April 8, 2002
Human Rights Forum 21

On March 8, the government submitted the draft Human Rights Protection Bill to the Diet. The draft prohibits human rights violations, such as discrimination and abuse, and establishes a Human Rights Commission, as a body to prevent as well as provide remedies for such human rights violations. To this day, Japan has not had a general or comprehensive law providing remedies for human rights violations, therefore this legislative attempt should have been a welcome development. The draft, however, cannot be accepted wholeheartedly, because it contains fundamental flaws raised in [1] below. It also includes various problems in its details, as shown in section [2], and unless these flaws and problems are corrected, the legislation will not be able to genuinely contribute to providing remedies for human rights violations.

It is hoped that in the coming Diet sessions, the content and problems in the draft will be closely examined, and the necessary amendments introduced to achieve an effective human rights protection bill. Human Rights Forum 21 publicized its comments, "Views on the draft Human Rights Protection Bill -on the Cabinet decision of March 8." We are now issuing the revised version, in view of the draft Bill facing deliberations in the Upper House in April. We would be happy if our views put forth herewith could be of any help in initiating serious deliberations in the Diet.

We will closely watch the Diet deliberations on the draft Bill, while continuing to call for a realization for an effective national human rights organ (human rights commission) in conformity with the UN Paris principles, and independent from the government.


[1] Fundamental flaws in the draft Human Rights Protection Bill

(1)The definition of "human rights" is unclear.

• Article 2 of the draft Bill defines "human rights violations" but not "human rights" itself. An unambiguous definition of "human rights" is necessary to provide a clear judgement standard for the new Human Rights Commission, and so that the scope of human rights will not be arbitrarily diminished.
  
• For that purpose, Article 2 of the National Human Rights Committee Act of the Republic of Korea adopted last year may be referred to as an example. The draft should include a definition of "human rights" in Article 2 paragraph 1 of the draft Bill, in such form as "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."
  

(2)The draft lacks viewpoint of the victimized (vulnerable, affected) parties.

• The draft Bill lacks the viewpoint of the victims of human rights violations and persons vulnerable to discrimination in solving human rights issues. For example, provisions for the appointment of members of the Commission and Human Rights Commissioners do not contain any mechanism, in which the opinions of the victims and vulnerable persons can be reflected. There is also no room for regular consultations between the Human Rights Commission and human rights NGO/NPO's.
  
• The draft Bill gives the impression of generally being a legislation to implement "remedies from above," rather than striving towards relief on the same level as persons suffering from discrimination and abuse. Such a Human Rights Commission as is foreseen in the draft will not earn the trust of the victims and vulnerable persons.
  
• To establish a Commission, which will be trusted and used by the victims and vulnerable persons, a mechanism through which their viewpoints and ideas can be reflected should be introduced in the provisions for organizational structure and exercise of functions.
  

(3)The Commission lacks independence

• Article 7 of the draft Bill stipulates that, "(The Chair and members of the )Human Rights Commission shall perform their functions independently, "however, the Bill lacks any arrangements to ensure the independence of the organization and exercise of functions of the Commission.
  
• The Human Rights Commission is to be subject to the jurisdiction of the Minister of Justice, and the existing Civil Liberties Bureau of the Ministry of Justice will be restructured to form its secretariat. With such an organizational structure, we cannot expect the Commission to fulfil its functions independent from the Ministry of Justice. Under the existing vertical sectionalism of the administration, if the Commission is subject to the jurisdiction of the Justice Ministry, it will mean lack of independence from other ministries and administrative agencies of the government. It will be impossible for the Commission to be actively involved in matters under the jurisdiction of other ministries and agencies.
  
• The composition of the Commission, in which 3 out of 5 of the members are part-time, is also problematic in terms of ensuring independence. With such an organizational structure, the administration of the Commission will be dependent on the secretariat. This will lead to the Commission being managed along the intentions of the Ministry of Justice.
  
• To ensure independence, the Commission should be placed under the Cabinet Office, so that it can exercise a comprehensive coordinating function from a higher level than the other ministries, rather than under the Justice Ministry. Further, it should have the authority to reinforce its independence, such as those to employ its own secretariat staff.
  

(4)The Commission is overly centralized.

• The Commission envisioned by the draft Bill, will be established only at the center, and its members will address and decide on human rights issues from all over the country on its own. There is almost no room for local governments to be involved in remedial procedures of the Commission. The paragraph allowing local office functions to be delegated to the District Legal Affairs Bureau (Article 16 paragraph 3) indicates that administration of the functions will be centralized.
  
• This kind of centralized system is not compatible with the current call for promotion of decentralizaton, or the realities of human rights issues. 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, the Human Rights Commission must be set up at each prefectural and ordinance designated city level, with independent authorities for providing remedies.
  

(5)The harms of vertical sectionalism in the administration are reflected in the draft.

• According to the draft Bill, the scope of the Human Rights Commission is within the limits of the jurisdiction of the Ministry of Justice, and it cannot intervene in the affairs under the jurisdiction of other Ministries. Obvious examples are the delegation of functions providing remedies for human rights violations in labour relations to the Minister of Health, Welfare and Labour, and for those in the maritime workers' labour relations to the Minister of Land, Infrastructure and Transport. The omission of "human rights education" from the Commission's list of functions may be seen as an attempt at maintaining the division of authorities with the Ministry of Education, Culture, Sports, Science and Technology.
  
• Working within this framework of ministerial sectionalism, the Commission will not be able to provide remedies that will be satisfactory to the parties, and victims will continue to fall into the gaps between the ministerial jurisdictions, and be forced to give up. If a Human Rights Commission is to be set up as an independent administrative commission on human rights issues, its scope of functions should not be limited, and all human rights issues should primarily be submitted to the Commission. At any event, government ministers and the Commission as an independent administrative commission should not be treated on the same level, and Ministers such as that of Labour should not be given the same investigative and remedies functions as that of the Commission.
  

(6)The draft minimizes in relative terms the seriousness of human rights violations by public authority.

• The draft Bill treats human rights violations among private persons and that by public authority equally. It does not distinguish the two in its provisions for investigations or remedies, but tries to solve both through the same procedures. Treating human rights violations by public authority, which has a strong power relations aspect and high degree of intransparency, as the same as violations among private persons, is in effect minimizing in relative terms the seriousness of the former.
  
• Special procedures for investigating and providing remedies for allegations of human rights violations by administrative organs and civil servants, separate from those for violations among private persons are necessary, if victims of human rights violations by public authorities are to be given effective remedies, and such violations prevented before they occur.
  

(7)The draft Bill may threaten the freedoms of expression and the press.

• The draft Bill allows persons, who are suffering from infringement of privacy or defamation, or excessive media attention, to apply for remedies. On receiving the application, the Human Rights Commission may initiate special relief procedures including recommendations and publication of the recommendations. The standards and requirements for deciding whether an infringement of privacy or excessive media activities had occurred is unclear, an arbitrary decision by the Commission may place pressure on the mass media.
  
• Freedoms of expression and the press are import pillars supporting the democratic society, and nothing should be allowed to unduly infringe on those freedoms. The Human Rights Commission is after all an administrative organ, and a unilateral decision by the Commission, which declares a content or method of press reporting as a violation of human rights, and which recommends termination or other limits on the coverage, may be construed as suppression of speech by the state authority.
  
• To prevent such situations, human rights violations by the media should be left to voluntary measures for remedies by the media, and should be omitted from the list of violations for special procedures for remedies.
  

[2] Individual problems in the draft Bill

(1)The title reflects the vertical sectionalism of the administration

• The title, "Human Rights Protection (jinken yougo) Bill" is taken from the Civil Liberties (jinken yougo) Bureau of the Ministry of Justice, and is a blatant reminder that the administration of the Bill is under the jurisdiction of the Ministry.
  
• The substance of the draft Bill is the prohibition of violations of human rights and provisions for organization and functions of the Human Rights Commission. The title should therefore be the "Human Rights Commission Bill," or "Act for the Prohibition of Human Rights Violations and Other Measures."
  

(2)The grounds for discrimination in the prohibition should be enhanced.

• The draft Bill prohibits discrimination on grounds of "race, ethnicity, belief, sex, social status, lineage, disability, disease or sexual orientation." These alone will not be able to fully address the existing human rights issues. They are not sufficient even in terms of comparative law.
  
• Apart from those listed in the draft, following grounds for discrimination should be included: nationality, colour, sexual identity (how a person identifies his/her sex, regardless of physical or biological distinctions), marital status (married, unmarried, legal or common law, head of household or not, etc.), family composition (existence of children, living with parents, etc.) language, ethnic or national origin, age, carriers of pathogens, etc.
  

(3)The definition of sexual orientation should be made more unambiguous.

• Article 2 clarifies the definition of "human rights violation," "social status," "disabilities," "disease" and "race and other characteristics." A definition of "sexual orientation" should also be provided for. The term "sexual orientation" has never been used in Japanese legislation before, and therefore has yet no established definition. To avoid confusion from broadening or narrowing of the definition, the meaning of "sexual orientation" should be made clear.
  

(4)The requirements, number and term of office of the Commission Members should be amended.

• In the draft Bill, the Members of the Commission are to be appointed from those who are "noble of character, have a high expertise in human rights and are intellectually experienced in law or society." A further requirement of having "experience in activities concerning human rights," should be added, to actively appoint members of victims organizations and NGO/NPO's.
  
• To ensure independence of Commission Members, and to reflect the opinions of as many persons as possible in the decision-making of the Commission, the number of Members should be increased to around 7 (including the Chair), of which less than half would be part-time.
  
• To guarantee the tenure of the Members, the term of office of part-time Members should be more than 4 years.
  

(5)The requirements, appointment procedures and conditions of Human Rights Commissioners should be amended.

• According to the draft Bill, the Commission appoints the Human Rights Commissioners based on recommendations by heads of local government. The candidates are required to have "noble character, and have a high expertise in human rights" or be "among members of bar associations and other organizations working for or supporting the promotion of human rights." These requirements are considerably more simple compared with the requirements for the existing Civil Liberties Volunteers (a person of noble character and expertise, with broad knowledge of the society, persons working as social worker, educator, or for the press, with an understanding for the protection of human rights, or persons belonging to the bar association, women, labour, youth and other organizations working directly or indirectly for the purpose of human rights protection or its support). Specific examples such as "educators," "persons.. .working for the press," "persons belonging to �cwomen, labour, youth and other organizations" have been deleted. Human Rights Commissioners, who will be involved in human rights activities in local areas, should be appointed from a diverse selection of persons, and the requirements in the draft Bill should be more detailed, following the example of the law regarding Civil Liberties Volunteers. A further requirement for "experience in activities concerning human rights," should be added, to actively appoint members of victims organizations and NGO/NPO's.
  
• The draft Bill does not mention gender balance regarding Commissioners. A certain ratio based on gender should be required for the Commissioners just as for the Commission.
  
• The Commissioners in the draft Bill are expected to be honorary, unpaid volunteers. It would, however, be difficult for them to be fully active, and their motivation is bound to suffer. In order to ensure active and effective system of Human Rights Commissioners, there should be some Commissioners, who would be paid, to work as professionals in the field of human rights remedies.
  

(6)Applications by representatives or NGO/NPO's should be admitted.

• The provisions in the draft Bill seem to allow only the direct victims to apply for remedies for human rights violations.
  
• In cases of violations "behind closed doors," such as discrimination, abuse, and abuse against the elderly or children in detention facilities, or welfare and medical institutions, effective remedies cannot be expected, unless applications by persons other than direct victims are admitted. The draft should explicitly provide standing to third parties, such as representatives of victims or NGO/NPO's, which became aware of the situation, to apply for remedies.
  

(7)Cooperation with the civil society should be strengthened.

• The draft Bill requires the Human Rights Commission to "endeavour to have close collaboration with the relevant administrative bodies as well as relevant public and private organizations." Sufficient cooperative relationships, particularly with private organizations, cannot be attained through a duty to "endeavour."
  
• Establishment of a consultative body with human rights NGO/NPO's, or regular consultation meetings with these organizations should be provided for, to reflect diverse opinions on the activities of the Commission and enhance its trust.
  

(8)The policy proposal function of the Commission should be expanded.

• The Commission may submit its views to the Prime Minister, the heads of the relevant administrative organs or the Diet, according to the draft, but for the Commission to be truly independent from the government, it should be able to submit not just views, but policy proposals. At the same time, whenever the Commission submits its views or proposals, the draft should explicitly place on the addressee, be it the heads of administrative bodies or the Diet, a duty to respond, and hold them accountable.
  

(9)Adverse treatment against applicants should be explicitly prohibited.

• Article 84 of the draft Bill states, "no one shall be given adverse treatment on the ground of his or her request or application under the provisions of the present Act." The article intends to prevent persons applying for remedies being retaliated against by the perpetrators of the violations, but the provision is addressed to the victims, and is not an explicit prohibition against the perpetrators. Provisions of this kind should be worded as a direct prohibition.
  
• This article, moreover, is placed in the Miscellaneous Provisions section, and is problematic in terms of its effectiveness. In Canada, retaliatory acts against applicants for human rights remedies are in themselves acts of discrimination, and subject to regulation. Unless adverse treatments against applicants are clearly outlawed, persons in vulnerable situations, such as labourers, persons under detention, or in welfare or medical institutions, would hesitate to apply, fearing retaliation, and would be forced to give up. To avoid such occurrences, adverse treatments against applicants should be themselves subject to remedies procedures of the Commission.
  

(10) Responsibility of the central and local governments to publicize, to make the Bill widely known, should be explicitly included.

• Even when an ideal legislation is adopted, it will not be a truly effective human rights remedies system, unless the legislation, the activities of the Human Rights Commission, or the application procedures are know to the public. The effectiveness of the Bill or the new Commission depends on whether they can earn broad support from the public, who are to be the users of the system.
  
• To achieve this, the draft should include an explicit provision requiring central and local governments to publicize the Bill.