One of the most important areas of constitutional law that was changed in the 1946 constitution was civil liberties and rights. The old Meiji constitution placed significant limitations on all the basic rights which many countries have come to accept: freedom of speech was guaranteed subject to the limitations of laws which could be changed; freedom of assembly was guaranteed subject to the limitations of law and so on. The new constitution made rights clear and absolute. Thus, Article 19 says in its entirety ‘Freedom of thought and conscience shall not be violated’, and Article 21 guarantees ‘freedom of assembly and association as well as speech, press and all other forms of expression’ while Article 36 states ‘The infliction of torture by any public officer and cruel punishments are absolutely forbidden’.
The pre-1945 experience had established a very strong body of opinion in favor of absolute guarantees for civil liberties, but it also conditioned the population to expect a degree of censorship, for example, which contradicted that body of opinion. In the postwar period, exercise and preservation of civil liberties grew quickly, but not without pain and conflict. Gradually a balance between the public’s interest in order and the public’s insistence on civil liberties has emerged. Few people hesitate to express themselves fully and publicly on virtually any issue; no one worries about arbitrary arrest or search; and discrimination based on class is not permitted.
Civil liberties, however, depend very much on social standards and mores. For example, women were liberated under the new constitution and were given the right to vote and run for political office at any level. As Torazaemon suggests, however, ‘most women just do what their husbands tell ’em to do’ and Chizuru has to admit that is true. Women have equal rights and liberties under the constitution, but social patterns still discriminate against women while women generally accept a certain level of discrimination. Gradually, perhaps, the differences between men and women in Japanese society are decreasing, but they are still there and few women are willing to struggle against the existing discrimination through the legal system.
To give another example, freedom of the press is guaranteed, yet there have been a series of disputes over textbooks which cast a degree of doubt on the guarantee. The Ministry of Education consistently presses textbook authors to make revisions to their texts to bring them into accord with the Ministry’s fairly conservative interpretations. Since schools and publishers generally purchase or print textbooks subject to the Ministry’s advice, the Ministry’s opinion is crucial to commercial success. In the early 1980s, authors were encouraged to describe Japan’s invasion of China as an ‘advance’ rather than an invasion. Court action was taken, but the courts decided that since the Ministry merely ‘recommended’ revisions, it was the voluntary consent of the authors which was important.
Thus, civil liberties may still not be as firmly and broadly established as in a few countries, but they are certainly much improved in comparison to the pre-1945 period.
