Case Studies on Human Rights in Japan

Roger Goodman, Ian Neary

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781873410356
• eBook ISBN: 9781134243136
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

Japanese society is often referred to as an example of a homogeneous culture moderated by an ethos of groupism. Yet often enough homogeneity is its own worst enemy as norms are required and enforced at the centre of power to the detriment of individual and human rights.

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In Search of Human Rights in Japan

IAN NEARY

INTRODUCTION

Until the 1990s, the human rights records of Asian countries were rarely the focus of attention. The debate about rights issues was mainly to be found at the human end of the spectrum of Cold War conflict which had, at its other extreme, mutually assured nuclear destruction. However, with the collapse of the Soviet empire, the focus of attention shifted rapidly to Asia although the arguments rehearsed by both sides remained remarkably similar. Just as the Soviet Union had argued that its record on civil and political rights needed to be balanced against its ability to feed, clothe and house its population and maintain law and order – something which the USA was allegedly incapable of doing – so Asian governments such as Singapore have argued that their development-oriented policies which aim at eliminating poverty, unemployment and homelessness must have priority over the protection of the rights of individuals.

Until these problems are resolved satisfactorily, it is argued, Asian countries have neither the time nor the resources to address the wider issues of human rights. But it is then further argued that these very notions of rights either do not easily fit into, or may even have no place at all, in an Asian society. Moreover, it is not only representatives of the ruling elites of Asian states, such as China, Malaysia or Singapore who try to make this case. There are also those in the West who argue that Asian societies, which draw on indigenous cultural traditions such as Confucianism and its apparent repudiation of Western ideals of individualism, human rights and democracy, are inimical to such Western ideas as ‘rights’. Further, Western criticisms of the Asian countries' human rights record are said to express an attitude that is hard to distinguish from cultural imperialism.

This is why it is so important to study human rights in Japan. Whatever qualifications Japanese people may have about the extent to which they share in the country's economic success, nobody would deny that the first priority of government policy no longer needs to be economic development to the exclusion of all other considerations. Japan is consciously and unconsciously regarded as a model by most Asian countries, and it is therefore important to understand what kind of a model is being provided by Japan in the area of human rights. This is especially important at a time when the discussion of rights is becoming a central part of the discourse of international politics. In the context of the Cold War and the poor human rights record of many Asian countries, Japan seemed to be a shining example.

Now, as Cold War priorities fade, it is necessary to pay closer attention to the situation in Japan to enquire whether her undoubted constitutional commitment to human rights is being translated into practice at the level of the citizen in the street. It is necessary for two reasons. Firstly, because Japan is playing a more active role regionally and internationally – especially in human rights related areas. As Prime Minister Murayama has stated: ‘I intend to play an active role for the creation of…. an international society in which human rights are protected’ (PM Office, June 1994). It is very important, therefore, to scrutinize Japan's domestic record in the field. Secondly, because of the controversy that rages over the universalism or relativism of human rights standards. Are human rights standards Western constructs that can have no meaning in a society and culture that is informed by quite different values? Is an accommodation being reached between Western values and Japanese human rights practice? Could human rights be fully practised in Japan if not for the obstruction of vested interests in the state and society?

The essays in this collection illuminate various dimensions of human rights practice in contemporary Japan. With the exception of this introduction and the chapter written by Roger Goodman, each of them has been written by people who are or have been post-graduate students at Essex University attached either to the Human Rights Centre or the Contemporary Japan Centre. Four of them, those by Jayan Patel, David Forfar, Jonathan Ferries and Mika Ichihara, are essays which at a later stage will form chapters in doctoral dissertations. The chapters written by Kathianne Hingwan, Denise Cripps, Michele Reilly and Howard Mulvey all began as dissertations submitted for the MA in the Study of Contemporary Japan which has been running at Essex University since 1987. We continue to be impressed by the high quality of written work produced by doctoral and masters students; it is often of publishable quality and deserves a wider readership yet there is no obvious journal to which it can be submitted. Reflecting on this, and the fact that our research interests were moving in the direction of human rights-related issues, Roger Goodman and I began to re-examine the dissertations which had been submitted over the last four years to see if there was sufficient material of publishable quality to produce a single volume. Our conclusion was that there was; hence this volume.

Each of the essays can be read as a discrete study. However, to provide the reader with an overview of the context of these specialized reports, we begin with an introduction that will consider some aspects of the post-war history of human rights in Japan to suggest how the specific studies shed light on more general problems.

THE CONSTITUTION

All discussion of human rights in Japan must start with some reference to the Constitution. As Oda and Maki have pointed out,¹ three notions are fundamental to the post-war Constitution: popular sovereignty, pacifism and basic human rights. In the words of the preamble to the Constitution, governmental authority is ‘derived from the people, the powers of which are exercised by the people and the benefits of which are enjoyed by the people’. The pacifism of the Constitution is exemplified by Article Nine in which Japan commits itself to peaceful cooperation with other countries, the Japanese people renounce war as the sovereign right of the nation and also the ‘threat or use of force as a means of settling international disputes’. Fundamental human rights are ‘conferred on the people as eternal and inviolable rights’ and are defined in considerable detail in articles 10–40 of the Constitution. They stipulate that all citizens are ‘equal before the law’ (article 14) and free from discrimination ‘in political, economic, or social relations because of race, creed, sex, social status or family origin’. Within the framework of rights, individuals may sue for redress for damages caused by illegal acts of public officials. Further, individuals are granted an impressive list of freedoms including freedom of thought, religion, assembly, association, speech, press and all other forms of expression, plus freedom to choose and change residence and occupation. Marriage is to be based on the ‘equal rights of husband and wife’ and laws on marriage are to be based on ‘individual dignity and the essential equality of the sexes’ (article 24). People have the right ‘to maintain the minimum standards of wholesome and cultural living’ and the right to ‘an equal education correspondent to their ability’ (articles 25–6). Moreover, the right and obligation to work, the rights to ‘organize and bargain collectively’ and the right to hold property are all guaranteed (articles 27–8). Ten articles deal specifically with the rights of those charged with criminal acts (articles 31–40).

It might, however, be objected that this is an excellent example of the ‘cultural imperialism’ referred to above. After all, it is clear that the 1946 Constitution was written by the occupying American power and was imposed on a defeated Japan which was unable to resist or even significantly modify the terms of the proposed Constitution. Indeed, there are those who since 1946 have argued that it is an alien Constitution which is not informed by Japanese traditions and, in particular, over-emphasizes the rights of the individual while neglecting their duties towards the nation.² The essay by David Forfar will suggest that this is an on-going argument.

While it cannot be denied that the Constitution was written by members of the US Army, translated into Japanese and virtually forced on the Japanese government as the price to be paid for retaining the Emperor, it is clear that it had a broad base of popular support. At the same time as the Americans were devising the Constitution, a politically left-of-centre Constitution Research Group produced a draft constitutional framework within which the Emperor would have no political role and which included such notions as the ‘right to a minimum standard of wholesome living’. A public opinion survey carried out in May 1946 showed the draft Constitution had overwhelming popular support with 85% in favour and only 13% against.³ None of the concepts in the Constitution were unknown in Japan and many of the rights listed in the Constitution had been the targets of popular struggle in the pre-war period. Moreover, the fact that there has been no serious attempt to amend the Constitution suggests that it has the flexibility to guide the political life of modern Japan. In a general sense, therefore, I think the argument for the alien nature of the Constitution is now weak and never was particularly persuasive.

Recent debate on the Constitution has centred on the ‘peace clause’ which some argue is no longer appropriate for a state that needs to make a political and strategic contribution to the international community commensurate with its economic strength. In this sense the Constitution is regarded as preventing Japan from making a ‘normal’ contribution to international affairs. Thus far the Constitution has proved itself to be sufficiently adaptable to permit Japan to contribute to Peace Keeping Operations in Cambodia, Zaire and Mozambique. It is not clear whether an even more active contribution to the work of the United Nations would require full constitutional revision. It might not.

Within the domestic context, the legal and political framework set out in the Constitution has shown considerable flexibility enabling it to cope with the rapid social and political change which has taken place since 1947. In part, this flexibility derives from one prominent feature of the Japanese social system, viz. its ability to readily absorb outside ideas, in this case legal concepts from the USA. As Oda Makoto has commented: ‘(i)t is characteristic of Japanese judicial discussions on constitutional cases to be influenced by the judgements of the US Supreme Court’. The judgements of the Warren Court in the 1960s concerning the constitutional right to a speedy trial and the use of Justice Holmes' test of ‘clear and present danger’ in judgements about the exercise of freedom of expression are examples of this.⁴ There is no question here of an ‘imposition’ of foreign ideas and, if the Japanese legal process is capable of absorbing aspects of American legal thought, it is clearly possible that it can assimilate ideas of rights.

But, no matter how important the constitutional and judicial structure may be in creating a framework conducive to human rights, the crucial question is how those human rights have been implemented. Our case studies explore various aspects of this problem in some detail. By way of introduction, however, I want to consider three areas which will suggest an argument that will inform the rest of the book. To do this I will firstly outline the role played by the Civil Liberties Commissioners; secondly, briefly consider some aspects of the implementation of the international covenants on human rights, and thirdly, contrast the Special Measures Laws introduced to improve the circumstances of Buraku communities with the US civil rights policy. What general conclusions about human rights in this Asian society can we draw from a review of practice in these three areas?

CIVIL LIBERTIES COMMISSIONERS (JINKENYŌGO IIN)

The Civil Liberties Bureau (CLB)was created in 1948 by SCAP, modelled on the Civil Rights Section of the US Department of Justice, to enable the state to play ‘an active role in protecting the newly created rights'. In the following year, the CLB decided ‘to ensure the full protection of human rights by the appointment of Civil Liberties Commissioners (CLC) throughout the country (to) make known the ideal of human rights in order to protect the fundamental rights guaranteed to the people’.⁵ The law provides for a maximum of 20,000 such commissioners although as of January 1991 there were only 13,000.⁶ They are trained though not paid and serve for renewable periods of three years. Their duties are:

– to make ideals of human rights better known to the public

– to encourage the human rights movement

– to investigate and collect material on human rights violations, attempt to remedy situations and report to the Civil Liberties Bureau and Ministry of Justice.

– to promote civil liberties among the poor and promote human rights in all affairs.

Commissioners are appointed by nominations from local organizations; their names must then be endorsed by a local government assembly and then passed on for approval by the Ministry of Justice, Federation of Bar Associations and National Federation of Civil Liberties Commissioners. At each stage the candidate's background and qualifications are investigated to ensure they are consistent with the ideals of human rights. At the Ministry of Justice there are two hundred full-time employees who administer the national system and within each local government structure there is a civil liberties commissioner unit. The commissioners themselves are organized into local assemblies which are linked to prefectural associations and to a national body which has links with the Ministry of Justice. The positions are prestigious, mainly filled by retired men.

In 1990, 432,000 cases were brought to their attention (up from 290,000 in 1976). Very little analysis has been done in Japan or elsewhere on the kind of work they carry out. One of the few studies that exists gives the following examples of their case load:

A rural family was ostracized by their neighbours for being uncooperative; they were not invited to any weddings or funerals, and their children were bullied at school. CLB officials convinced the community that its behaviour was inappropriate.

An elderly man was unable to sleep because of the noise of a business adjoining his apartment. The CLB showed both parties how to minimize the impact of the noise.

People living near Sumida river in Tokyo claimed that noxious odours from the river were threatening their health and making their homes unusable. After some hesitation the CLB helped to persuade the local and national government to do something about pollution. The river now has fish living in it. The CLB takes credit for assisting in establishing the notion of environmental rights, publicizing the problem and applying pressure for change.

The CLB was able to stop the private publication of a list of Burakumin who lived in and around a large city which would have made it easier for people to discriminate against this group.⁷

From what little data is at present available (and the cases listed above are, we are told, the ‘special’, more serious cases) their main role seems to be to provide an extra-legal form of conciliation, settling disputes between strangers or within families. As such, the system has become one of a number of quasi-legal conciliation systems which keep cases out of the courts. A positive appraisal of the CLC structure, then, would be to suggest that it provides informal institutions which foster social solidarity within communities while providing accessible and cheap means of deali...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Acknowledgements
• 1. In Search of Human Rights in Japan
• 2. The Role of the Bureaucracy in the Enforcement of Human Rights
• 3. Identity, Otherness and Migrant Labour in Japan
• 4. Flag and Kimigayo Anthem
• 5. On Introducing the UN Convention on the Rights of the Child into Japan
• 6. Human Rights in the Japanese Mental Health System
• 7. Patients' Rights: Organ Transplantation and Brain Death in Japan
• 8. Obasuteyama in Modern Japan: Ageing, Ageism and Government Policy
• 9. Individuals Against the State? The Politics of Opposition to the Re-emergence of State Shintō
• 10. Japanese Human Rights Practice Abroad: A Case Study of Exporting Hazardous Industrial Activities
• Index