Alternative Report to the Second Report

Alternative Report to the Second Report

of the Japanese Government

on the Convention on the Rights of the Child

May 2003

Japan Federation of Bar Associations

I. GENERAL MEASURES OF IMPLEMENTATION

1. The reservation to Article 37 (c) and the declaration of Article 9, Paragraph 1 and Article 10, Paragraph 1 should be withdrawn.

2. Additional amendment should be made from the viewpoint of developing and expanding the rights of the child in line with the Convention on the Rights of the Child concerning the Law for Punishing Acts Related to Child Prostitution and Child Pornography, and the Child Abuse Prevention Law, which were enacted after the First Japanese Report was made, and the Child Welfare Law, Juvenile Law and School Education Law, to which amendments were made.

3. The Government should approve that the Convention on the Rights of the Child has legal effect domestically, and ensure that it has priority over domestic legislation, and ensure that concrete measures are taken in order that these will be used effectively in court decisions.

4. A fundamental reform should be made to the system of the Civil Liberties Commissioners for the Rights of the Child such as: securing independence and enforcement capabilities of investigative authorities, financial improvement, etc. or consideration should be made on the establishment of a human rights remedial organ which is independent and has full authority, and takes into account the peculiarities of the rights of the child.

5. A policy coordination organ that implements comprehensive and unified measures concerning the rights of the child should be established.

6. Budget allocation from the perspective of the “best interest of the child” should be made at both central government and local authority level.

7. Education concerning the Convention on the Rights of the Child should be conducted for civil servants, etc. concerning bringing more benefits to children and it should be positively positioned in the Legal Research and Training Institute and the curriculum thereof should be designed so that all can learn it in detail.

Introduction

1. The Japanese Government prepared and submitted the Second Report under Article 44, Paragraph 1 of the United Nations Committee on the Rights of the Child, in November 2001.

Before considering the specific issues in the Second Report we would like to highlight three problems in this report. The first problem is that the concluding observations of the Committee on the Rights of the Child were disregarded. The second problem concerns the way the Report was prepared. The third one involves the insufficient involvement of NGO while the Report was under preparation.

2. Firstly, the ignoring of the concluding observations.

Based on the consideration of Japan’s First Report made in May 1998, the Committee on the Rights of the Child adopted its concluding observations in June of the same year (hereafter called the “Concluding Observations”). Attention was kept on those measures the Japanese Government would take to improve and develop the conditions of the rights of the child. The Government was requested to mention in the Second Report how the Concluding Observations were considered, what measures were taken based on them, and what difficulties were met in achieving these measures, and so forth (para. 1, General Guidelines concerning the Periodic Report, 20 November 1996).

However, the Japanese Government completely disregarded these Concluding Observations. Only in six passages of the Report did the Government touch on these observations, and none of these indicated that any positive measures were taken based on the observations or in response to their recommendations. Judging from the fact that the Government did not even refer to the point in which legal amendment was demanded, their attitude toward the observations is obvious.

From the beginning, in terms of the Concluding Observations, the Committee requested that these observations, as well as the Initial Report and the Answers to the Questions from the Committee, be made available to a wide range of people, and that the following requests that were specifically referred to in the guidelines, should be met: “The measures adopted or foreseen to ensure wide dissemination and consideration of the summary records and the Concluding Observations adopted by the Committee in relation to the State party’s report, including any parliamentary hearing or media coverage. Please indicate the events undertaken to publicize the Concluding Observations and summary records of the previous report, including the number of meetings (such as parliamentary or governmental conferences, workshops, seminars) held, the number of programmes broadcast on radio or television, the number of publications issued explaining the Concluding Observations and summary records, and the number of non-governmental organizations which participated in such events during the reporting period.” However, the only public relations measure taken by the Japanese Government concerning the Concluding Observations was placement on the web pages of the Foreign Ministry (para.42). No other PR activities or events, intended to keep the people fully informed, were implemented.

3. Secondly, Japan’s Second Report, was prepared in a way similar to reports from various government ministries and agencies which are merely put together, thus obviously lacking a united viewpoint.

It is said that, in preparing this Report, 14 ministries and agencies participated, including the Foreign Ministry (para.57). The reports were prepared individually by the respective ministries and agencies, and thus did not present a united viewpoint. For example, in the item dealing with measures to counter bullying at school, only those measures taken by the police were mentioned (para.249). The measures taken by the Ministry of Education, Culture, Sports, Science and Technology, were described in the item dealing with School non-attendance and withdrawal etc (para263). Thus, a unified description was not made on this single issue.

However, in fact, this is not only a problem concerning the descriptive manner used in the Report but symbolizes the current state that no policy-coordinating organization exists in the Government and ministries and agencies deal with this issue through a vertical administrative system.

4. Thirdly, NGOs were not sufficiently involved during the Report preparation time.

At the time that Japan’s Second Report was being prepared, Japanese NGOs as well as the Japan Federation of Bar Associations (JFBA) made a request to the Government that an exchange of opinion meeting be held as the case demanded, at an early stage, and that the manuscript of the Report be disclosed before completion. However, this meeting was only held twice, once on April 9, the other on May 14, 2001, and the Report was not disclosed before it was completed.

A. Reservation and Declaration

5. In their Concluding Observations, the Committee encourages the Japanese Government to consider reviewing its reservation to Article 37 (c) and its declarations to Paragraph 1 of Article 9 and Paragraph 1 of Article 10 of the Convention with a view to withdrawing them. However, in this Report, the Government stated that they have no plans to withdraw their reservation and declaration based on the Initial Report and “Answer 1” (para.2), indicating that sincere consideration of the issues had not been made at all.

It has been already mentioned in JFBA’s report (paras.16 to 20 of the first report) that their reservation and declaration should be withdrawn, particularly with regard to reservations regarding Article 37 (c), we are obliged to say that they intend to deny the important principle of separation of Juveniles deprived of liberty from adults, and avoid the possibility that a problematic detention of juveniles in a “daiyo-kangoku” (substitute prison) may violate the Convention. For these reasons, the reservation should be withdrawn immediately.

B. Enactment of New Laws and Amendments of Existing Legislation

6.1. As mentioned in Japan’s Report, the Child Welfare Law was amended in June 1997, and then in May 1995, the “Law for Punishing Acts Related to Child Prostitution and Child Pornography” (the Child Prostitution and Child Pornography Prevention Law) was enacted and put into effect in November of the same year, and the “Law Concerning the Prevention of Child Abuse” (the Child Abuse Prevention Law) was enacted in May 2000 and put into force in November of the same year. In addition, the Juvenile Law was amended in December 2000 and put into force in April 2001, and the School Education Law was amended in July 2001.

2. Evaluation of the amendment of the Child Welfare Law

7. At the amendment of the Child Welfare Law, JFBA made a suggestion that the “best interest of the child” should be expressly stated in terms of the Convention on the Rights of the Child, but this was not adopted.

We made an assertion that the “prohibition of corporal punishment by personnel at facilities involved in child welfare” should be legally specified, this was also not adopted. Instead, it was specified in the “Minimum Standards for Child Welfare Facilities” provided by the Government.

We consider it necessary to specify the “best interest of the child” and the prohibition of corporal punishment by personnel at child welfare facilities in the Child Welfare Law.

3. Evaluation of the Child Prostitution and Child Pornography Prevention Law

8. The enactment of the Child Prostitution and Child Pornography Prevention Law was evaluated in the sense that certain measures were specified that informed people of the criminality of child prostitution and child pornography. However, in order to check whether effective control is implemented based in this law, accurate verification will be necessary. There are problems in that provisions are still abstract in terms of considering the child victim during the investigation and at court, the mental and physical care for the child, as well as the fact that concrete measures and systems have not been implemented. Also, international collaboration is provided for in the law but as some point out, it has not necessarily been implemented in an effective way. We consider that concrete measures will be necessary for more effective implementation (for details, refer to VIII B).

4. Evaluation of theChild Abuse Prevention Law

9. The Child Abuse Prevention Law is evaluated in the sense that child abuse was defined and prohibited, responsibilities of the central government and local authorities were provided, obligatory notification of everyone, particularly professionals such as doctors, teachers, public health nurses, attorneys, etc. who are more likely to discover child abuse, was confirmed, all aimed at the relief of the abused child, and visits and communication by the parents were restricted, thus provisions, which virtually restricted the execution of parental rights, were set forth, though only to a certain extent.

However, the increase in the number of Child Guidance Center is not promoted, and only half of all child welfare caseworkers are professionals. Thus, there are many problems in respect of securing people to implement the Child Abuse Prevention Law, and revision is still needed (for details, refer to VC).

5. Evaluation of the Juvenile Law

10. The “amended” Juvenile Law includes the following six main amendments: (1) The age at which criminal punishment is allowed is lowered from “16 years or older” to “14 years or older”; (2) In principle, a juvenile who has committed intentional crime causing death of a victim is sent to the public prosecutors; (3) The maximum period for protective detention can be extended from “four weeks” to “eight weeks”; (4) The prosecutor’s presence in Family Court hearing is accepted if it is necessary for fact finding for grave crimes leading to two years or more in prison. In such cases where there is no private attendant available, an attendant will be assigned by the court); (5) A collegiate court system presided by three judges is introduced, and (6) Certain consideration is given to the victim (e.g. viewing and copying records, hearing victim’s opinion, being notified of the court’s decision).

11. In their Concluding Observations, the CRC pointed out the necessity of reviewing the judicial system for juveniles in accordance with the principles and provisions of the United Nations standards. However, the contents of the revision are not in line with their recommendations thus it is necessary for us to state that they go against the United Nations standards.

Specifically, “criminalization” and “get-tough policy” (referred to in (1) and (2) above) go against the respect for the juvenile’s right of rehabilitation to society emphasized by Article 40, Paragraph 1 of the Convention on the Rights of the Child, and the Ryad Guidelines, as well as against Article 40, Paragraph 3 “the establishment of specifically applicable laws, procedures, authorities and institutions”. Also, the extension of protective detention (referred to in (3) above) goes against the provision of Article 37 (b) that stipulates that arrest, detention or imprisonment shall only be used as a measure of last resort and for the shortest appropriate period of time. The involvement of the prosecutor in judicial proceedings (referred to in (4) above) allows for juveniles to be treated even more unfavorably than adults. Because the hearsay rule is excluded from judicial proceeding for juveniles and all the evidence gathered by police and prosecutor are sent to the family court judge before hearing, the judge tends to start the proceedings having impression of the juvenile “guilty.” Then if the juvenile denies his charge, the prosecutor tries to prove it guilty thoroughly. This goes against Article 40, Paragraph (b) (iii) of the Convention, which provides for securing the right to a fair hearing by an impartial authority.

Thus, the “revised” Juvenile Law has various points that run counter to United Nations rules. In addition, the “toughening of penalties” against juveniles can be seen being practically applied after the “revised” law was put into effect. For details, refer to VIII A.

C. Status of the Convention in terms of Domestic Laws

12.1. In their Concluding Observations, the CRC expressed their concern that, in practice, courts in their rulings, do not usually directly apply international human rights treaties in general and the Convention on the Rights of the Child in particular, and have requested detailed information on cases where the Convention on the Rights of the Child and other human rights treaties have been invoked before domestic courts (7, 29).

Only one case was cited in the Government’s Report, and indeed, there was no judicial precedent found to date that the Convention on the Rights of the Child has been applied and that judgment declares the violation of this Convention. It is deemed that, from the very first, the Convention is not in the position to have precedence over domestic legislation.

13.2. The case that can be listed as a judicial precedent, in which the Convention on the Rights of the Child was positively cited during the explanation and used as the reason of the decision, is only one case from Nagoya High Court (June 29, 2000, Hanrei Jiho, Vol.1736, Page 35).

This is the case of a juvenile who, accused of murder, etc., filed a claim for damages against a publishing company which used an assumed name for the juvenile in an article in its magazine, alleging that, since the assumed name made it easy to determine the juvenile’s real name, this act violated Article 61 of the Juvenile Law which prohibits the publication of such articles, etc that make people presume the juvenile’s identity. The court decision in this case accepted this compensation claim against the publishing company on the grounds that, based on the provisions of Articles 3, 5, and 6, Paragraphs 1 and 1(a) of Article 40, and Article 14, Paragraph 4 of the International Covenant on Civil and Political Rights, the Beijing Rules, etc., that while reflecting that the child has the right to honor and privacy derived from Article 13 of the Constitution, it is appropriately interpreted that Article 61 of the Juvenile Law aims to protect the fundamental human rights under which juveniles in the process of their growth and development should be treated with more consideration for sound development, as well as their right to honor and privacy, by way of controlling media reports, and to that extent, the “freedom of expression” of the mass media can be restricted.

14.3. Although discrimination of a child born out of wedlock was the point intensively argued as violating the Convention, during the first consideration made by the CRC, the purport of the Convention on the Rights of the Child has been understood along quite passive lines in the courts, there are no judgments which decide the discrimination is against the Convention on the Rights of the Child.

(1) Osaka High Court judgment (September 25, 1998, HanreiTimes, Vol. 992, Page 103)

15. Article 2, no. 1 of the Nationality Law provides that a child acquires Japanese nationality when his/her father or mother is a Japanese national “at the time of his/her birth”. However, in the case of a child born out of wedlock, if the child is acknowledged after birth, he/she is not granted Japanese nationality on the grounds that the legal father cannot be deemed to be Japanese “at the time of his/her birth.” In this situation, a lawsuit was filed to seek confirmation of Japanese citizenship, alleging that such treatment can be regarded as discrimination based on “social position” under Article 14 of the Constitution, and that it also violates Article 24 of the International Covenant on Civil and Political Rights, as well as Articles 2 and 7 of the Convention on the Rights of the Child. The decision in the first instance, which had already been made at Osaka District Court on June 28, 1996, before the consideration of the First Report submitted by the Japanese Government, confirmed discriminative treatment against the child born out of wedlock, regarding that this way of different treatment had reasonable grounds. As for Article 24 of the International Covenant on Civil and Political Rights, and Articles 2 and 7 of the Convention on the Rights of the Child, it only held that “each of these is aimed at getting rid of stateless children, and is not considered as protecting the interest apart from the one specified in Article 14 of the Constitution”.