THE HUMAN RIGHTS REPORT
FOR CONVEYING THE REAL CONDITION IN JAPAN
- This is so-called counter report against the 5th Japanese government periodic report on the
International Covenant on Civil and Political Rights
March 20, 2008
JAPANESE WORKERS’ COMMITTEE FOR HUMAN RIGHTS (JWCHR)
JAPAN LAWYERS ASSOCIATION FOR FREEDOM (JLAF)
JAPAN ASSOCIATION FOR SOCIAL JUSTICE AND HUMAN RIGHTS (KYUENKAI)
LEAGUE DEMANDING STATE COMPENSATION FOR THE VICTIMS OF THE PUBLIC ORDER MAINTENANCE LAW
CONTENTS
Pages
Introduction……………………………………………………………………………...... …...... 4
1：Relations of legal weight between the Covenant and internal laws
（Article 2）……………………………………………………………………………………5
2：Concept of "public welfare" in the Japanese Constitution—Obstacles
to observing the Covenant（Article 2）………………………………………………………. 7
3：Human rights education based on the Covenant--insufficient education of the
Covenant for judges and administrators（Article 2）…………………………………….…..10
4：We call for establishment of an effective human rights redress organization
--Defects of a human rights protection bill（Article 2）………………………………………17
5：For Japan's early ratification of the First Optional Protocol to the
Covenant--establishment of the individual communication system
（Article 2）…………………………………………………………………………………….22
6：Several questions related to execution including the abolishment of death
Penalty（Article 6）………………………………………………………………………….24
7：Suppression by Public Order Maintenance Law -Torture and Thought
Suppression（Article 7 and 18）…………………………………………………………….26
8：System and Implementation, which violate the Convention against Torture
(Article 7）…………………………………………….……………………………………...29
9：The Question of Japanese Military "Comfort Women" (Article8)…………………………………..33
10：Slavery Detention and Forced Labor that cause deaths and suicides from
overwork（Article 8）………………………………………………………………………35
11：Migrant Workers Forced to Work as Slaves (Article 8）……………………………………………39
12：Pre-trial detention and treatment of detainees (Article 9、10 and 14）…………………………….42
13：Abolition of Daiyo Kangoku (Article 9）…………………………………………………………...44
14：The Right to a Fair Trial （Article 14）…………………………………………………………..47
15：Increasing Invasion of Privacy Offences by Weapons Manufacturers and
Heavy Industry Sector of Japan (Article 17)……………………………………………….50
16：Unlawful ideological investigations conducted by various government
Agencies（Article 18 and 22）…………………………………………………………….52
17：Forced worship of national flag (Hinomaru flag) and national anthem
(Kimigayo)--Violation of freedom of thoughts and conscience(Article 18)...……………...59
18：Interference and suppression of general citizens' distribution of political
Handbills（Article 19 ）……………………………………………………………………63
19：Across-the-board prohibition of political activities of national public officials
-- Extensive violation of freedom of expression（Article 19 ）…………………………….65
20：Suppression of the Right to Freedom of Expression in School Education
（Article 19）………………………………………………………………………………68
21：Textbook authorization system violates freedom of expression
- Screening of school textbooks is contrary to the Covenant ( Article 19 ）………………..71
22：Violation of the Right to Freedom of Election Campaign
（Article 19 and 25）………………………………………………………………………..74
23：Denial of the Right to Freedom of Association of Firefighting Personnel
（Article 22 ）……………………………………………………………………………..81
24：Issue of transferring employees away from their families which runs counter
to protection of family lives（Article 23 ）……………………………………………….83
25：Discrimination on the Right to Vote against People with Disability and Other Related
Issues （Article 25 and 26）…………………………………………………………………………….87
26：Discrimination Against Temporary Employees, Which Denies Even
Character（Article 2 and 26 ）……………………………………………………………90
Introduction ofNGOs…………………………………………………………………………....93
Introduction
We sincerely express our respect for a consistent endeavor which the Committee has been implementing the International Covenant on Civil and Political Rights (the Covenant).
The Japanese government, in last December, has submitted the 5th State periodic report to the Covenant with a drastic delay for the period of submission. As the review of the 4th State periodic report was held in October 1998, it will have passed ten years at the time when the review of 5th State report being held in October 2008.
Reflecting on the situation of human rights in Japan, this decade can be considered as the years that, the Government has looked down the Covenant and terribly neglecting to make efforts toward the improvement of human rights on the one hand, and it should be remembered as the years that, lawyers and NGOs have made progress for the domestic spread and establishment of the Covenant on the other. Under the circumstances, no one can deny that, in terms of international standard, human rights in Japan shows more disadvantageous situation.
As a result of having reviewed this 5th report of Japan, we actually felt the necessity, from a position of citizen, to communicate the real situation of human rights. Regrettably, the State report has not conveyed the real appearance which is concerned with human rights.
We, as mentioned at the end of this report, are all members of the organizations which struggle, through concrete incidents, for the realization of peace, human rights and particularly civic and political rights, and trying to settle the concerning questions as social problems by means of the movement.
This report as a proposal for the improvement of human rights, being prepared through the movement of struggles, has been jointly raised by these four organizations, in corresponding to the State report.
We have generally described it in accordance with the articles of the Covenant.
We strongly request that the Committee will not fail to adopt the provisions of our report as many as possible in the List of Issues.
1. Relations of legal weight between the Covenant and internal laws: (Article 2)
A. Summary and proposals
1. Japan must make it clear that the rights in the Covent should be given priority over the internal laws when there are contradictions between them.
2. Japan should revise Civil Procedure Code and Criminal Procedure Code so that violations of the rights in the Covenant can be used for grounds for appeal.
B. Concerns and recommendations of the Committee
The Committee's 1993 concluding observations on the third report of the Japanese government pointed out, in its Paragraph 8, that "The Committee believes that it is not clear that the Covenant would prevail the case of conflict with domestic legislation and that its terms are not fully subsumed in the Constitution". Also in the 1998 concluding observation on the fourth report of the Japanese government, the Committee expressed "its concern about the restrictions which can be placed on the rights guaranteed in the Covenant on the grounds of 'public welfare,'" (Paragraph 8) and it "recommends that the State party continue reviewing its laws, and making appropriate amendments, so as to bring its legislation into full conformity with the Covenant." (Paragraph 33)
The repeated expression of concerns and recommendations by the Committee clearly shows that it is worried that the rights in the Covenant are not fully guaranteed by Japanese internal laws.
C. The government's response and the statement in the fifth report of the Japanese government
On the relations between the Covenant and Japanese internal laws including the Japanese Constitution, the fifth report of the Japanese government only states that "as stated in the Fourth Periodic Report," giving four Supreme Court precedents in which lawsuits were filed over human right violations citing the Covenant (Supreme Court Petty Bench Judgment of August 29, 1997, Supreme Court Grand Bench Decision of December 1, 1998, Supreme Court Petty Bench Judgment of June 13, 2000 and Supreme Court Petty Bench Judgment of September 25, 2001), and only stated that "In no case has the Supreme Court found laws, rules or administrative dispositions to be in violation of the provisions of the Covenant."
However, those findings were, as discussed later, precedents which did not admit the violation of the Covenant using the logic that since the questioned restrictions on human rights were not violation of the Japanese Constitution, they were therefore not against the Covenant. The explanation by the Japanese government does not reply properly to the concerns of the Committee.
D. Opinions
1. Regarding the relations between the Covenant and internal laws, the question used to be supremacy between them; today on the ground of Paragraph 2, Article 98 of the Japanese Constitution, a commonly held view is that while the Covenant, as an international treaty, is lower in its legal force than the Japanese Constitution, it is upper than internal laws. The court takes the similar position. Also, on the question of the Covenant being so-called "self-executing," the government maintains the position that it decides whether it is self-executing or not on individual provisions. The court in many instances interprets that the Covenant is self-executing. However, such an interpretation has not yet been established in the Supreme Court.
2. Relations between the Japanese Constitution and the restrictions on the rights in the Covenant
The above commonly held view regarding the supremacy between the Covenant and internal laws can be acceptable. However, what is important here is, when the court is required to redress human rights violation by applying the Covenant, if the court passes a decision to clearly guarantee the rights in the Covenant. when the rights in the Covenant are guaranteed also by the Japanese Constitution, in many cases the Japanese court first interprets and applies the Constitution to make a conclusion that the provision in question of restricting the rights "is not against the Constitution, therefore it is not against the Covenant." For example, the above-mentioned Supreme Court decisions given by the government in its fifth report are all representative court decisions which claim that no violation of the Covenant was found on the ground that "it is not against the Constitution, therefore it is not against the Covenant." In other words, there is a strong tendency of easily allowing restrictions on the rights in the Covenant without making interpretations or applications of the Covenant on its own. Therefore there is almost no case for Japanese people to have their violated human rights in the Covenant redressed by the Covenant. That the Committee in its concluding observations on the third report of the Japanese government (Paragraph 8) expresses its concern, saying, that the provisions of the Covenant are "not fully subsumed in the Constitution", is quite accurate.
In interpreting and applying the Covenant, it is not allowed to restrict the rights in the Covenant for the reasons of internal laws, the reasons the Covenant does not approve, and this is also the case with the Japanese Constitution. Therefore the Japanese government should make it clear that the rights in the Covenant are given priority over the internal laws, and are not restricted for the reasons of internal laws.
3. On limitation of grounds for appeal
Paragraph 3, Article 2 of the Covenant obliges the state parties to ensure that any person claiming a remedy for violation of his/her rights in the Covenant shall have his/her right thereto determined by competent judicial authorities and to develop the possibilities of judicial remedy.
Nevertheless, despite the fact that the ultimate authority in Japan that guarantees the rights in the Covenant is court, the grounds for appeal to the Supreme Court in both civil and criminal lawsuits are in principle limited only to violation of the Constitution, and remedy claims for violations of Covenant are not accepted as legitimate grounds for appeal. That the Supreme Court, despite of it being Japan's ultimate organ for a human rights remedy, does not take up violations of the Covenant for consideration means there is no institutional provision for guaranteeing human rights, which obviously constitutes violation of the Covenant.
Japan should immediately make the necessary legal revisions so that the Supreme Court accepts the violation of the Covenant as the grounds for appeal in both civil and criminal lawsuits.
2. Concept of "public welfare" in the Japanese Constitution--Obstacles to observing the Covenant: (Article 2)
A. Summary and proposals
The Japanese government, despite the reiterated concerns and strong recommendations made by the previous Committee, still puts comprehensive restrictions on the rights guaranteed in the Covenant on the grounds of "public welfare," and allows restrictions exceeding those permissible under the Covenant. This is against Article 2 and 5 of the Covenant.
The Japanese government should immediately revise domestic laws which unjustifiably restrict the human rights guaranteed in the Covenant, and the Japanese court should interpret and apply the domestic laws in conformity with the Covenant.
B. Concerns and recommendations of the Committee
In the 1998 concluding observations the Committee "reiterates its concern about the restrictions which can be placed on the rights guaranteed in the Covenant on the grounds of "public welfare". Following upon its previous observations, the Committee once again strongly recommends to the State party to bring its internal law into conformity with the Covenant."
Here the Committee took one step further from "expression of concerns," to "strongly recommend" an improvement, because the Japanese government has neglected to make the required improvement despite the Committee's concluding observation on the Japanese government's third report, which said that "Furthermore, it is also not clear whether the "public welfare" limitation of articles 12 and 13 of the Constitution would be applied in a particular situation in conformity with the covenant." and "The Committee regrets that there appears to be a restrictive approach in certain laws and decisions as to the respect of the right to freedom of expression."
C. The government's response and the statement in the fifth report of the Japanese government
The Japanese government in its fifth report only refers to the concept of "public welfare" in the Constitution stating that "as stated in the Fourth Periodic Report and Paragraphs 64 to 68 of the Core Document," and its supplementary explanation is completely the same in contents as in the fourth report. There is no information given of improvements or advancement in response to the recommendations issued by the previous Committee.
D. Opinions
1. The Japanese government in the fifth reports claims that, "The concept of 'public welfare' has been thus defined by court precedents based on the inherent nature of each right, and the restrictions on human rights under the Constitution closely resemble the reasons for restrictions on human rights in the Covenant. Therefore, there is no room for arbitrary use of the concept of 'public welfare' by the state.
However, the reality of court in Japan is different from this.
2. In the case where the human rights guaranteed in the Covenant are also guaranteed by the Japanese Constitution, there are many specific cases in which court decisions were made based on the logic that the need for restrictions on human rights on the ground of the domestic law concept of "public welfare" was found not unconstitutional and therefore not against the Covenant, without abiding by the Principle of Proportionality. The Supreme Court approves this position.
In other words, the Japanese court, in judging the need for restrictions on human rights guaranteed in the Covenant, does not respect interpretations and logics defined in General Comment and Views on individual communications issued by the Committee. Instead it considers based on domestic law concepts.
3. The Committee believes that the restrictions on the rights guaranteed in the Covenant can be placed only within the range of restriction purposes and the necessity stipulated by each relevant articles of the Covenant. It takes the position that it is not allowed to place restrictions on the rights guaranteed in the Covenant for any other reasons or by interpretations and theories of internal laws.
Accordingly, when the rights guaranteed in the Covenant are also guaranteed by the Japanese Constitution, it is not allowed to put restrictions on the rights on the grounds of "public welfare," and it should be understood that restrictions are only permissible within the range of purposes and necessity of restrictions specified in the Covenant.
4. Because the argument of "public welfare" of the Japanese Constitution is based on the "rational relations between restriction purposes and means" and "balancing of interests," the reasoning is prone to be dependent on the values of those individuals who pass judgment, and lacks definiteness. Accordingly it often has a risk of permitting restrictions by giving priority to national interest over individual human rights. This trend is clearly shown in the court precedents of the school textbook screening case where freedom of expression is questioned, or the issue of freedom of election campaign activities, etc, as discussed later.
5. In contrary to this, the Committee, when judging the necessity of restrictions placed on rights in the Covenant, bases itself on the "proportional principle," and requires concrete proof of the existence of harm or threats for which restrictions on rights are necessary to objectively consider if such threats and restrictions on rights are in proportion. Therefore its examination on restrictions is strict, and we conclude that guarantee of human rights by the Covenant is superior in many cases to guarantee of human rights in the Japanese Constitution as interpreted by the Supreme Court.
6. The States Parties to the present Covenant have obligation to respect and ensure human rights in the Covenant. This obligation is legal obligation under the Covenant and binds the states parties as a whole including judicial departments. Also, they are required to unconditionally guarantee the rights in the Covenant with immediate results. The failure of this obligation cannot be justified by domestic political, social, cultural or economical reasons.
The Japanese government should follow the recommendations of the Committee and immediately revise internal laws which unjustifiably restrict rights in the Covenant and the court should interpret and apply internal laws so as to be in conformity with the Covenant.
3. Human rights education based on the Covenant--insufficient education of the Covenant for judges and administrators:(Article 2)
A. Summary and proposals
1. The concluding observations (recommendations) of the Committee and response of the Japanese government report
The concluding observations of the Committee on the report of the Japanese government in the 64th session strongly recommended in its Paragraph 32 that education of the human rights in the Covenant should be given to judges and others. The present report of the Japanese government in response to this recommendation is given in "I Part 1. General Comments, 4 Human rights education, encouragement, publicity" and its core details are stated in "(4) Human Rights Education for Judges, Public Prosecutors, and Administrators," between Paragraphs 23-31.