[Analytics] Rome Statute: between Japan’s ex-emperator and Malaysia’s king

A recent newspaper opinion piece referred to Japan’s imperial history in defending Malaysia’s decision to withdraw from the Rome Statute. The premise of the argument is that Malaysians should not be so naive as to think that our royals are immune from being “hauled up” by the International Criminal Court (ICC). It cites Japan’s role in World War 2 and the position of Emperor Hirohito. Sharifah Munirah Alatas specially for the Free Malaysia Today.

Emperor Hirohito was Japan’s longest-reigning emperor (1926-1989), who ruled during the Showa Era.

Hirohito was an absolute monarch. The Meiji Constitution (Dai-Nippon Teikoku Kenpo) was the constitution of the Empire of Japan, proclaimed in 1889 until 1947. It provided for a mix of constitutional and absolute monarchy, based jointly on the Prussian and British models.

In theory, the emperor of Japan was the supreme leader, and the prime minister and the Cabinet were his followers.

While in theory the Meiji Constitution contained some of the fundamental underpinnings of democracy, in practice it created an absolute monarchy centred around, and with all power emanating from, the emperor.

A key aspect of Meiji Japan was represented by the word “kokutai” or national polity. It is a term that implies state supremacy and obedience to the emperor. It was the dominant paradigm of Japanese identity.

It has been referred to in Japan as “kintei kempo” or “constitution made by the ruler himself”. This is evidence that the emperor played a central role in the governance of Japan.

The Meiji Constitution also vested in the emperor’s absolute executive power and a supreme “god-like” aura. While he did not engage in the actual administration of the Japanese government, the emperor’s political role was inseparable from his religious role as Shinto leader.

This demonstrated the Meiji Constitution’s paradoxical characteristic. Hirohito was administratively impotent, but his power and supremacy was reinforced by the kokutai and Shintoism.

Also, the emperor’s executive powers were clear when Hirohito declared war on the US in 1941. These were his words: “We, by the grace of Heaven, Emperor of Japan, seated on the throne occupied by the same dynasty from time immemorial, enjoin upon ye, our loyal and brave subjects… to declare war on the United States of America and the British Empire.”

This indicates the emperor’s absolute powers in his executive role to mobilise the Japanese army and navy.

Controversy erupted after the war ended, with the International Military Tribunal’s death sentence for Prime Minister Hideki Tojo.

As both the general of the Imperial Japanese Army and the prime minister, Tojo was hanged for war crimes.

Many within and outside Japan felt that Hirohito, as absolute ruler should be held responsible. The confusion exists till today because of the false premise that Hirohito was a constitutional monarch. Meaning, despite his position in the constitution, why was the possibility of trying him even considered?

New evidence surfaced with a memo written by Interior Minister Michio Yuzawa, released in 2018. Among other things, the memo revealed that Tojo was a bureaucrat, incapable of making his own decisions, and who turned to the emperor as his supervisor.

Most importantly, the memo demonstrated a lack of political leadership in Japan.

With this memo, one could deduce that Hirohito was the prime mover of a war-mongering Japan.

One should understand the Japanese cultural nuances that prevailed in their political life.

Japan’s militarism was pegged to a cult of the emperor as a living god. It was devoid of any respect for “the value or the sanctity of human life”.

There is evidence that in 1975, a Japanese journalist interviewed Hirohito. To date, Koji Nakamura is the only Japanese who dared to ask Hirohito about his responsibility in World War 2 and Japan’s catastrophic defeat.

His question was as follows: “At the White House, your majesty referred to ‘that most unfortunate war, which I deeply deplore’.

“May we interpret this to mean that you yourself feel responsible for the war itself, including the fact that Japan waged it in the first place? In addition, may I ask you to share your thoughts about so-called war responsibility?”

Of course, Hirohito did not answer anything meaningful other than to say, “These little tricks of language are beyond me, and I am unable to answer such a question.”

This further demonstrates that Hirohito had something to hide.

The sensation surrounding Japanese calls for Hirohito’s abdication deserves attention. The imperial family was adamant that he should accept responsibility for defeat.

It is obvious that the emperor was considered an absolute monarch. He “disgraced” Japan by losing the war. General Douglas MacArthur served as the Allied commander in occupied Japan. His role was to set Japan up for democratic rule.

MacArthur decided to use Hirohito as his tool. Rather than eliminating the position of emperor, he managed to ensure a peaceful transition by imposing democracy through existing imperial institutions.

As a result, MacArthur’s creation of new Japan was practical, efficient and bloodless. It is only during this period, after 1946, that Hirohito transitioned from absolute to constitutional monarch.

It would appear now, in the light of new evidence, that Tojo was the “fall guy”; Hirohito escaped the war tribunal largely due to MacArthur’s strategy to prevent a violent transition to democracy.

Another assertion is that Emperor Hirohito was pardoned. The US cover-up of Japanese crimes was engineered by MacArthur. While a series of war tribunals was organised, many of the high-ranking officials and doctors who devised and performed the experiments (e.g. Unit 731, in Manchuria) were pardoned and never brought to justice.

Conversely, on Jan 1, 1946, Hirohito issued a proclamation denying his own divinity and denouncing “radical tendencies” among his people. There was no question of a pardon.

In Malaysia, power to declare war lies in the hands of Parliament. In theory, any declaration of war would be announced by the prime minister of Malaysia, on behalf of the Cabinet. This is similar to the British system.

The Malay rulers, historically, accepted their status as constitutional sovereigns. Under Article 41 of the constitution, there are several clauses. These are related to the office of the Supreme Commander of the Malaysian Armed Forces, which is the Agong.

However, not one of these clauses explicitly provides for the declaration of war to be in the hands of the Agong.

Therefore, it is highly unlikely that the ICC could establish the Agong’s individual or command responsibility under the Rome Statute (Article 27) based on provisions in our constitution.

In the case of a declaration of war, this is the prerogative of the Cabinet, or of a minister or the prime minister, acting under the general authority of the Parliament (see Article 40A of the Federal Constitution).