“The recent flurry of legislation, including a proposed anti-conspiracy amendment to the organized crime law, recalls prewar Japan,” Kobe University criminal law scholar Hirofumi Uchida told the Asahi Shimbun in an interview in March.
“Prewar Japan” is a pregnant phrase. It suggests militarist fascism. The legislative flurry began in 2013, when the government of Prime Minister Shinzo Abe passed a law strengthening protection of government secrets. In 2014 came a law allowing the constitutionally pacifist Self-Defense Forces to engage for the first time in “collective self-defense.” In 2015, SDF personnel participating in international peacekeeping operations were permitted, again for the first time, to use weapons for purposes other than self-defense.
Each of these laws provoked spirited but impotent opposition. The governing Liberal Democratic Party and its allies, Komeito and Ishin no Kai, are too strong numerically to be checked. The anti-conspiracy amendment, which would make planning to commit certain crimes a crime, will almost certainly be passed within weeks. Its ominous overtones alarm many, but nothing now foreseeable can stop it.
It reminds Uchida of the notorious Peace Preservation Law of 1925, Article 1 of which read: “Anyone who organizes a group for the purpose of changing the national polity (kokutai) or of denying the private property system, or anyone who knowingly participates in said group, shall be sentenced to penal servitude or imprisonment not exceeding 10 years. An offense not actually carried out shall also be subject to punishment.”
How can “an offense not actually carried out” be justly “subject to punishment?” The question resurfaces 92 years later.
“If the anti-conspiracy law passes,” Uchida says, “the definition of crime, which until now hinged on deeds and their consequences, will change altogether.” Words and thoughts would potentially fall under police purview. Your words and thoughts probably wouldn’t (“ordinary people” needn’t worry, says the government), but you never know, and you (whoever “you” are) might find yourself thinking twice about getting involved in constitutionally protected anti-government protests, or citizens’ movements, labor movements or anything of a public or civic nature if it can — probably won’t (maybe) but can — get you tagged as a “conspirator.”
By the same token, if you’re a journalist, you might think twice about probing too deeply into matters the government might consider secret under the official secrets law. (This is one reason Reporters Without Borders ranks Japan 72nd worldwide in terms of press freedom.) All governments like power and secrecy, and most citizens value their liberty from police observation over their liberty to protest government power and secrecy.
The Peace Preservation Law gave the police powers it had not enjoyed since the enactment of Japan’s first modern criminal code in 1882. When opponents charged the government sponsoring it with violating modern judicial norms, the government, Uchida says, snapped in reply, “Against enemies of society, modern judicial norms are unnecessary.”
The “enemies of society” were then primarily communists. Now they are primarily terrorists. In 1928, there occurred a mass roundup of known and suspected communists and sympathizers — 1,652 altogether. Some died in police custody — among them the left-wing novelist Takiji Kobayashi, under torture, in 1933. About a third of those arrested were tried, found guilty and sentenced harshly.
Could that happen today?, the Asahi Shimbun asks Uchida, whose reply includes the observation that, prewar, the conviction rate in Japanese courts was 98 percent; in 2015, it was 99.7 percent.
The Peace Preservation Law was a government assault on a very new and very fragile experiment in something Japan had never known before: democracy. It came a mere two months after the passage of the Universal Manhood Suffrage Act. “This far and no farther,” the government seemed to be saying. Communist and socialist success in parliamentary elections in 1928 brought the full force of the law to bear. The ensuing crackdown was the death of “Taisho democracy,” so named after the era (1912-1926) in which it was conceived.
State power was a fearsome thing then. It is now, too, but 70 years of postwar democracy have tamed it considerably, and Japanese citizens feel confident in taking their rights and freedoms for granted. What uneasiness there is regarding Abe’s illiberal tendencies seems outweighed by a grateful sense of his firm hand on the helm of state in dangerous and uncertain times. Given threats posed by global terrorism, a nuclear-armed North Korea and an increasingly assertive China, a government hobbled by a pacifist Constitution and democratic constraints on its ability to act may seem an unaffordable luxury.
Taisho democracy died undefended because the authorities terrorized would-be defenders. Postwar democracy is less vulnerable, and the authorities less hostile, however ominous the government’s growing power may seem to some. If Japanese democracy dies, the cause of death will not be murder but a virus related to the one eroding Japanese pacifism — a popular sense that modern-day threats (terrorism, belligerent and powerful neighbors, globalism) and opportunities (globalism again, wisely managed) are such that governments need strength more than citizens need freedom.
Tokyo University law professor Izuru Makihara, writing in the monthly magazine Ushio, cites currently unfolding scandals that would have any other democratic government reeling but to which Abe’s continuing high support ratings seem immune. They include (but are not limited to) the dubiously cheap sale of government land to nursery school operator Moritomo Gakuen, a pedagogical enterprise whose patriotic pedagogy aimed at 4-year-olds Abe and his wife had praised highly; and fumbling by Defense Minister Tomomi Inada — who first denied but later admitted having acted as Moritomo Gakuen’s lawyer, and who first denied but later admitted that the sector of war-ravaged South Sudan where Japanese peacekeepers were stationed had been identified as a combat zone.
Keio University law professor Yoshiaki Kobayashi, in a separate Ushio article, compared Japanese complacency with the South Korean fury that earlier this year toppled a president. A key difference, he says, lies in how each country came to be democratic. Japan was given democracy. South Korea had to fight for it, and in so doing developed a combative vigilance quite foreign to Japan.
For now and the foreseeable future, Japan’s enfeebled opposition and indifferent public leave the Abe government supreme and unchallenged. For how long? Ten years at least, says Makihara. Is democracy with no alternative to the incumbent government democratic?
Michael Hoffman is the author of “In the Land of the Kami: A Journey into the Hearts of Japan” and “Other Worlds.”