Yasushi Higashizawa
Japan Civil Liberties Union

Human rights shall be protected in Japan through the Constitution of Japan. The Constitution, which was established just after World War Second and during the occupation by the Allied Forces, and has been unchanged, guaranteed the fundamental human rights to the people of Japan as well as the sovereignty of the people and renunciation of war. With this Constitution, the human rights situation of Japanese nationals has solidly progressed, comparing with that during and before World War Second.

However, despite this Constitution, instinctive understanding of human rights among Japanese people, especially the Japanese government, has been hardly created. There have remained lots of human rights violations unsolved although there have been no dictatorship or war under the Constitution. That is because Japanese people did not acquire the Constitution by themselves through the struggle for human rights and did not fully digested vested rights as their own natural rights. Another reason is that the belief of the Japanese people that they are homogeneous has often excluded aliens and minority people from constitutional protection. Also, the rapid economic growth has sometimes concealed victim's claims while such growth has caused novel human rights violations such as the work to death. In addition, the Judiciary in Japan, which is vested the power to determine the constitutionality of any law, order, regulation or official act under the Constitution, as remained so weak and passive that it failed to keep the Executive and the Legislature from abusing their power against people.

The main issues concerning human rights are as follow:

First, Japanese Government has failed to resolve its responsibility during and before World War Second. During the Second World War, Japan forced people in the Japanese colonies, e.g., Korean Peninsula and Taiwan, to join the Japanese military as military civilians or soldiers to further the Japanese war effort. After the war, the Japanese Government has been paying compensation for the war dead and wounded and to their bereaved families of Japanese nationals. However, that was not a case for people of the former colonies or other nationality and the compensation issue for those people has been left unsettled. The Japanese military also forcibly enlisted people in the former colonies to work as comfort women. Although Japanese Government established a foundation for "comfort women" and their families in 1994 in response to many lawsuits and criticize from international society, the accountability and compensation issues remain unsettled. An expression to apologize by the former Prime Minister, Tomiichi Murayama, for the invasion during World War Second at the 50th post war anniversary has not produced any progress as to the above issues so far.

Second, discrimination against women, foreign residents, minority groups, and mentally-ill people, remains in Japan.

Although Japan is a party of Convention on the Elimination of Discrimination Against Women, it is reported that the average wage of women workers is about half that of men, and discrimination in both hiring and promotion grows worse under recent economic recession. Since overtime work is common among work places and women bear most of the family burdens, women with a family are discouraged to stay in her job. The Equal Employment Opportunity Law of 1986 remains to be ineffective because of its lack of penal provisions. The Child Care Leave Law of 1991 does not encourage workers to apply for this leave because it does not guarantee any payment during the leave or job security.

Korean residents in Japan, the number of whom is 680,000, came to Japan as forced immigrant workers during World War Second or were born in Japan as descendants of those forced immigrants. Most of them refuse to be naturalized as Japanese but stay with permanent resident permission in Japan, keeping their own cultural character based on ethnicity. They are not granted any voting rights, even at local governments, or are granted little opportunities to be civil servants because of not being Japanese nationals. Japanese Government refuses to provide ethnic education for them at ordinary Japanese schools, or to grant equal status or privilege of ordinary Japanese schools to ethnic schools. They often encounter discrimination at recruit or marriage with Japanese nationals. Such are similar to Chinese or Taiwanese residents originated from World War Second.

Foreigners who have stayed in Japan for more than one year are obliged to register fingerprints under the Alien Registration Law. Although the 1992 amendment exempted permanent residents from the registration after lots of law suits and thousands of willful disobedience claiming that the fingerprinting system is discriminatory, degrading and unconstitutional, the system remains without due reasons and another discrimination between permanent residents and non-permanent residents was emerged.

Ainu People are indigenous people who have ever been residing in the northern part of Japan and possess their own language, religion, culture, and tradition clearly different from those of the Japanese people. The number of Ainu people is officially counted as 24,000 and claimed as more. Although recognizing as an ethnic minority, the Japanese Government does not recognize the Ainu people as indigenous people and so does not guarantee their group rights, including their way of life, education, political representation or anti discrimination policy.

Buraku-min people, who are of a Japanese ethnic, have been humiliated as the untouchable since the feudal age in Japan. They are still confronted with discrimination in employment and marriage although both central and local governments hire anti discrimination policy for the Buraku-min people.

Concerning mentally ill people, despite the 1987 amendments to the Mental Health Law of Japan, such problems as involuntary hospitalization without a review by an independent board or a right to appear in court remains.

Legal and social discrimination against illegitimate children exists in Japan. A typical legal discrimination lies in distribution of property to be inherited, and the share for the illegitimate is half of that of the legitimate. Mandatory family registration system distinguishes and easily reveals whether a person is legitimate or not.
Third, Japanese Government has failed to fully recognize human rights of foreigners and refugees in Japan.

In recent years, a large number of foreigners enter Japan seeking employment opportunities without proper visa status particularly from other Asian countries and Latin America. Since the Japanese Government maintains a strict policy to exclude unskilled foreign laborers, such foreigners in Japan are left undocumented. The number of them is officially counted as about 300,000 but reported as more, and they easily face to deportation, sometimes even though they married or had children with Japanese nationals. Also, the duty of public officials at any stage to report undocumented foreigners to the Immigration Control Office strongly discourages the foreigners to report their claims of marital, civil or work related issues, and keeps them from seeking relief's. Stateless children who were born to undocumented foreigners and deserted are increasing though Japanese court granted Japanese nationality in a few cases over against the Government's objection. The availability of medical treatment for foreigners is a critical issue. Undocumented foreigners are excluded from safety net systems in Japan, including the public health insurance policy and the medical assistance system in emergency cases. With regard to treatment of foreigners in criminal procedure, we have published issues in insufficient document translation and interpretation as well as heavier charges than Japanese nationals. Some improvements were made, but others have not seen any improvement yet.

Serious human rights violations remain against female foreigners who were brought to Japan and are working in sexual industries. In such industries and traffickers, the Yakuza and other mafia organization take parts, and those women easily suffer from forced prostitution, exploitation, confinement, violence or illness. While many NGOs help those women to be set free, the Japanese Government has not taken effective means to stop such violence against women.

Although Japan is a party of Protocol Relating to the Status of Refugees, the Japanese Government is extremely reluctant to accept refugees and, other than Indochinese refugees in 1980s, just less than ten asylum-seekers are granted refugee status, if any, in each year. The Japanese Government did not grant any refugee status for pro democracy Chinese activists after the Tiananmen. Asylum-seekers are often forced by immigration officers to withdraw their asylum claims in order to enter Japan, and are often deported before judicial review of executive orders.

Fourth, Japanese Judicial power remains so weak and inactive that it has allowed its Executive to be arbitrary in many aspects. With the lack of public legal aid system, Judiciary in Japan does not work efficiently to promote human rights.

In criminal procedure, courts do not sufficiently check abuse of investigation, prosecution or prison administration.

Daiyo Kangoku: One of the gravest human rights problems in Japanese criminal procedure is posed by the "Daiyo Kangoku" (substitute prison) system, in which suspects -even those who have already appeared before a judge - are continuously held in police custody while being interrogated by police investigators. The Daiyo Kangoku system provides the police with an opportunity to force a confession from a suspect who, while being under the complete control of the police, undergoes an interrogation for hours without access to counsel.

Bail System: A suspect subject to pre indictment detention is not allowed to be released on bail in Japan, which clearly ignores the right of the suspect provided by the "Rules for the Protection of Persons Subjected to Detention in Any Form" adopted by the UN General Assembly on December 9, 1988.

Role of Attorneys: Since 99.8% of cases brought by the prosecution result in convictions by the court in the Japanese criminal procedure, pre trial investigatory findings by police and a prosecutor on which prosecution is based carry tremendous meaning, and adequate legal counsel for suspects is crucial for a fair trial. However, since pre-indictment suspects are not entitled to have an assigned public counsel other than to hire a counsel by themselves, detained suspects are reported to obtain counsel in less than 20% of all cases, even in death penalty cases. The Japanese Government is so unwilling to provide pre-indictment public counsel for suspects that recently bar associations began to provide free counsels at their expense for detained suspects. Under the Code of Criminal Procedure, suspect' meetings with counsel may be restricted by an investigating agency if necessary. Counsels are not entitled to attend interrogations even if suspects want them to do so.

Remedy for Unlawful Arrest or Detention: Courts do not necessarily dismiss prosecution or evidences acquired by unlawful investigation, arrest, search, detention or interrogation. Compensation for unlawful investigation or prosecution is applied only at the discretion of courts, and its amount is, if any, too small to deter unlawful investigation. In juvenile cases to which the Juvenile Law applies, no provisions for retrial or compensation is provided, and courts in juvenile cases ruled that an appeal for retrial cannot be filed after punishment is over and refused to recognize compensation for unlawful investigation.

Treatment of Detainee and Prisoners: A detainee who committed disciplinary offenses in the detention facilities may be confined to a "Protective Room," a solitary cell under the around-the-clock observation. The detainee is not allowed to act without permission there, and is often applied leather handcuffs or handcuffs, even while eating or toiletting. A prisoner who is deemed to be potential in disturbing order or discipline is transferred to "Rigid Solitary Confinement," a small isolated cell. The prisoner shall be always isolated from other prisoners at labor, meal, bath or other activities, and is forced to sit straight until the sleeping time. Such confinement can be prolonged for several years only at the discretion of the prison's director, and seriously causes physical and mental troubles to the prisoner.

Among other many examples to show abuse of the Executive Power of Japan, I note two hot issues, Information Disclosure and the Subversive Activities Prevention Law.

There has been a long struggle for information disclosure system against central and local governments since they have eccentric tendency to conceal any administrative information. At last, most local government have enacted ordinances concerning public information, while central government is preparing a draft of Information Disclosure Bill though trying to include lots of exceptions to avoid disclosure.

The Subversive Activities Prevention Law: The Japanese Government currently applies the Subversive Activities Prevention Law to a cult group which is alleged to commit massacres by saline gas and other homicides. Also, its provisions to prevent any activities for the group is, for the first time in its legislative history, about to be exercised. The Law was introduced in 1950s to prevent communist activities, but has been strongly criticized because of its chilling effect and unconstitutionality. In particular, its provisions to prevent "any activities for the sake of the group" is too vague and overbroad to be penal statute, and is probable to apply not only to the group's criminal activities, but also to private religious conducts and associations of members. Although most people in Japan hope that criminals of the cult be punished and the cult group be dissolved, the application of the Subversive Activities Prevention Law in addition to usual criminal and administrative procedure could cause serious violation of freedom to religion or association.

Fifth, I note issues of Death Penalty and Children's Rights in School Education.

Death Penalty: The Japanese Government still maintains the death penalty and has taken no steps to legislate against it. Although no execution had carried out for three years since 1989, the Japanese Government resumed execution ruthlessly in 1993. Procedural guarantee for death penalty cases is insufficient because, as similar to other cases mentioned in the above criminal procedure, suspects are interrogated and forced to confess with a long detention at police cell and without a mandatory counsel. The accused hardly get acquittal in a court if once prosecuted, and there is a strong possibility of mistrial. Since 1983, four death-penalty convicts were granted acquittal after long and repeated efforts for retrial. The treatment of those sentenced to death carries another problem. Those sentenced to death are restricted to communicate people outside through letters and visits much more strictly than other convicts. Their communication with the media is hardly permitted, and they are not allowed to see their counsels without the presence of officials until courts decide to open retrial.

Children's Rights in School Education: Civil liberties of children are excessively restricted by each school's strict regulations, which include a specific hair style code, trivial but strict dress code, prohibition of acquiring driver's license and so on. Corporal punishment is not unusual despite the prevention by law. Schools as well as central and local governments have taken a negative attitude toward disclosing to a student educational information about the student. The frustration of students causes "Bullying," -harassing- by which scapegoat students are physically or mentally abused by their school mates, and victimized students often refused to go to school or, worse, committed suicide. There are cases where the school authorities have compelled physically challenged children to attend a specific educational facilities by totally neglecting the wish on the part of such children or their parents.

Finally, Japanese Government insufficiently accords to international human rights standard and fails to take required steps to enforce them in international society.

Among major international human rights treaties, Japan is currently a member state of the following treaties: International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights (ICCPR); Convention on the Elimination of All Forms of Discrimination Against Women; Convention Relating to the Status of Refugees and its Protocol; Convention on the Rights of the Child; and International Convention on the Elimination of All Forms of Racial Discrimination. Japan is urged to ratify other international instruments such as Optional Protocol to the ICCPR, Second Optional Protocol Aiming on the Death Penalty, the Genocide Convention, the Anti-Torture Convention. In particular, there should not be any problem to ratify the Optional Protocol to the ICCPR because, under the Constitution of Japan, international treaties are principally self-executing, and treaties and laws of nations shall be faithfully observed.

Although treaties are self-executing in Japan, courts are unnecessarily reluctant to apply and construe international human rights instruments other than constitutional issues. Plaintiffs, both domestic and abroad, are trying to persuade courts in Japan to make use of international human rights instruments.

Also, many NGOs at home and abroad urge Japanese Government to accord with efforts to implement human rights, environmental conservation and democratization in international society. One of the efforts concerns Japan's Official Development Assistance (ODA), the budget of which is the largest in the world. However, not only does Japan fail to consider environmental issues and human rights when granting aid, but also Japanese ODA has been criticized for not meeting the needs of the people in recipient countries and for instead being a cause of military budget expansion, human rights violations, and environmental destruction. In response to such criticism, Japanese cabinet adopted Japan's "ODA Principles" to clarify its ODA philosophy both at home and abroad. "ODA Principles" contains the following four guidelines:

1. Development and environmental conservation should be pursued simultaneously;
2. ODA should not be used for military purposes or for aggravation of international conflicts;
3. Trends in recipient countries' military expenditures, their development and production of missiles and mass destruction weapons, and their export and import of arms should be taken into consideration;
4. Efforts to promote democratization, a market-orientated economy, human rights, and freedom should be taken into consideration.

However, these principles should be enacted as a statute, and want further elaboration and assessing system to implement. In fact, there has been no suspension or cut of ODA on these principles so far.