Constitution of Jp week 3 and 5

What do Art. 1 and Art. 4 do to the Emperor? Contrast with his Meiji position.

Art. 1: the Emperor is the SYMBOL OF THE STATE AND OF THE UNITY OF THE PEOPLE, deriving his position from the will of the people (popular sovereignty).

Art. 4: he has NO POWERS RELATED TO GOVERNMENT. Meiji contrast: executive power concentrated in his hands, sovereignty from succeeding the throne, ministers individually responsible to him, no accountability to the people.

The Emperor appoints the PM and dissolves the House (Arts. 6-7). So who is really acting? List what Arts. 6 and 7 cover.

The CABINET is really acting:

Art. 6 - he appoints the PM as designated by the Diet and the Chief Justice as designated by the Cabinet.

Art. 7 - ceremonial acts only on the ADVICE AND APPROVAL OF THE CABINET: promulgation of laws/amendments, convocation of the Diet, dissolution of the House of Representatives, attestation of ministers/officials.

Explain COLLECTIVE RESPONSIBILITY under 1946: responsible to whom, as a group or individually, and what enforces it?

The Cabinet is COLLECTIVELY responsible to the DIET (as one body, not minister-by-minister, and to the Diet, not the Emperor). Enforced by the Diet's power to vote out the PM and his Cabinet - which is what makes the Cabinet accountable to the people at the end of the chain.

State the RULE for choosing the PM, then the PRACTICE, then the exception. Why does Matsui say 'the people cannot choose the Prime Minister'?

RULE: the Diet chooses the PM from among its own members. PRACTICE: the PM is the leader of the LDP, chosen among LDP faction leaders - historically through factions and closed-door talks (LDP ruled 1955-2009).

EXCEPTION: it need not be so, e.g. coalition governments. Matsui: voters never vote for the PM directly, and where the ruling party picks its leader internally, the public has no real say in who governs.

Why did PMs often lack control over policy? Trace it to how ministers were appointed - then give the Abe / Takaichi counter-move.

Ministers are appointed by the PM, but priority went to FACTION BALANCE and SENIORITY rather than MERIT - so PMs owed their team to faction deals and frequently lacked control over policy and positions.

Counter-move: Abe strengthened his position above all factions (choices still constrained); Takaichi follows Abe's style: centralization through control of personnel.

Formally the Diet controls domestic policy. In practice, who leads - and who actually drafts the bills?

In practice the CABINET takes the lead - it submits the national budget and most bills. The drafting itself is done by THE BUREAUCRACY, which tends to take the lead in policymaking - not the legislature, nor the ministers. Diet-member bills are now the exception, not the norm.

What does the executive control in foreign policy, and what are the 2 checks/notes attached to it?

The executive manages foreign affairs: appointment of ambassadors and treaty-making / diplomacy (e.g. trade negotiations).

Checks: treaties require DIET APPROVAL; ambassadors are attested by the Emperor (on Cabinet advice, Art. 7).

A crisis hits. What emergency powers does the Japanese Cabinet have under the Constitution? What filled the gap, and what is still missing?

Constitutionally, NONE - there is no emergency-powers provision for the Cabinet (only a House of Councillors emergency session when the House of Representatives is dissolved, Art. 54(2));

it cannot suspend the constitutional system without a statute. Gap partly filled by the Diet: 2003 Armed Attack legislation + 2004 Citizen Protection Act.

Still missing: no statute lets the government suspend/restrict citizens' civil rights in emergencies.

Walk through Art. 69: the House passes no confidence. What are the Cabinet's ONLY 2 options, in order?

Art. 69: option A) RESIGN (the Cabinet resigns en masse), or option

B) DISSOLVE THE HOUSE of Representatives -> general election -> then resign as the new Diet designates the PM. That is the whole design of Diet control over the Cabinet - note it formally requires a no-confidence vote first.

PMs dissolve the House WITHOUT a no-confidence vote. Give 3 justifications and 2 concerns, and name the article used as justification.

Article used: ART. 7 (Emperor dissolves on Cabinet advice/consent). Justifications: accountability - the election reflects the public will and the new Diet designates the PM; balance of power - a tool against a stalling legislature, while the PM's own job is constantly threatened by the Diet. Concerns: legislators fear speaking up against the PM (criticism -> dissolution -> losing their seat); it gives the PM control over the Diet, the opposite of the intent.

What was the TOMABECHI CASE, how did the Supreme Court answer, and which pattern from Weeks 1-2 does it repeat?

A former Diet member challenged the 1952 dissolution (arguing it was made under Art. 7 without a no-confidence resolution, with no real Cabinet advice/approval).

The Supreme Court (Grand Bench, 1960) held dissolution is a HIGHLY POLITICAL QUESTION beyond the reach of judicial courts - even an illicit dissolution has no legal recourse. Pattern repeated: the same judicial deference as SUNAGAWA (treaty) and NAGANUMA (SDF).

Japan uses JUS SANGUINIS. Define both principles, give Japan's rule + source, and one jus soli example.

JUS SANGUINIS (blood): a child is Japanese if the father or mother is a Japanese citizen at birth - Nationality Act, Art. 2. JUS SOLI (land): nationality by place of birth - e.g. the United States, Canada. Born in Japan to foreign parents = not Japanese, however many generations.

Distinguish OLDCOMERS from NEWCOMERS: origin, key groups, legal trace, and who produced most of the rights litigation.

OLDCOMERS (pre-WWII): colonial legacy - Taiwan/Korea; nationality deprived 'overnight' -> special permanent resident status; the ZAINICHI Korean community produced most rights litigation/cases.

NEWCOMERS (post-WWII, mostly 1980s-): labour migration - Japanese Brazilians (nikkeijin visa 1989-), migrants from across Asia, high-skilled professionals, international students. Total foreign residents: 4.13 million at end of 2025.

A family has lived in Japan for 3 generations but has not naturalized. Give the 3 barriers from class.

1) IDENTITY: an assimilationist culture makes it either/or, not a pluralistic identity.

2) LOSS OF ORIGINAL CITIZENSHIP: dual citizenship is not allowed (Nationality Act, Art. 14) - naturalizing means surrendering the old nationality.

3) HISTORICAL LEGACIES: colonial history shapes how naturalization is seen.

Name the FOUR KINDS of rights in Week 5 (Japanese terms too) and give 2 examples of each.

1) FREEDOMS: speech, religion.

2) SOCIAL RIGHTS: health insurance/medical care, public education, child care allowance, pensions.

3) PUBLIC EMPLOYMENT: public officials, public-school teachers, public-hospital nurses, police, firefighters.

4) VOTING RIGHTS: national/local elections, local referendums, party membership/intra-party elections? Each kind gets a different legal answer.

McLEAN (1978): what was at issue, and what were the TWO halves of the Supreme Court's answer?

At issue: freedom of speech (anti-war activity) vs exclusion based on political activities (visa renewal refused).

Half 1: fundamental rights DO cover foreigners, except rights that by nature apply only to Japanese nationals.

Half 2: a visa may still be denied at the government's discretion - rights are guaranteed only within the framework of the residence system.

How did foreign residents get social welfare in Japan? Cover health care, child care allowance, and PUBLIC ASSISTANCE - with the key qualifier for each.

Health care/medical treatment: extended at local governments' initiative, on humane consideration.

Public education: not mandatory, but eligible.

Child care allowance: based on RESIDENCY, not nationality. Public assistance: permanent residents eligible as administrative DISCRETION, not as a RIGHT (the Act, Art. 1, says 'all citizens').

State TAKAO's thesis in one line, and the shift in his title: 'from BENEFICIARIES to PARTICIPANTS'.

Thesis: LOCAL GOVERNMENT is the single most important factor promoting foreigners' rights in Japan. Local governments - living with residents daily - reinterpreted/extended national rules and delivered services while national policy stayed statist.

The shift: foreigners stop being treated only as beneficiaries of help and become participants in the community.

Foreign residents can be local public employees. What ceiling did the 2005 TOKYO CASE set?

Expansion came from local governments hiring foreign residents. The ceiling (2005 Tokyo case): a foreign employee could be prevented from promotion to positions involving the EXERCISE OF PUBLIC AUTHORITY or POLICY-MAKING POWER.

So: service posts open, authority posts closed.

What exactly did the Supreme Court decide in 1995 about LOCAL voting rights? Right, ban, or something in between? Add the Korea contrast.

In between: local voting rights MAY BE GRANTED AT THE DISCRETION OF THE DIET, but are NOT A CONSTITUTIONAL RIGHT (Arts. 15 & 93).

Japanese legislation has been proposed but never passed. Contrast: Korea grants local voting rights to permanent residents (since 2005), as do several other countries.

Two edge cases: (1) MUSASHINO 2021 - what was proposed and what happened? (2) Why is party membership a rights question if parties are 'private'?

Two edge cases: (1) Musashino, Tokyo: an ordinance would have let foreign residents (registered 3+ months) vote in local referendums - the city assembly voted it down 14 to 11 in Dec. 2021.

(2) Parties are officially private organisations (absent from the Constitution), but in practice they are part of government - Diet seats plus the LDP head is almost always the PM - so excluding foreigners from membership/intra-party elections can exclude them from choosing who governs.