- Koshi Yamazaki is a law professor in Niigata Law School, Niigata University, Japan.
After setting aside in 2003 a draft bill that would create a national human rights institution in Japan, the government and the ruling Liberal Democratic Party (LDP) agreed in principle to resubmit it, after some modifications, during the 2005 Diet (Parliament) session. The 2005 draft Human Rights Protection Bill (draft Bill) (1) "freezes" provisions that place human rights violations by the media within the scope of "special remedies" procedures; and (2) provides for the revision of the law if necessary after a certain period of time from enactment.
Human rights organizations and the media reacted strongly to the move to resubmit the draft Bill. They argued that (1) the independence and ability of the "Human Rights Commission" ("Commission") to respond appropriately to violations occurring in government institutions such as prisons and immigration detention facilities would be undermined if set up under the Ministry of Justice; and (2) there are provisions in the draft Bill which might deter investigation and reporting by the media.
At the same time, members of the Research Commissions (including those on human rights) of the LDP Judicial Affairs Division, during its 10 March 2005 meeting, argued against the draft Bill by saying that (1) the definition of human rights violation under the draft Bill is vague and would infringe other rights protected by the Constitution, such as freedom of expression; and (2) the selection process of the Civil Liberties Volunteers, who would engage in providing remedies under the "Commission", is unclear. They also regret the deletion of the nationality clause. This situation jeopardizes the party decision to resubmit the draft Bill.
The draft Bill establishes a "Human Rights Commission" that provides accessible, swift and no-cost remedies to people who have been discriminated, abused or whose human rights have been otherwise violated. Aside from the 5-member, Tokyo-based "Commission", the draft Bill also provides for the appointment of "Civil Liberties Volunteers" all over the country who will be attached to it ("Commission"). The "Civil Liberties Volunteers" will deal with issues in their respective local areas.
The recent discussions on the draft Bill are going off-course from the main issues involved. Bearing the current situation in mind, why a new human rights remedies body is necessary and the shortcomings in the draft Bill should be pointed out.
In Japan today, human rights violations occur between private persons in cases of discrimination in employment, marriage, etc., against people of Buraku origin, Ainu people, and foreign residents; xenophobia; child abuse; domestic violence and discrimination based on disabilities. Violations by public authorities occur as abuses in prisons, immigration detention facilities and police cells. Violations by public authority rarely attract public attention, unless they involve major court decisions.
The Japanese Constitution provides that everyone shall be respected as individuals, are equal under the law, and will not be discriminated on grounds of race, creed, sex, social status or family origin (Articles 13 and 14). Japan is also party to the International Covenant on Civil and Political Rights, whose Article 2 makes Japan commit itself to respecting and ensuring those rights to all people in Japan without discrimination.
Merely providing for rights in the Constitution and international treaties do not make these rights a reality, however. When rights are violated, people will not reach out to help unless the person involved seeks remedies by him/herself.
A person whose rights are violated can seek the help of the civil liberties administration section of the Ministry of Justice and the complementing system of civil liberties volunteers, comprised of approximately 14,000 volunteers nationwide. If they do not provide adequate remedies, judicial remedies can be sought. There are also private initiatives, such as the Appeal for Human Rights Relief system by the Bar Associations.
But the civil liberties administration and volunteers have so far not enjoyed much public trust. Recourse to court takes time and money, and requires the victim to speak in public about the violations and discriminations suffered. These burdens forced many people to give up seeking judicial remedies. Meanwhile, the Bar Associations have no investigative authority in their human rights relief activities and their recommendations and warnings do not have legal binding force. As a result, many victims of violations continue to suffer, abandoning the pursuit for remedies.
The 2003 draft bill prohibits human rights violations such as discrimination and abuse, provides measures to prevent such violations, and provides for remedies. Since Japan does not yet have a general and comprehensive human rights remedies law, the fact that such a draft bill was prepared is a welcome development. The proposed "Human Rights Commission" under the 2003 draft Bill has the appearance of a national human rights institution.
The current draft Bill, which has not been submitted to the Diet as of 23 March 2005, however has several shortcomings and needs fundamental change, as follows:
Article 2 of the draft Bill defines "human rights violations" but not human rights. An unambiguous definition of human rights is necessary in order to provide a clear judgement standard for the "Commission," and to prevent the scope of human rights from being arbitrarily diminished. An unambiguous definition of human rights can be stated as follows, "for the purpose of this Bill, the term "human rights" shall mean rights stipulated in the Constitution as well as treaties concerning human rights which Japan has ratified or acceded to."
Article 3 of the draft Bill lists discrimination, ill treatment, and violation by the media as the three types of human rights violations. This provision covers violations by public authority. But in order to clearly make the violations by public authority subject to remedies, they should be treated as another type of violations. Treating human rights violations by public authority, which relates to the exercise of state power that has a high degree of intransparency, on the same level as those by private persons in effect relatively minimizes their seriousness.
Special procedures for investigating allegations of human rights violations by administrative organs and civil servants, and providing remedies for them, are necessary. It can also be provided that concerned administrative organs are duty-bound to cooperate with the "Commission" in cases of violations by them.
The draft Bill allows persons, who suffer infringement of privacy or defamation, or excessive media attention, to apply for remedies. On receiving the application, the "Commission" may initiate special remedies procedures including issuance of recommendations and their publication. The standards and requirements for deciding whether an infringement of privacy or excessive media activities has occurred is unclear, however, and arbitrary decision by the "Commission" may place undue pressure on the mass media.
To ensure that the media freely investigate and make reports, remedies for their human rights violations should be taken cared of by their own self-regulatory body. Provisions placing them within the scope of the special procedures should be deleted and not "frozen." No national human rights institutions in other countries take up violations by the media as a separate category.
The Paris Principles attaches great importance to the organizational independence of national human rights institutions. The "Commission" foreseen by the draft Bill is under the jurisdiction of the Minister of Justice (Article 5), based on Article 3 of the National Government Organization Law. But effective remedies for cases of violations by public authority cannot be expected from a "Commission" that is under the jurisdiction of the Ministry of Justice since they actually occur in institutions within the Ministry such as the prisons and immigration detention facilities. In a system, where the "Commission" is under the jurisdiction of the Minister of Justice and its secretariat staffed by officers of the Ministry, the independence of the "Commission" cannot be effectively guaranteed and it will face difficulty in gaining public trust.
The "Commission," therefore should appropriately be established under the Cabinet Office, which oversees and coordinates the administrative organs from a higher vantage point (or under the Cabinet, as in the case of the National Personnel Authority).
The "Civil Liberties Volunteers" system under the draft bill will not be much different from the current Civil Liberties Volunteers system, except that it will be placed under the "Commission." There will be no nationality requirement, however, to reflect social diversity in the composition of the "Volunteers". But still there is a controversial call within the LDP for " Volunteers" to be holders of Japanese nationality, causing a lot of debate. "Civil Liberties Volunteers" will give advice and conduct general inquiries, but will not have any powerful authority for special investigations. These "Volunteers", around 14,000 of whom will be active nationwide, will be in a position to understand the human rights issues of the local area, and it is necessary to have people with diverse backgrounds in these positions. Considering the fact that the number of foreign residents is increasing, and facing various human rights violations, people of foreign nationality should also be able to become "Civil Liberties Volunteers."
It will make no sense to have a "Commission," unless it is accessible to the people. Only one central "Commission" will be established under the draft Bill, and its members are expected to address and decide on human rights issues from all over the country. Human rights issues often arise out of normal every day lives of the people, in the context of the local features, customs and history. To solve these problems effectively, and in a manner compatible with the local situation, a "Commission" must exist at prefectural level as an independent office with power to provide remedies.
The "Commission" may submit its views to the Prime Minister, the Diet, etc. according to the draft Bill. In order to achieve not just solutions to individual cases, but radical solutions to human rights issues, it should be able to submit not just "views", but "policy proposals." The "Commission" is expected to play a role in (1) the formulation of human rights education and awareness-raising policies; (2) legislation, amendment and abolition of laws that implement human rights policies; (3) changing administrative practices on human rights policies; (4) ratification of, and accession to, human rights treaties; (5) cooperation with the human rights offices of the UN and other countries; and (6) preparation of national reports required by human rights treaties.
Many people in the Japanese society suffer from human rights violations and discrimination. To recover the innate rights of these people and to maintain a just society, it is the duty of the Diet and the Cabinet as well as a national concern to improve the human rights remedies system, including the establishment of a national human rights institution. The draft Bill is expected to be a part of this endeavor. It should not be buried in political and ideological conflicts.
(This article has been translated and re-edited from an article in Sekai No. 739, 2005.5)
For further information, please contact: Prof. Koshi Yamazaki, Niigata Law School, Niigata University, Japan; ph/fax: (81-25) 262-7451; e-mail: koshy@f5.dion.ne.jp