2nd Quarterly, 2005 No.136
Significance and Challenges Concerning the Enactment of Tottori Prefecture's Human Rights Remedial Ordinance
Kenzo Tomonaga, Director, BLHRRI
On October 12, 2005, the Tottori Prefectural Assembly passed the "Tottori Prefectural Ordinance Concerning the Promotion and Procedures of Remedies for Human Rights Violations" (hereinafter, "Remedial Ordinance"). The ordinance is historically significant because it is the first of its kind to be enacted in Japan. The Remedial Ordinance comprises four sections consisting of 33 articles and supplementary provisions.
Articles 1, 2 and 3 form the first "General Rules" section prescribing purposes, definitions and prohibition of human rights violations.
Articles 4-15 form the second section with provisions relating to the secretariat to prescribe its creation, organization, appointment, tenure, guarantee of status, dismissal, mandates, convening, exclusion of commissioners, and reporting. The five part-time commissioners are to be appointed by the Governor with the approval of the Prefectural Assembly from candidates of impeccable character who have deep insight into human rights issues and thorough experience of human rights work (Art. 7).
Articles 16?28 form the third section prescribing consultation, filing of remedial claims, investigation, cooperation by concerned parties, notification of investigative results, remedial measures, matters to which attention must be paid in the course of investigation and remedial procedures, termination of investigations and remedial procedures, recommendations for correction, provision of an opportunity to excuse, notifications of such provision, champerty, and sanctions.
Articles 29?33 form the fourth section, which concerns attention to be paid to the interrelation between different human rights, prohibition of disadvantageous treatment, considerations for freedom of the press, protection of personal information, and delegation.
The supplementary provisions prescribe that the ordinance shall become valid on June 1 2006, and expire on March 31 2010 unless the requirements for extension are met or other measures are taken.
The Significance of the Remedial Ordinance
The Remedial Ordinance holds further historical significance because it puts into effect one of the 1965 Cabinet Dowa Measures Council Proposal recommendations for "legal regulations on discrimination and judicial relief for victims of discrimination." The Human Rights Protection Bill, submitted to the Diet in March 2002, was scrapped due to the dissolution of the House of Representatives in October 2003. The Bill had faced criticism including concerns that its establishment of a human rights commission at the national level would fail to provide an effective mechanism to deal with discrimination and human rights violations commonly taking place in people's daily lives. The attempt to resubmit it to the ordinary session of the Diet in 2005 was also unsuccessful due to new criticism from within the ruling party. It is historically significant that the Remedial Ordinance, which contains a provision to establish a commission to facilitate remedies for human rights violations, has been enacted at a prefectural level before any concrete action at the national or local levels have been taken.
The enactment of the Remedial Ordinance is important because;
- It prohibits serious discrimination and human rights violations. Article 3 of the ordinance prohibits unfair discriminatory treatment, discriminatory speech and behavior, discriminatory personal background investigations (such as those undertaken to identify Buraku origin), and the publishing or sale of Buraku lists.
- It creates a commission to facilitate remedies for human rights violations. The Commission is authorized to undertake consultation, conduct investigations, assist concerned parties through giving advice or information about related institutions, instruct human rights abusers through enlightenment or education, coordinate relations between abusers and victims, prosecute cases of human rights violations that fall under the criminal code, make recommendations to perpetrators of serious acts of discrimination or human rights violations and publicize the recommendations if necessary, and provide assistance in legal actions.
- Under current law, investigations into complaints of discrimination or human rights violations can only be conducted with the consent of concerned parties. Though investigations under the Remedial Ordinance still require consent, they can be backed by legal force in the form of administrative fines. (Refusing an investigation with no just reason can result in an administrative fine of 50,000 yen).
- Under current law, no remedies are available for officially recognized discrimination or human rights violations except instruction. Under the Remedial Ordinance, in cases of grave human rights violations involving threats to life, physical safety, or repeated overt discriminatory speech or behavior where protection is needed, the Commission may instruct the offender to cease the violation and, if the instruction is not heeded, publicize the offence.
- When victims of discrimination or human rights violations file a lawsuit, the Commission can provide legal assistance through facilitating access to and providing copies of relevant information.
Future Challenges
The Tottori Prefectural Bar Association, two Diet members and the mass media have expressed strong reservations over the Remedial Ordinance. Considering these reservations, the ordinance faces the following future challenges:
- To securing the independence of the Commission. This is of particular concern considering that the appointment of the five commissioners is subject to the approval of the Prefectural Assembly upon the recommendation of the Governor. The commissioners should be knowledgeable on human rights issues, thoroughly experienced in the addressing of human rights problems, and be adequately gender balanced. The Commission should also include at least one law practitioner. The same considerations are required in the appointment of a secretary-general and secretarial staff. It should mandatory for the secretary-general and secretariat staff to undergo human rights training.
- To appropriately deal with discrimination and human rights violations committed by public authorities.
- To place importance on the efforts of concerned parties in resolving complaints submitted to the Commission, and consider publicizing recommendations or conducting investigations involving administrative fines as a last resort.
- To prepare a substantial annual report.
Article 14-3 of the Ordinance states that, "The Commission shall prepare an annual report on its administrative work under the ordinance, and submit it to the Prefectural Assembly through the Governor." The report is expected to include proposals based on the analysis of complaints, consultation, investigations and recommendations it has made over the preceding year. This is also articulated in the Paris Principles regarding the creation of a national human rights institution.
Other prefectures are also urged to enact similar ordinances. At the national level, a Human Rights Remedial Law (provisional title) in line with the Paris Principles should be enacted at the earliest possible opportunity.