Do Princess Mako’s difficulties marrying mean the Imperial Family lacks human rights?

TOKYO — It’s been more than three years since Princess Mako, eldest daughter of Crown Prince Fumihito, and her partner Kei Komuro announced their informal engagement. And yet, opposition to the union remains deep-rooted, and the current state of the couple’s plans is unknown.

Although there are many causes for this situation, the Constitution of Japan stipulates that marriage “shall be based only on the mutual consent of both sexes,” and guarantees it as one of the fundamental human rights enjoyed by the people of this country. Given this, could we then say that members of the Imperial Family are perceived as not having human rights?

Does the Imperial Family have human rights? Before we jump into that question, let’s review the events around the princess.

Although the engagement between Princess Mako and her college sweetheart Komuro was unofficially approved in 2017, it came to light afterwards that Komuro’s mother had financial issues involving her former fiance. As is widely known, the news sparked a backlash against the planned marriage and led to the postponement of their official engagement ceremony.

Despite this they remained determined to wed, and in autumn 2020 Princess Mako released a statement that reaffirmed her intention to marry Komuro. Her father, too, who had until then maintained a careful stance on the issue, also indicated at a November 2020 press conference that he accepts the marriage, saying, “It says in (Article 24 of) the Constitution that marriage shall be based only on the mutual consent of both sexes. If they really feel that way, then I think that that is something that one should respect as a parent.”

But lawmaker and former Speaker of the House of Representatives Bunmei Ibuki put forward a different interpretation. At a meeting of his faction at the Liberal Democratic Party (LDP) on Dec. 3, 2020, he expounded his view that the position of the Imperial Family is based on certain limits, saying, “The mass media has written a number of things about marriage coming from the mutual consent of both sexes, and that the pursuit of happiness is a right, but (a marriage in the Imperial Family) is legally somewhat different.”

Are they thought of as “the people” of this country as described in the Constitution? Something about Ibuki’s statement caught this reporter’s interest. What’s the thinking on this from a perspective of constitutional studies?

Shin Hori, 57, a lawyer based in Kanagawa Prefecture just south of Tokyo who is an expert on the emperor system and its relation to the Constitution, told me, “Among constitutional scholars there are a variety of opinions regarding human rights and the position of the Emperor and the Imperial Family in the Constitution.”

“The first question is whether the Emperor and the Imperial Family are treated as among ‘the Japanese people,’ and whether their fundamental human rights are guaranteed. This can be roughly split into two schools of thought.” According to Hori, the first is “that the Emperor and the Imperial Family are among the Japanese people, but their human rights are restricted.”

He continued, “The thinking is that because they are Japanese people, they are subject to the human rights guarantees under the Japanese Constitution, but to maintain the Imperial system’s line of hereditary succession, they are an exceptional case in which their fundamental human rights are limited to the absolute minimum required.

“For example, freedoms stated under Article 22 of the Constitution, including that the people can choose and change their residence, choose their occupation and live overseas, are not guaranteed for the Imperial Family. And while Article 24 does secure people’s right to freedom in marriage, the marriage of a male member of the Imperial Family needs approval from the Imperial Household Council, set under the Imperial House Law that lays down the status of the Emperor and Imperial Family.”

The late Nobuyoshi Ashibe, who held positions including as professor emeritus at the University of Tokyo and who developed the foundation for the current interpretation of the Constitution, was of this view. Under this thinking, the current marriage issue would face the limits the Imperial House Law places on male Imperial Family members, but as Princess Mako is a woman, her freedom to marry would be guaranteed in accordance with Article 24.

The interpretation which is opposed to this view says that “the Emperor and Imperial Family do not qualify as ‘the Japanese people’ whose rights are guaranteed by the Constitution, so their human rights are not guaranteed.” University of Tokyo Professor Emeritus Yoichi Higuchi and Waseda University’s professor Yasuo Hasebe, among others, broadly support this view.

If we apply the latter view, then despite the law not having anything in writing about female family members’ marriages as it does for male ones, they also don’t have freedom of marriage guaranteed under the Constitution because they’re not ‘Japanese citizens’ to begin with.

“Personally, if we were to set aside questions of good and bad, I would say that under the current situation, the theory that the Imperial Family does not qualify as ‘the Japanese people’ has, in a theoretical sense, consistency,” Hori said.

He continued, “I feel this way because reality is completely different from the thinking behind the view that ‘the Imperial Family are the Japanese people,’ which says that ‘The Emperor and Imperial Family are members of the Japanese people, but they have the minimum necessary limits on their fundamental human rights.’ In reality they don’t have freedom of expression, and the Imperial succession is only available to men, so it is in opposition to gender equality.

“Due to this, we can’t possibly say that they have the same position as the Japanese people. It’s beyond ‘the minimum necessary limits.’ The argument that Imperial Family members are also the Japanese people gets caught in this contradiction.”

I saw what he meant. If you took the view that “the Emperor and the Imperial Family are not among the Japanese people, so there’s no need to consider whether they enjoy the same human rights afforded by the Constitution,” then logically the argument is clear.

But, is it permissible as a human being to say decisively about another human being, who is the same as you, that “there’s no need to consider their human rights”? Looking at Princess Mako’s issues, it would mean that because the Constitution doesn’t guarantee members of the Imperial Family’s freedom to marry, she shouldn’t be allowed to marry Komuro. But that seems like an excessive interference, and as a person it seems mistaken to me.

Hori agreed strongly: “That’s the problem,” he said. “It goes without saying, but the Emperor and the members of the Imperial Family are living people with blood in their veins. And this is an important perspective, which is connected to Princess Mako’s marriage issues and even to how we maintain the Imperial line, but I think there are a number of arguments that don’t take this view of them into account.”

Then we turned to the subject of Empress Masako. Hori said, “When Emperor Naruhito and Empress Masako married, I also had quite unassuming thoughts of being happy for them, and things like that. The national mood had a celebratory air, too.

“But the marriage forced Empress Masako to give up her career built up at the Ministry of Foreign Affairs. There were a number of pressures regarding childbirth, and I questioned myself when reading reports of her struggling with her health and the vagaries of her official duties in an environment like the Imperial Household. Did I fail to see the members of the Imperial Family as flesh and blood human beings? After that I began seriously questioning issues around human rights and the Imperial Family.”

Let me approach this problem anew. If a private female citizen marries a male member of the Imperial Family and becomes a member of the family, what does it mean for her? That person, as one of the Japanese people, would have had all of their fundamental human rights under the Constitution provided for, but it would mean that at the moment she married, she would have some or all of these rights taken from her.

Hori responded, “This is an extreme example, but if all the women in this country rejected the loss of their rights, then it would mean there are no potential marriage partners for male members of the Imperial Family. Effectively, the Imperial system would not be able to continue.”

But if that was the case, then how do we attain both the preservation of the Emperor and Imperial Family, and human rights?

“Even if there was legal consistency, the argument that they are not Japanese people would still not solve the issues,” Hori said. “Rather, if we think about it from the point of view that the Imperial Family are also Japanese people, then all we can do is reduce limits on human rights as much as possible.

“For example, in the case of the freedom to choose one’s occupation, it would be granted to the members other than the Emperor and the next person expected to take the throne, and as far as civic rights, they would be recognized for Imperial Family members except for the right to stand for election.

“In the modern age, the environment in which an emperor is born and raised is getting closer to the one that normal citizens experience. There are probably people who also think, ‘The Emperor and the Imperial Family protect the ancient traditions of Japan, and should continue living a separate, special existence from the people.’ But if you just force your own ideas on the Imperial Family, the problem will not be solved.”

(Japanese original by Riki Yoshii, Integrated Digital News Center)