On the Fifth Periodic Report of the Japanese Government

Masanao Murakami

Professor, Osaka School of International Public Policy

Summary of the Concluding Observations to the Fourth Periodic Report

The contents of the Concluding Observations of 1998 can be divided roughly into three categories. The first is on the general matters that form the preconditions, rather than the actual implementations of the provisions under the Covenant. These include the issue of restrictions on the rights provided in the Covenant, of remedies such as those through the creation of the national human rights institution, of human rights education, publication and dissemination of the Government Report and the views as well as interpretation of the Human Rights Committee and of dialogue among relevant parties.

The second category covers identification of discrimination and lack of protection of vulnerable people. These include concerns and indication of violation of the Covenant regarding the existence of discrimination against children born out of wedlock, resident Korean minority, the indigenous people of Ainu, women and foreigners. If the indication of the lack of protection for women and children, as well as the violation of the Covenant regarding the application of the re-entry permit system for permanent residents were included in this category, this would comprise the major part of the Observations.

The third includes indication of problems in the protection of people in detention (including the accused and defendants in criminal cases, prisoners including those on death-row, and people in immigration facilities) and defendants in criminal cases, namely those who are deprived of their liberty by or those facing public authority.

Some of the issues indicated by the Committee, such as the issue of the restrictions on the rights and the concept of “reasonable discrimination” raise questions of appropriateness. But those in the second and third categories directly involving the implementation of the Covenant can be considered as more or less appropriate. To put it very simply, there are serious problems in areas, where the protection of human rights should be most strenuously upheld. How to respond to these Observations was the major challenge in the current Report. The following section is a brief overview of the Report’s account on the issue of discrimination.

Summary of the Fifth Periodic Report

1. Foreign Nationals in General

The Report explains about the foreign nationals in general in the section on implementation of Article 2 of the Covenant under the headings, such as “Abolition of the Fingerprinting System,” “Acceptance of Foreign Workers” and “Measures taken by the Human Rights Organs under the Ministry of Justice to Ensure Protection of the Rights of Foreign Nationals.” It also explains about “Detention in the Immigration Facilities” with regard to Article 9, “Treatment of Detainees of Foreign Nationality” in the daiyo kangoku (substitute prisons) with regard to Article 19, “the System of Re-entry Permission Provided for in the Immigration Control and Refugees Recognition Control Act” with regard to Article 12, and the deportation system with regard to Article 13.

Meanwhile, with the amendment of the Immigration Control and Refugees Recognition Act, foreign nationals are required to be fingerprinted and photographed as part of the anti-terrorist measures, but since the information in the Report covers only those until 2003 or 2004, this is not mentioned[1]. However, in the examination of the Report, the Government representative attending the session would introduce the Report and in some cases, provide the latest information when responding to the questions raised by the Committee Members. The new measures may become an issue during the examination.

2. Korean Residents

The Report explains about Korean residents mostly with regard to Article 2, on “Awareness-Raising Activities to Eliminate Prejudice and Discrimination,” “Obligation to Carry the Alien Registration Certificate” and “Korean Schools,” as well as on the re-entry permit system with regard to Article 12.

In relation to the Concluding Observations, the Report states that while the Government will maintain the obligation to carry the alien registration certificate at all times because of the large number of foreign nationals who have entered or have been staying in Japan illegally, it also explains that due to the amendment of the Alien Registration Law in 1999, the criminal penalty (a fine of 200,000 yen or less) for violation of the obligation has been changed to an administrative penalty (a fine of 100,000 yen or less)[2]. It also mentions in regard to permanent residents, several special measures under the Immigration Special Law, that are available “in order to take into consideration their historical backgrounds and to further stabilize their legal status in Japan,” and explains those measures[3].

3. The Discriminated Buraku Issue

The Report explains about the “Dowa Problem” in regard to Article 26. It explains that since 1969, special policies have been implemented under the three Special Measures Law, through which the situation surrounding the Dowa districts have been greatly improved. It also states that the discriminatory attitudes have also been steadily disappearing, and concludes, “(T)aking 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 policies to resolve the Dowa problem.[4]”

Meanwhile, the Report explains under the heading “Institutional Aspects of Human Rights Protection in Japan” about the developments regarding the Council for the Promotion of Human Rights Protection, established under the Law for the Promotion of Measures for Human Rights Protection of 1996, in particular, about the submission of the “Human Rights Protection Bill which has the objectives of carrying out fundamental reform of the existing human rights volunteers system” as well as the promotion of human rights awareness and effective remedy of harm caused by human rights infringements, to the Diet in March 2002, and that the Government would continue to review the draft bill[5].

4. Ainu People

The Report mentions the Ainu people in regard to Article 27, on the “Policies Related to the Promotion of Ainu Culture.” It also explains under “Policies Related to Improving the Standard of Living of the Ainu People in Hokkaido” how the Prefectural Government of Hokkaido implements new measures, the “Policies for Promoting an Improved Living Standard for the Ainu People,” since 2002, and how the Government also cooperates with the policies of the Hokkaido Government as well as works to enhance the related budgets[6]. 

Problems

Next, I would like to go back to the Report as a whole, and identify the problems in it, including its text regarding the issue of discrimination. There are five major problems.

First, some sections do not respond directly to the Concluding Observations. This can be seen on issues regarding the interpretation of the Covenant in particular. For example, the Report does not mention anything regarding the Committee’s comments drawing attention to the interpretation that Article 27 may not be restricted to citizens[7]. The fact that the Report only explains about the situation regarding Ainu people in regard to Article 27 gives the impression that the Government is implicitly refusing the Committee’s interpretation of the Article. Also, the Committee reminded the Government 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[8].” However, the Report merely mentions the “special cases” for special permanent residents, and does not refer to the relevance of the Committee’s interpretation.

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. Yet the Report responds, “(T)he concluding observations in the Fourth Periodic Reports were distributed to the Supreme Court, and the GOJ understands that the Supreme Court will continue to carefully study whether or not to repeal the provisions of Rule 4 of the Habeas Corpus Rules as was recommended in paragraph 24 of the concluding observations, in line with the intent of the Habeas Corpus Law and taking into account the Rule’s consistency with other systems protecting personal liberty[9].” It is understandable that it is difficult in some aspects for the Government, as the executive branch, to touch on the appropriateness of the Habeas Corpus Rules, which the Supreme Court prepared, or the need for its amendment in view of the Japanese system of separation of powers. But for the Covenant and Committee, the concern is whether the contents of the Covenant and the recommendations of the Committee are implemented in the country or not, and the separation of powers in Japan is merely the country’s internal problem. If the Supreme Court is “carefully study(ing)” the issue, as was stated in the Report, the Government should have made the contents and progress of those studies clear. It is questionable, whether the response, which seems to be equivalent of having “dumped” the issue onto the Supreme Court, would satisfy the Committee.

Second, in relation to the above, there are sections, which has problems regarding persuasiveness in responding to the Concluding Observations. This is also related to the point raised below, that the Report is just an explanation of the systems and institutions from beginning to end. For example, 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 and is not convincing. Also, on the treatment of detainees, the Committee expressed its concern on the “lack of a credible system for investigating complaints by prisoners,[10]” yet the Report introduces as measures taken in response to this recommendation, “since April 1999 a system for directly hearing the opinions of the detainees through the opinion boxes placed in the immigration detention facilities has been implemented, which contributes to improvement in the treatment of detainees[11].” There is nothing wrong in having such “systems.” However, it is not the kind that would satisfy the Committee’s concerns, and it raises questions on whether it is convincing. This issue, meanwhile, is more directly related to the draft Human Rights Protection Bill in response to the Committee’s call for the creation of a national human rights institution. Had the draft Bill been adopted, it is likely that measures corresponding to the Committee recommendations would have been in place. The draft Bill, however, has not been adopted yet at the time of writing this article. Whether the draft Bill would produce an “independent mechanism[12]” or “independent body or authority[13]” called for by the Committee, must again be put to question. In particular, the position of the Human Rights Commission, which is expected to examine the complaints of human rights violations under the draft Bill, as an agency under the Ministry of Justice, which also oversees the immigration detention facilities and prisons, may not persuade the Committee, which has questioned the inappropriate treatment by immigration authorities, as a convincing “mechanism.”

Thirdly, the Report includes some interpretations of the Covenant, which are not internationally accepted. The Report explains under “Detention in the Immigration Facilities” in regard to Article 9, “(S)ince the deportation procedures of Japan are separate from and independent of the criminal proceedings and a foreign national detained under the deportation procedures is not equivalent to ‘a person arrested or detained on criminal charges,’ Article 9 of the Covenant does not apply to detainee under the deportation procedures[14].” This interpretation differs from the one indicated by the Committee since early on. The Committee 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[15]. Also, Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), which has the same objective as Article 9 of the Covenant, is applied according to its wording to procedures other than criminal procedures, and the European Court of Human Rights, which oversees the implementation of the Convention, applies Article 5 of the Convention to deportation procedures as a matter of course. According to these facts, the Government’s interpretation cannot be defended internationally.

Related to this point, another issue that is problematic is the seeming contradiction between such Government interpretation and the text in the Report in other sections. The Report, while indicating the above interpretation on Article 9, 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 “Abolition of the Communicable Disease Prevention Law and the Establishment of the Law Concerning the Prevention of Infectious Diseases and Medical Care for Patients Suffering Infectious Diseases,” also under Article 9[16]. Deprivation of liberty under these laws is a deprivation by administrative authority that is similar in nature as that in the deportation procedure. There is a concern that denying the application of Article 9 on administrative procedures on the one hand while reporting about deprivation of liberty through administrative procedures without providing reservations towards that end on the other, will be seen as a contradiction. Perhaps the cause of the contradiction is in the way the Report is prepared. The preparation of the Report is coordinated by the Ministry of Foreign Affairs, and it is understood that the Ministry requests the other relevant responsible Ministries and Agencies to provide information on the specific topics in the Report. Perhaps the coordination and complementing of the information had been insufficient. If that has been the case, it could be a factor bringing the credibility of the Report into question, and there may be a need to review the process of the preparation of the Report itself.

Fourthly, the Report includes considerable amount of explanation on systems and institutions, and in many cases, none on the operation of the systems, or the assessment of their effectiveness. For example, in regard to daiyo kangoku (substitute prisons), it explains the system, and the life of the detainee as, “(The human rights of detainees are sufficiently guaranteed and they are treated in compliance with the purpose of the UN Standard Minimum Rules for the Treatment of Prisoners[17].” It also mentions that “(T)here is a strict separation between the police section in charge of the treatment of detainees and the section in charge of criminal investigations[18],” to guarantee the human rights of detainees. These are all explanations about the system and the principles. What the Committee is concerned about, however, is how the systems are operated in practice, and that the section in charge of detention and the one in charge of investigations are both part of the same police organization. It is hard to believe that the Committee would be satisfied with the existing explanations.

Fifth, there are some sections in the Report that may give the wrong impressions. For example, the above mentioned section on the Buraku discrimination is not wrong, as far as it is an explanation of the chronology of events. But the way it is put forward, it reads as if the Government admitted the existence of discrimination against the Buraku people, and as a result of the special measures taken for the purpose, there was no longer any need for special policies. It gives the impression 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. It is insincere to give the impression that the Buraku discrimination has been eliminated, without explaining the various aspects of the situation.

Conclusion

The above was a brief overview of the Report. I would like to mention a couple of points before concluding.

It is not that there has been no progress in the human rights situation in Japan since the last examination of the Fourth Periodic Report in 1998. Notable progress has been made, for example, in issues of human trafficking and measures regarding children. But for many of the concerns, indications of violations of the Covenant and recommendations for improvement raised in the Concluding Observations in 1998, no measures have been taken. And most of all, as the 1998 Concluding Observation notes that the “Committee regret that its recommendations issued after the consideration of the third periodic report have largely not been implemented,” the points raised by the Committee were already seen in the 1993 Concluding Observations nearly fifteen years ago. These issues, such as those 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) were all pointed out in the 1993 Concluding Observations. To rephrase, it means that there have been no significant improvements since 1993 in the situation of human rights in Japan in these areas. In this context, even if there was the fact that the penalty for foreign residents for not carrying their certificates of registration had been changed from a criminal to an administrative one, it is related merely to a very small part of the Committee’s recommendations.

One of the reasons that no notable progress can be found in the situation of human rights in Japan since the concerns raised in the Concluding Observations in 1993, may be in the gap between the awareness or the starting point regarding human rights in Japan and the rest of the world. For example, on the treatment of Korean residents, while Japan starts from the fact that these people are foreigners, then build the legal system and then explain about it, the Committee seems to perceive them from their living conditions as people who should be treated the same as Japanese nationals. Also, on the treatment of detainees, Japan interprets the guarantee of the liberty of the person as not covering administrative procedures, yet the Committee understands that the guarantee applies to all deprivation of liberty. Unless Japan recognizes these gaps, and review its measures, it will continue to face repeated indication of violation of the Covenant from the Committee.

In any case, as the Report does not fully convey the actual situation of human rights in Japan, provision of accurate and credible information from the NGOs remain vital.