In Regard to the Fifth Periodic Report of the Japanese Government

NGO Information

in Regard to the Fifth Periodic Report of the Japanese Government

on the International Covenant on Civil and Political Rights (ICCPR)

submitted to: Human Rights Committee

February 28, 2008

prepared by:

Buraku Liberation and Human Rights Research Institute

1-6-12 Kuboyoshi, Naniwa-ku, Osaka, Japan

Contents
Identifying Problems in the Fifth Periodic Report of the Government page 2-4
Problems from the Viewpoint of Buraku Discrimination page 5-7
Problems in View of the Realities for Korean Residents in Japan page 8-10
Problems from the Perspective of New Comers and Migrant Workers page 11-14
Article 27 of the ICCPR and Japan's Ainu Policy page 15-17
Issues Arising from the Historical and Current Perspectives of Okinawa page 18-20

Identifying Problems

in the Fifth Periodic Report of the Government

Masanao Murakami

Professor, Osaka School of International Public Policy

1. Not Responding Directly to the Concluding Observations

In some sections, on issues regarding the interpretation of the Covenant in particular, the fifth periodic report (hereinafter, the Report) does not seem to be responding directly to the Concluding Observations.

(1) On the Committee’s comments drawing attention to the interpretation that Article 27 may not be restricted to citizens[1], the Report only explains about the situation regarding Ainu people in regard to this Article, giving the impression that the Government is implicitly refusing the Committee’s interpretation.

(2) On the Committee’s indication that the phrase “one’s own country” in Article 12 of the Covenant is not synonymous with “the country of one’s own nationality,” but also includes “foreigners who are second- or third-generation permanent resident in Japan and whose life activities are based in Japan“ and “permanent residents like persons of Korean origin born in Japan[2].” the Report merely mentions the “special cases” for special permanent residents, and nothing on the relevance of the Committee’s interpretation.

(3) On the issue of the limitations on the scope of Habeas Corpus Law set by rule 4 of the Habeas Corpus Rules, the Committee indicated an incompatibility with Article 9 of the Covenant, but the Report just responds that the Observations were distributed to the Supreme Court, where, as the Government understands, they are being carefully studied[3]. It is questionable, whether the response, which seems to be equivalent of having “dumped” the issue onto the Supreme Court, would satisfy the Committee.

2. Problems Regarding Persuasiveness

(1) On the Committee’s questioning the application of the re-entry permit system to permanent residents, the Report just repeats the explanation of the system.

(2) On the treatment of detainees, the Committee expressed its concern on the “lack of a credible system for investigating complaints by prisoners,[4]” yet the Report introduces the “opinion boxes placed in the immigration detention facilities” as measures taken in response to this recommendation[5]. These do not seem to be the kind of “systems” that would satisfy the Committee’s concerns, and it raises questions on whether it is convincing.

If the draft Human Rights Protection Bill, which provided for a creation of a Human Rights Commission had been adopted, it is likely that measures corresponding to the Committee recommendations would have been in place, but it would have raised further questions of whether the draft Bill would produce an “independent mechanism[6]” or “independent body or authority[7]” called for by the Committee, mainly because of its expected position of being placed under the Ministry of Justice.

3. Internationally Unacceptable Interpretations of the Covenant

The Report includes some interpretations of the Covenant, which are not internationally accepted.

(1) The Report explains under “Detention in the Immigration Facilities” in regard to Article 9, that deportation procedures do not fall under the Article, because they are not criminal procedures[8]. This interpretation differs from the one indicated by the Committee, which has interpreted the Article as being applicable to all persons deprived of their liberty, except for those provisions, which by their wording, is applicable only to those who are subject to criminal procedures[9]. The Report also seems to be contradicting itself, as it provides considerable explanation on such issues such as “Medical Treatment under the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases under the Condition of Insanity,” and other laws also under Article 9[10]. Deprivation of liberty under these laws is a deprivation by administrative authority as in the deportation procedure.

4. Reporting on Systems and Institutions

The Report contains a considerable amount of explanations on the systems and institutions and in many cases, none on the operation of the systems, or the assessment of their effectiveness.

(1) In regard to daiyo kangoku (substitute prisons), it explains the system, and that the detainees are treated in accordance with the international rules and guidelines[11]. It also states that there is a strict separation between the police section in charge of the treatment of detainees and the section in charge of criminal investigations[12]. These are all explanations about the system and the principles.

5. Giving Wrong Impressions

(1) The explanation regarding the Buraku discrimination is not wrong, as far as it is an explanation of the chronology of events. But the way it is written, gives the impression that there was no longer any need for special policies, and that the discrimination against the Buraku people has been nearly eliminated. The fact that the discrimination still exists and that it is a serious problem is well known.

A problem, not in the reporting, but in the human rights situation in regard to the Covenant is that for many of the concerns, indications of violations of the Covenant and recommendations for improvement raised in the Concluding Observations in 1998, or in 1993, no measures have been taken, such as on issues of discrimination against children born out of wedlock, Korean residents, Ainu people and Buraku people, the duty of foreign residents to carry certificates of registration at all times, issues related to the death-penalty, treatment of detainees and the system of daiyo kangoku (substitute prisons).

* * *

Problems in the Fifth Periodic Report from the Viewpoint of

the Elimination of Buraku Discrimination

Kenzo Tomonaga

Director, Buraku Liberation and Human Rights Research Institute

Recommendations Made by the HRC on the Fourth Periodic Report, and Responses of the Government in the Fifth Periodic Report

On November 19, 1998, the Human Rights Committee made the following observations in regard to Buraku problem**1 after it considered the Fourth Periodic Report on ICCPR submitted by the Japanese Government:

15. With regard to the Dowa problem, the Committee acknowledges the acceptance by the State party of the fact that discrimination persists vis-a-vis members of the Buraku minority with regard to education, income and the system of effective remedies. The Committee recommends that the State party take measures to put an end to such discrimination.

Does the Fifth Periodic Report of the Japanese Government base on the above recommendation? In short, we are obliged to conclude that the fifth periodic report does not base on the recommendations.

No Statements of the Reality of Discrimination in the Employment and Education

The government takes the stand regarding Buraku problem in such a way that as the measures taken by the state and local public authorities have contributed to a fundamental solution of Buraku problem, the special measures under the "Law on Special Measures" was terminated. It is clearly indicated in the statements made in the fifth report: “As a result of the efforts of the national government and local authorities over many years, large improvements, including those in the living environment, have been realized, rectifying the gap that had existed in various aspects, and the conditions in Dowa districts have largely improved,” and “Taking into account these circumstances, with the expiration of the Law regarding the Special Fiscal Measures of the Government for Regional Improvement Projects on March 31, 2002, it was decided to end special polices to resolve the Dowa problem.”

It is true that the habitat of Buraku areas has improved through special measures under the “Law on Special Measures” that was effective for 33 consecutive years from 1969 until the end of March 2002. However, in the fields of employment and education that are key to solution of Buraku problem, to date clear gaps have still existed. It is articulated in the opinions presented by the Council for Regional Improvement Measures in May 1996. The opinions were made based on the 1993 “survey to find the actual conditions of life in Dowa districts” conducted by the government. In the opinions, the Council pointed out: 1) The percentage of progression to high schools among students of Dowa districts is still lower than the national average by several points; 2) The percentage of those high school students who completed the three-year-course among Buraku students is apparently lower than the national average; and 3) the employment among residents of Dowa districts is rather unstable in comparison with the national average, and the annual incomes of households in Dowa districts concentrate in the lower levels.

Since 1993, the Government has not Conducted a National Survey to Find the Actual Conditions of Dowa Districts

The government has not made any national survey to find the actual conditions of Dowa districts since 1993 when it did so last time. At the local governmental level, the survey has been done in different prefectures. These surveys at the local level reveal the still-difficult conditions in the employment and education of Buraku. For example, Osaka Prefecture conducted a survey in seeking for solutions of Dowa problem in 2000, and the Osaka Prefecture's Dowa Measures Council made the report based on outcomes of the survey in 2001. The report discussed about the actual conditions of Buraku districts located in Osaka Prefecture by stating: 1) Drop-out from high school is relatively high among Buraku students; 2) An apparent gap still exists in regard to progression to colleges between Buraku students and non Buraku students; 3) Ownership of computers and use of the Internet among Buraku residents remain a half of those of the national average; and 4) Unemployment rates among younger generation and those in their 40's in Buraku districts double the averages of Osaka Prefecture.

Still-serious Situation of Marriage Discrimination

The fifth periodic report states that marriage between a Buraku person and a non-Buraku person has become the majority, suggesting the solution of marriage discrimination by stating, "Marriages between Dowa district residents and non-Dowa district residents make up the majority of marriages among young people, so it seems that discriminatory attitudes are also steadily disappearing."

It is true that marriages between Buraku persons and non-Buraku persons have been on rise, thanks to the efforts of Buraku liberation movement and fruits of educational activities. However, it does not mean that discrimination at the time of marriage has been eliminated. It often occurs that engagement is broken off under the action of Buraku discrimination. Even if couples eventually marry, it occasionally happens that relatives of the non-Buraku marital party do not attend a wedding ceremony, and worse, they disconnect association with the couple. The fifth periodic report does not refer to these problems at all.

Personal Background Investigation by Private Investigative Agencies not Eradicated

In regard to the respect of privacy under Article 17, the fifth periodic report describes personal background investigations conducted by credit agencies as follows:

296: Since there is a significant risk that illegal background checks carried out by credit agencies would encourage discrimination with respect to marriage, dating and gaining employment, in cases where a human rights infringement has been confirmed the human rights organs under the MOJ carry out an appropriate response based on the facts of the case. For example, they instruct and urge the perpetrator and the persons concerned to have respect for human rights.

The above statement does not touch upon the facts that illegal acquisitions of family register frequently occurs, and that new versions of Buraku List have been discovered, especially in the digital format, since the end of 2005. To address these serious problems, only "instructions and education for those involved" is totally insufficient, and drastic measures such as legal restrictions or drastic changes to related laws are needed.

Frequent Occurrence of Discriminatory Propaganda or Incitement on the Internet

The fifth periodic report discusses about discriminatory propaganda and incitement on the Internet in relation to Article 20: Prohibition of Propaganda for War. In recent years, discriminatory graffiti and anonymous letters with the intention of Buraku discrimination have been on the rise. At the same time, discriminatory propaganda and incitement to Buraku discrimination on the Internet have been on the rise to such an extent that it cannot be overlooked any more. In this regard, the fifth periodic report sheds light on the fact that Japan does not have any law that prohibits “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Even perpetrators who sent discriminatory letters or disseminated discriminatory information on the Internet are arrested and sanctioned, they are charged under the name of intimidation or defamation. As a result of absence of specific law, it is hard for a conventional wisdom to develop among people that these acts constitute intolerable crimes. Japanese Government has reserved Article 4 (a) and (b) of the ICERD at the time of its ratification. Faced by the present conditions including malicious graffiti or letters in full of discrimination against Buraku and the increase of discriminatory propaganda or incitement on the Internet, the government is indeed urged to cancel the reservation and develop national laws that do not condone and do punish these acts.