Abdication would pose legal challenges for imperial system

http://www.japantoday.com/category/national/view/abdication-would-pose-legal-challenges-for-imperial-system

TOKYO —

The video message from Japan’s 82-year-old Emperor Akihito released Monday, indicating his desire to abdicate, raises a host of legal issues, including how the Constitution defines the emperor and how to revise the Imperial House Law.

The law, which sets out rules for imperial affairs, including the line of succession, has no provision for abdication. To make abdication possible, a revision of the law or enactment of an ad hoc law would be required.

Imperial succession takes place upon the demise of an emperor, as stated in Article 4 of the existing law, enacted in 1947. The last emperor to abdicate was Emperor Kokaku in 1817.

The law also stipulates that a regent shall be established in the event that “the Emperor is affected with a serious disease, mentally or physically, or there is a serious hindrance and is unable to perform his acts in matters of state.”

Looking at how the emperor is described in Japan’s postwar Constitution, Article 1 states the emperor is the “symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power.”

A provision on abdication that relied on the emperor’s desire would be inconsistent with the emperor’s role as defined in the supreme law.

Any potential change to the emperor’s role would make his status as a symbol of the state uncertain and mark a change to the current imperial system, sources privy to the matter said.

Another contentious point relates to Article 4, which states that the emperor “shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government.”

If the government complied with the emperor’s desire by taking steps for legal changes to enable abdication, the move could be viewed as political involvement on the part of the emperor, in violation of the Constitution, government sources said.

The government has responded in parliament that if an emperor is allowed to abdicate, there would be “a retired emperor” and such a situation could prove harmful. The government has said a situation could also arise in which an emperor is forced to step down against his wishes.

If the Imperial House Law was made subject to amendment, it could also reignite debate about allowing women and their descendants to ascend the throne, as well as enabling female members of the imperial family to establish their own imperial branches after marriage to commoners.

The law’s Article 1 states that the imperial heir must be “a male offspring in the male line belonging to the Imperial Lineage.”

Amid concern that the imperial family would not be able to maintain its activities in a stable manner, given its large number of female members, the government in October 2012 proposed creating female imperial branches, but debate fizzled out due to a change in government.

To avoid going down this road, the idea of a special law only applicable to the abdication of Emperor Akihito is being floated, sources close to the matter said.

Citing the emperor’s role as being tied to the “will of the people,” a government source said the passage of any legislation for abdication would require the almost unanimous approval of Diet lawmakers as representatives of the nation.

Among other tricky legal issues is how to define the relationship between a former emperor and the new emperor, as well as the powers of the new emperor.

Legal provisions related to the financial arrangements for a retired emperor, such as his residence, budget for living expenses and staff arrangements, would also be required.

The role of the crown prince’s brother Prince Akishino following the emperor’s abdication would also need to be discussed.

If the emperor’s eldest son, Crown Prince Naruhito, ascends to the throne in accordance with the order of succession stipulated in the current law, the next in line would be Prince Akishino. But, under the law, there would be no crown prince as the position is held only by the son of an emperor.

© KYODO

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