Constitutional Imperialism in Japan/Chapter 7
VII. Rights and Duties of Subjects
The Japanese Constitution contains fifteen Articles (XVIII–XXXIII) on the topic of the duties and the rights of subjects. It states that the conditions necessary oer being a Japanese subject shall be determined by law. It permits Japanese subjects, according to certain qualifications, to hold public office. It makes them amenable to military service and to payment of taxes, according to law. It specifies that they shall have liberty of abode within the limits of law; that their right of property shall remain inviolate; that their houses shall not be entered or searched without their consent, except in cases provided for in the law; that the secrecy of their letters shall remain inviolate, except in cases mentioned in law. It gives them permission to present petitions, under certain proper conditions.
It declares:
No Japanese subject shall be arrested, detained, tried or punished, unless according to law (Article XXIII).
No Japanese subject shall be deprived of his right of being tried by the judges determined by law (Article XXIV).
It also prescribes that
Japanese subjects shall, within the limits of law, enjoy the liberty of speech, writing, publication, public meetings and association (Article XXIX);
and that
Japanese subjects shall, within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief (Article XXVIII).
It will of course be observed, that all the immunities and privileges of Japanese subjects are limited by such conditions as “according to the provisions of the law”, “except in the cases provided for in the law”, “within limits not prejudicial to peace and order”, etc. It may, therefore, be correct to say, as Uyehara says: “The Constitution of Japan provides no absolute guarantee in respect of civil rights and liberties.”[1] He also states rather strongly:
As a matter of fact, that part of the Constitution which deals with the rights and liberties of the people is a mere ornamental flourish, so long as the Government is not responsible to the people.[2]
On the other hand, it must be acknowledged, that, during the first twenty-five years of constitutionalism in Japan, great progress has been made in the extension of popular rights and privileges by laws which have been enacted. If the reader will kindly take the trouble to glance back over the review of the thirty-six sessions of the Diet, he can see for himself that this statement is true. He should notice especially what was accomplished in the fourth, the tenth, the thirteenth, and the fourteenth sessions in the way of extending popular rights and privileges. And this advance is a kind of guarantee of still greater progress under more favorable conditions all along the line of popular government. In appraising the value of what has been accomplished, though it is far from being satisfactory, one must be careful not to pass judgment according to the standard of Anglo-Saxon ideas of individual rights and privileges. It is fair only to compare the Japan of 1915 with the Japan of 1890. The writer was living in Japan (in Mito), when the Constitution was promulgated (1889) and when the first Diet met (1890); and he can testify from personal observation and experience to the progress which has been made in a quarter of a century in the expansion of personal rights and liberty.