Overview: Human Rights in Japan
Jinken, the Japanese word for human rights, appeared in the late 19th century. Yukichi Fukuzawa, a famous Japanese intellectual, coined the term at a time when Japan was opening up to European and American ideas and technology. Despite a late 19th century law that banned discrimination against a group of Japanese called Burakumin, the discrimination continued. This led to the formation of a levelers movement, called the National Levelers' Association (Zenkoku Suiheisha), in the 1920s. The movement adopted the so-calledSuiheisha Sengen (Suiheisha Declaration) in 1922, which the movement presently regards as an early Japanese human rights declaration. (See the Human Rights Declarations section in this website for the text of this document). It was the 1946 Constitution of Japan (Nihon Koku Kenpo) that formally adopted human rights, with a provision on “fundamental human rights” in Article 11. The 1946 Constitution also provides for women suffrage and the separation of state powers as a principle of democratic Japanese government.
The Japanese government identifies several human rights issues in the country relating to children (particularly on bullying, corporal punishment, child abuse, child prostitution, and child pornography), elderly persons, persons with disabilities, Dowa Issues (or discrimination against the Burakumin), Ainu people (indigenous people in Japan), foreign nationals, HIV carriers, Hansen's disease patients, persons released from prison after serving their sentence, crime victims, people whose human rights are violated using the Internet, the homeless, persons with identity disorders, and women. The issue of sexual preferences is also listed as a human rights [i] problem. Japanese human rights organizations add other human rights issues involving government officials such as in the case ofdaiyo kangoku(substitute prison) system and the interrogation process for crime suspects.[ii]
Among the human rights issues listed by the government, a few legislations have been enacted while special plans were adopted for other issues. The legislations include:
- Law for Punishing Acts Related to Child Prostitution and Child Pornography, and for Protecting Children 1999) and the Child Abuse Prevention Law 2000, amended on May 25, 2007.
- Law on Special Measures to Support the Independence of the Homeless Law No. 105, August 7, 2002.
- The Law for Special Measures for the Treatment of Gender for People with Gender Identity Disorders (Law No. 111, July 2003).
The enactment of laws needed to implement the other ratified/acceded to international human rights treaties are still to be seen. The Committee Against Torture, for example, recommends that the definition of torture provided by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) be incorporated into its Penal Code and that “ all types of public officials, individuals acting in an official capacity, or individuals acting at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity, such as members of the Self Defence Forces and immigration officials” be made liable for torture under the law. The Committee likewise raised questions on the system for processing refugee application, the substitute prison (daiyo kangoku) system, the inadequate guarantees of rights of arrested persons during detention and interrogation, the prison conditions (including those sentenced with death penalty, among others.[iii]
Japan has not established a national human rights institution. The Japanese government undertakes human rights promotion and protection work through the two major, parallel systems: the Human Rights Bureau under the Ministry of Justice and the Human Rights Volunteers.
The Human Rights Bureau works along with eight Human Rights Departments under the MOJ’s Legal Bureaus located in eight major cities in the country. These government human rights organs deal with “human rights infringements” which are defined as “not only against the law but also are against the spirit of respecting human rights, which is the basic principle of the Constitution of Japan and the Universal Declaration of Human Rights.[iv]
Parallel to the existence of the Human Rights Bureau is the group of Human Rights Volunteers (around 14,000 volunteers existing in the country) who are appointed by the Minister of Justice. They are “people in various fields [who] should work to encourage respect for human rights, make efforts to avoid infringements of the rights of residents, and protect human rights in the local community.
The human rights organs undertake “voluntary” investigation to determine whether or not human rights infringement has occurred based on “requests” for relief from victims or based on report of newspapers and magazines. Once the occurrence of human rights infringement has been confirmed, relief measures can be provided including legal advice, conciliation, strict warning to the perpetrator, and assistance to the victim [v]
From among the Human Rights Volunteers, some are appointed as conciliators under the “Human Rights Conciliator System.” They “conciliate the claims and interests of the parties concerned from a fair and neutral point of view and try to solve cases peacefully. Some are appointed by the Minister of Justice as Volunteers for Children's Rights Protection who exclusively deal with problems affecting child rights. The Volunteers for Children's Rights Protection collect information on children's rights in addition to promoting cooperation with the PTA [Parents-Teachers Association], Kodomokai(Children's Neighborhood Association), and the Commissioner for Children to identify signs of abuse as soon as possible in order to solve the problems.”
Japanese human rights organizations [vi] criticize the government for failing to establish an independent national human rights institution. They also cite the inadequacy of the current human rights mechanism in the country. The Human Rights Bureau of the Ministry of Justice, for example, is criticized for having most of its personnel doing part-time work since they hold other positions at the same time. The fact that the Human Rights Bureau is part of the Ministry of Justice leads to the argument that this situation provides “limitations to the remedies available for human rights violations made by the state and bureaucracy,” and which the Japanese human rights organizations find as “not uncommon” occurrence. [vii]
Of the international human rights treaties and their optional protocols adopted by the United Nations (UN)as of September 2009, Japan has ratified several of them.
International treaties ratified/acceded to by Japan:
|Name||Date of Ratification|
|1.||International Covenant on Civil and Political Rights (ICCPR)||21 June 1979|
|2.||International Covenant on Economic, Social and Cultural Rights||21 June 1979|
|3.||International Convention on the Elimination of All Forms of Racial Discrimination (CERD)||15 Dec 1995|
|4.||Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)||25 June 1985|
|5.||Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)||29 June 1999|
|6.||Convention on the Rights of the Child (CRC)||22 April 1994|
|7.||Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict||2 August 2004|
|8.||Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography||24 January 2005|
|9.||International Convention for the Protection of All Persons from Enforced Disappearance||23 July 2009|
|10.||Rome Statute of the International Criminal Court||April 2007|
|11.||Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others||1 May 1958|
|12.||United Nations Convention Relating to the Status of Refugees||9 December 1993|
|13.||Convention Relating to the Status of Refugees||3 October 1981|
Under the Japanese legal system, a ratified treaty has the same legal status as a domestic law, [viii] and also takes precedence over all related laws with the exception of the Constitution. Accordingly, amendment or repeal of preexisting laws has to be done if they conflict with the provisions of a ratified treaty, or new laws have to be enacted if treaties to be ratified or acceded to obligate a State Party to take legislative measures where no such measures are in place. So far, there are only two cases in which the Japanese parliament (Diet) amended a law or enacted a new law before the ratification of international human rights treaties. One is in the ratification of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the other is the United Nations Convention Relating to the Status of Refugees. [ix] International Convention on the Elimination of All Forms of Racial Discrimination (CERD) since 1995, there is still “no comprehensive law that prohibits discrimination between private individuals, and this has resulted in it being very easy to discriminate on the basis of race, ethnicity, descent and so on, in spheres such as employment, housing, customer service and marriage.”[x]
The Committee on the Elimination of Racial Discrimination has been encouraging Japan to recognize its competence to receive and consider individual complaints relating to racial and other forms of discrimination covered by CERD. [xi]
In general, Japanese courts have been observed as weak in citing international human rights standards in their decisions. Other principles under the ratified/acceded to international human rights treaties have also not been adhered to by Japanese courts. The admission of statements of defendants as evidence against them, despite proof of use of torture to obtain such statements, contradicts the provision of CAT on non-admissibility of such statements as court evidence.[xii] Recent court decisions that reverse convictions based on alleged confession of defendants seem to provide a new direction in the judicial view on the issue.
[i] Ministry of Justice, "Major Human Rights Problems," in www.moj.go.jp/ENGLISH/HB/hb-03.html
[i] Ministry of Justice, ibid.
[ii] Joint NGO submission by Japan Internationa Human Rights NGO Network and 51 Signatory Organizations Related to Japan for the Universal Periodic Review, 2nd Session of the United Nations Human Rights Council, scheduled in May 2008, page 3.
[iii] Conclusions and recommendations of the Committee against Torture, CAT/C/JPN/CO/1, 3 August 2007.
[iv] See "Human Rights Infringement Cases" under "Activities of the Human Rights Organs of the Ministry of Justice," in www.moj.go.jp/ENGLISH/HB/hb-02.html#2-5
[vi] Joint NGO submission by Japan International Human Rights NGO Network and 51 Signatory Organizations Related to Japan for the Universal Periodic Review, op. cit., page 1.
[vii] Ibid., page 1.
[viii] Japanese laws in English are available at http://www.japaneselawtranslation.go.jp/
[ix] Before ratification of the Convention on the Status of Refugees, Japan enacted the Immigration Control and Refugee Recognition Law. The reason was that Japan did not have any procedures for refugee recognition until then. The Law in English version is available at http://www.immi-moj.go.jp/english/index.html.
[x] Joint NGO submission by Japan International Human Rights NGO Network and 51 Signatory Organizations Related to Japan for the Universal Periodic Review, op. cit., page 2.
[xi] See Paragraph 29 of the Concluding Observations of the Committee on the Elimination of Racial Discrimination issued on 6 April 2010 (CERD/C/JPN/CO/3-6), page 9.
[xii] Op cit., page 5. Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides the following: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”