff before signing the treaty. But the Cabinet was stronger than the opposition because it was generally known to be supported by Prince Saionji and by influential Imperial House-hold advisers. Consequently, Premier Hamaguchi found it possible not only to push the treaty through the Privy Council but also to refuse that body's requests for the report of the War Council to the Throne, for the appearance before it of the former Chief of the Naval Staff, and for a report from the Government upon its naval replenishment program. The Privy Council's discomfiture was complete.
It would not be difficult for the Government to assert its supremacy if it were free to exercise its power to appoint the members of the Privy Council without restraint from traditional forces. At present the Council's power to veto ordinances prevents a change in its organization or powers without its consent. No proposal of this character has been made public, but within recent months the Council itself has discussed the revision of its regulations. A general sentiment in favor of facilitating business was found to exist. To this end a group numbering half the membership proposed that the practice of withholding from members the text of measures laid before the Council by the Government until such measures have been considered by a committee should be abandoned and further, that any member who desired to attend committee sessions should be free to do so.
Granted that the foregoing analysis of the political forces operating today in Japan is correct, it is plain that we have not sufficient evidence upon which to base a confident opinion regarding the immediate trend in the evolution of the Privy Council. Its constitutional and legal powers are intact, though its prestige has suffered. There is no basis for prophesying an early change in its status. It did not reject the London Naval Treaty; it has never rejected a treaty. No one can say what would happen to it if it should reject a treaty. But there is little doubt that in such a case the Cabinet would resign.
The destiny of the Privy Council is wrapped up with that of the Genro and the military services. When the latter agree with the Council's position on a governmental proposal it is strong; when they disagree with it, it is weak. In speaking of the Genro today one includes with Prince Saionji a trio of Imperial Household ministers and a similar number of elder statesmen who are frequently consulted by governments on important matters and are sometimes spoken of as the quasi-genro. As long as the influence of these forces persists it is possibly an advantage to a party cabinet to have the Privy Council retained. At least it provides a forum in the full view of the public, whereas the struggle against genroism and militarism is a fight in the dark.
While it must be recognized that traditional agencies still control Japan's foreign relations, their hold has loosened perceptibly during the last decade. The center of popular interest today is the House of Representatives. The genuineness of this interest is shown in the crowded halls at campaign meetings, in the high percentage of those eligible to vote who vote at general elections, and in the attendance in the galleries of the Diet. It is in this capacity of the House to hold the popular interest and to justify popular expectations that the Cabinet must find authority to assert a priority over Privy Council, the military, Genro, Peers and Household Ministry. By means of precedents such as Hamaguchi has already set, the Cabinet must seek gradually to build up its position as the Emperor's supreme adviser; supreme because it is the mouthpiece of the people, whose rights and property the great Emperor Meiji, in promulgating the Constitution, declared that he would respect and protect.
The very definite progress which has been made along the road of democracy since the passage of the manhood suffrage act is having its influence upon foreign affairs and is assisting to overthrow the dual control which has been the bane of the Japanese Foreign Office. When Japan's chief delegate to the London Naval Conference returned to his home country he found the Government at loggerheads with the Naval Staff, but he also found that he was the hero of the populace, who thronged the station square in Tokyo to cheer him for his part in reducing the tension of naval competition and the burden of taxation. Another powerful aid to the Cabinet in its effort to advance to a position of control is the effect of foreign, particularly of American, opinion. One militarist after another is sacrificed to the general determination to keep step with other nations in the march toward disarmament and the peaceful settlement of international disputes. These influences do not wait upon constitutional changes; they produce situations which render old procedures obsolete.