The government is set to consider introducing a one-time special law that would allow Emperor Akihito to abdicate, but it would likely struggle to clear the hurdle over the legislation's compatibility with the Constitution.
That's because Article 2 of the Constitution stipulates, "The Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial House Law passed by the Diet." If it is strictly interpreted, the Imperial House Act needs to be revised to allow the Emperor to abdicate. To fend off criticism that the establishment of a new provision is unconstitutional, a proposal has emerged that the special legislation be regarded as part of the Imperial House Act.
The government is to consider introducing special legislation because it will need to stipulate conditions in detail for an emperor to abdicate if the Imperial House Act is to be amended. Revising the Imperial House Act will constitute a permanent revamped system that will apply to future emperors and it will take time to discuss it. Out of consideration for Emperor Akihito's advanced age, the government wants to swiftly deal with the issue by aiming to submit legislation to next year's ordinary session of the Diet. A government source said about the special legislation's compatibility with the Constitution, "It is all right to think that the Imperial House Act includes special legislation. It is just a technical issue."
Nonetheless, constitutional scholars are split over the issue. Many conservative scholars in particular take the position that emphasis must be placed on the phrase in Article 2 of the Constitution that "the Imperial House Law is passed by the Diet" and it must be strictly interpreted. Reitaku University professor Hidetsugu Yagi, who is close to Prime Minister Shinzo Abe, said about the special legislation, "In terms of legal technicalities, it entails difficulties and destroys constitutionalism." Nihon University professor Akira Momochi says that a new provision providing the basis for allowing the Emperor to abdicate should be created and added, for example, to a supplement of the Imperial House Act.
Under these circumstances, the idea of a special provision is being floated within the government as one of the proposals to deal with the abdication issue. It is based on the theory that if the envisioned special legislation is regarded and positioned as part of the Imperial House Act, it will become more compatible with the Constitution.
Meanwhile, there is a group of scholars who believe that stand-alone special legislation will be enough while attaching importance to the phrase, "in accordance with the Imperial House Law passed by the Diet," in Article 2 of the Constitution. Koichi Yokota, professor emeritus at Kyushu University, said, "The intent of the current Constitution is to determine the rules related to the Imperial Family by law, unlike the Meiji Constitution under which the (then) Emperor decided these rules." He argues that special legislation will not contradict the supreme law as he believes that the current Imperial House Act can be treated the same way as ordinary laws, as opposed to the Meiji Constitution.
For this reason, Katsutoshi Takami, professor emeritus at Sophia University, says, "As long as the Imperial House Act is general law, what is not allowed could be dealt with through special legislation." At the same time, the experts argue that the issue should be dealt with by revising the Imperial House Act under normal conditions, with Yokota saying, "(Special legislation is) not desirable in the legal sense of the word," while Takami said, "It is a last-ditch measure."
Professor Yagi questions the envisioned one-time special legislation, saying, "Will there be legislation aimed at a particular individual?"