Constitutional Imperialism in Japan/Chapter 2
II. The Privy Council
According to Ito’s Commentaries the Privy Council is “the highest body of the Emperor’s constitutional advisors,”[1] as well as “the palladium of the Constitution and the law”; and its duty, according to the same authority, is “to be perfectly loyal and straight-forward in furnishing advice to the Emperor.” It is higher than the Cabinet, because its advice may be asked concerning the organization of a cabinet. Moreover, all the measures of a cabinet may be referred to it by the Emperor, either before they are presented to the Diet by the Cabinet, or after they have passed the Diet. The Privy Council is, therefore such an influential body that membership therein is accounted a very great honor. It must, however, be said with regret that occasionally the Privy Council has been found a convenient place in which to shelve a prominent man for whom some provision must be made. And the ministers of State who form the Cabinet have seats in the Privy Council ex officio and are just enough by themselves to constitute a quorum of ten members.
The Privy Council has a voice in giving advice to the Imperial Family Council concerning such important matters as changing the order of succession to the throne and the selection of a regent in case the Emperor is a minor. And the Privy Council may be particularly consulted by the Emperor in case of a political crisis. While the Cabinet is “a board of the chief executive officers”, the Privy Council is “a deliberative body consisting of the chief legal advisors of the Sovereign.” Ito suggests that “it will certainly prove an important piece of constitutional mechanism.”[2] Indeed, the gradual evolution of the power of the Privy Council is a most noteworthy feature in the Japanese constitution. On the other hand, those who believe in popular institutions think that the Privy Council has “usurped” power and that its authority must be limited by reforms in its official organization.[3]
It is scarcely necessary to give details of the organization of the Privy Council; but it may be well to reproduce the following articles of the imperial Ordinance of 1888, as amended in 1890:
Article II.—The Privy Council shall consist of one President, one Vice-President, twenty-five Councillors, one Chief Secretary and five Secretaries.
Article VI.—The Privy Council shall hold its meetings for the purpose of advising His Majesty the Emperor, and shall state its opinions with regard to the following matters:
1. Matters which come under its jurisdiction according to the Koshitsu Tempan (Law of the Houses).
2. Drafts and doubtful points relating to articles of the Constitution and to laws and ordinances dependent to the Constitution.
3. Proclamations of the law of siege provided for in Article XIV, and Imperial Ordinances mentioned in Articles VIII and LXII of the Constitution, as well as all other Imperial Ordinances of a restrictive character.
4. International treaties and pledges.
5. Matters relating to the amendment of the organization of the Privy Council and the rules for conducting business in the Privy Council.
6. Matters specially called for, besides those mentioned in the last paragraphs.
Article X, Paragraph 2.—The President shall cause the Chief Secretary to make explanations and shall afterwards allow the members to discuss matters freely, but no member can speak without obtaining the permission of the President, who may engage in all debates, and shall point out the questions to be decided, and require members to vote with regard to the same.
We also reproduce, from the original Ordinance of April 28, 1888, the following statement:
Article VIII.—Though the Privy Council is the Emperor’s highest resort of council, it shall not interfere with the Executive.