The Meiji Constitution and national emergency : The views of Ogushi Toyoo

Abstract

As the inevitability of a "decisive battle on Japanese soil" drew nearer and nearer during what appeared to be the final stages of the Pacific War, a movement arose demanding the declaration of a national emergency as provided for under Article 31 of the Meiji Constitution. Despite the attention that this movement has drawn as of late, there has been yet no attempt to clarify the views on the subject held by the movement's leader and constitutional scholar, Ogushi Toyoo. This article discusses Ogushi's ideas based on his personal archives. Given his interpretation that the emperor possessed unfettered sovereignty (Herrschergewalt) with regard to rights laid out in Article 31, Ogushi deserves to be placed within the Hozumi/Uesugi Legal School on the subject of imperial sovereignty. He was of the opinion that through the imposition of Article 31 a national defense state system would be established with the unification of civil affairs and a supreme military command. In opposition to Ogushi's argument, Odaka Tomoo espoused the idea of Staatsnotrecht (emergency legislation) based on the interpretation of Carl Schmitt and expressed fears about a suspension of the Constitution. Ogushi deemed Odaka's argument unacceptable, for if the powers provided by Article 31 meant Staatsnotrecht, revolutionary forces would be enabled to usurp those powers to deny the sovereignty of the emperor. Meanwhile, the National Science Research Council led by Ogushi drafted a legislative bill to allow the government to implement a state of national emergency, over which the Legislative Affairs Bureau raised problems about 1) the relationship between civil affairs and supreme military command and 2) the relationship of a state of emergency declaration to Article 9 of the Constitution. That is to say, if emergency powers could be exercised to suspend Articles 9 and 55, a state of emergency could not be implemented. In response, Ogushi explained that if emergency powers were exercised by avoiding Staatsnotrecht, no constitutional provision would be suspended, except for the articles of Section 2 concerned with the rights and obligations of imperial subjects. For this reason, the tasks of both solving the legal problems of the draft bill and implementing the actual state of emergency both fell into difficulty. It is on this point that the author shows how Ogushi's application of the Hozumi/Uesugi interpretation of imperial sovereignty to the issue of unlimited powers with regard to Article 31 paradoxically placed limitations on that same interpretation in assisting the nation as it prepared for a fullblown wartime system stressing strong leadership and national mobilization in defense of the homeland.