Japan Needs to Amend the Imperial House Law After Akihito’s Request to Abdicate the Throne

By: Steve Ragatzki

The Japanese monarchy is the oldest continuous monarchy in the world.[1]  Japanese Emperor Akihito became emperor when his father, Emperor Hirohito, died in 1989.[2] After Akihito was formally enthroned on November 12, 1990, his reign was declared “Heisei,” meaning “Achieving Peace.”[3] Under Akihito’s reign, Japan has worked toward that goal. In May 1990, Akihito expressed “deepest regret” for the Japanese occupation of Korea from 1910-1945.[4] In October 1992, Akihito made the first visit by a Japanese monarch to China and stated that he deplored Japanese treatment of the Chinese before and during World War II.[5] And in July 2009, Akihito visited Hawaii and laid a wreath at the National Memorial Cemetery of the Pacific for veterans of World War I, World War II, the Korean War, and the Vietnam War.[6]

As he aged, Akihito was beset by health issues, including heart problems and prostate cancer.[7] On August 8, 2016, after almost 30 years as Emperor, Akihito hinted at his desire to abdicate the throne[8]:

It was some years ago, after my two surgeries that I began to feel a decline in my fitness level because of my advancing age, and I started to think about the pending future, how I should conduct myself should it become difficult for me to carry out my heavy duties in the way I have been doing, and what would be best for the country, for the people, and also for the Imperial Family members who will follow after me. I am already 80 years old, and fortunately I am now in good health. However, when I consider that my fitness level is gradually declining, I am worried that it may become difficult for me to carry out my duties as the symbol of the State with my whole being as I have done until now.[9]

The Problem:

The Japanese Constitution provides that “[t]he Emperor shall be 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.”[10] According to the Constitution, the Imperial Throne is dynastic, and must be succeeded in accordance with Imperial House Law.[11] The Imperial House Law provides only one means of dynastic succession: death of the Emperor.[12] Moreover, the Throne may only be passed to the next male offspring in the male line of the Imperial Lineage.[13] While there is already a successor to the throne—Akihito’s son, Crown Prince Naruhito[14]—the fact still remains that Akihito can’t abdicate according to the current law. 

Currently, the Imperial House Law allows for a regent to be appointed when “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.”[15] Under this language, Akihito could cite his failing health and step down so a regent could assume responsibility until Akihito’s death. Crown Prince Naruhito would become regent in this event under Article 17 of the Imperial Household Law. Article 17 provides that the Regency shall be assumed by a member of the Imperial Family of age in the following order:
1. The Kotaishi , or Kotaison
2. A Shinno and an O
3. The Empress
4. The Empress Dowager
5. The Grand Empress Dowager
6. A Naishinno and a Jo-o[16] 

The Imperial Household Law defines Crown Prince Naruhito as the “Kotaishi”: “The son of the Emperor who is the Imperial Heir is called ‘Kotaishi.’”[17] Thus, Crown Prince Naruhito will assume Regency if Akihito declares himself unfit to rule. But Crown Prince Naruhito will not truly become Emperor until Akihito actually dies.[18]

The Solution:

            The Japanese Imperial House Law needs to be amended to allow Emperor Akihito to abdicate the Chrysanthemum Throne. The amendment would be simple – change article 4 of the Imperial House Law to state “Upon the demise of the Emperor or abdication of the throne by the Emperor, the Imperial Heir shall immediately accede to the Throne.” This is a simple and common sense solution that the Japanese Diet can implement quickly.

Although the emperor is a “figurehead with no political authority,”[19] the emperor still weighs in on sensitive issues and provides guidance to the country’s leaders.[20] Japan is at a crossroads and faces significant future issues: a declining population and stagnant economy.[21] The Emperor needs to encourage continued social stability and remind the Japanese of their national strengths in order for Japan to remain a global power.[22] Therefore, it would lend more legitimacy to Crown Prince Naruhito’s statements if he were the official Emperor instead of a Regent waiting to ascend to the throne.

* * * * *

[1] Russell Goldman, 5 Things to Know About Japan’s Emperor and Imperial Family, N.Y. Times (Aug. 8, 2016), http://www.nytimes.com/2016/08/09/world/asia/emperor-akihito-japan-imperial-family.html?_r=0.

[2] Akihito: Emperor of Japan [Born 1933], Encyclopaedia Britannica, https://www.britannica.com/biography/Akihito.

[3] Id.

[4] Emperor Akihito Fast Facts, CNN (Nov. 30, 2015), http://www.cnn.com/2012/12/07/world/asia/emperor-akihito---fast-facts/.

[5] Id.

[6] Id.

[7] Martin Foster, Japan’s Emperor Akihito says health is failing and hits at abdication, Guardian (Aug. 8, 2016), https://www.theguardian.com/world/2016/aug/08/japans-emperor-akihito-health-abdication-rare-tv-address.

[8] Will Ripley & Joshua Berlinger, Japan’s Emperor Akihito fears age could impact ability to rule, CNN (Aug. 8, 2016), http://www.cnn.com/2016/08/08/asia/japan-emperor-akihito/.

[9] Emperor Akihito, Emperor of Japan, Message from His Majesty The Emperor (Aug. 8, 2016), transcript available at http://www3.nhk.or.jp/nhkworld/en/news/editors/3/20160808/.

[10] Nihonkoku Kenpo [Kenpo] [Constitution] ch. 1, art. 1 [hereinafter Japanese Constitution], http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html.

[11] Japanese Constitution, ch. 1, art. 2.

[12] Kōshitsu Tenpan [Imperial Household Law], No. 237 of 1947, ch. 1, art. 4 http://www.kunaicho.go.jp/e-kunaicho/hourei-01.html (Japan) [hereinafter Imperial Household Law].

[13] Imperial Household Law, ch. 1, art. 1.

[14] AFP, Crown Prince not shy about criticizing Imperial System, Japan Times (Aug. 9, 2016), http://www.japantimes.co.jp/news/2016/08/09/national/crown-prince-not-shy-criticizing-imperial-system/#.V7naFE0wiUk.

[15] Imperial Household Law, ch. 3, art. 16.

[16] Imperial Household Law, ch. 3, art. 17.

[17] Imperial Household Law, ch. 2, art. 8.

[18] Imperial Household Law, ch. 1, art. 4.

[19] Ripley & Berlinger, supra note 8. For more background on the relegation of the Japanese Emperor to figurehead-status, see Noah Berlin, Constitutional Conflict with the Japanese Imperial Role: Accession, Yasukuni Shrine, and Obligatory Reformation, 1 U. Pa. J. Const. L. 383 (1998).

[20] See, e.g., AFP, Japan’s Akihito heads to Philippines in latest stop on peace parade, Daily Mail (Jan. 23, 2016), http://www.dailymail.co.uk/wires/afp/article-3414065/Japans-Akihito-heads-Philippines-latest-stop-peace-parade.html (discussing Akihito’s pacifist pilgrimage to the Philippines); Jeff Kingston, The people’s Emperor speaks truth to power, Japan times, (Jan. 10, 2015), http://www.japantimes.co.jp/opinion/2015/01/10/commentary/japan-commentary/peoples-emperor-speaks-truth-power/#.V7nX0E0wiUk (discussing Akihito’s comments on war memory and nuclear energy)

[21] Japan has one million fewer people in 2016 than it did in 2008, thanks to a falling birth rate. Shire Armstrong, Japan’s Greatest Challenge (And It’s Not China): Massive Population Decline, National Interest (May 16, 2016), http://nationalinterest.org/blog/the-buzz/japans-greatest-challenge-its-not-china-massive-population-16212. See also Michael Auslin, The Future of the Chrysanthemum Throne: What happens when Emperor Akihito abdicates?, N.Y. Times (Aug. 8, 2016), http://www.wsj.com/articles/the-future-of-the-chrysanthemum-throne-1470698324.

[22] Auslin, supra note 21