List of Issues:

1. Public Welfare
   
   

   It is a common judicial interpretation in Japan that "public welfare," constitutional grounds for restricting human rights, can be a basis for restricting human rights as provided for under the Covenant. Is the meaning of "public welfare" as it is interpreted in Japan the same as that recognized by international society in interpreting the Covenant (such as interpretations found in the General Comments of the Committee)?
   
   

2. Judges' Knowledge of the Covenant
   
   

   Do judges have an opportunity to receive training on the Committee's general comments or the interpretation of the Covenant while they are still legal trainees or after they have become judges? If yes, please elaborate on the specific program of training. If no, are there any plans to introduce a program of training or education on the Covenant for (prospective) judges?

Background:

1. The Government Report states that "the concept of the 'public welfare' has been ... defined by court precedents," and that "the Constitution applies substantially the same grounds as the Covenant to restrict human rights."
   
   The courts in Japan generally hold that the contents of human rights provided under the Constitution are identical with those of the Covenant. While the concept of "public welfare" to restrict human rights provided for under the Constitution is deemed automatically employable in restricting the rights provided for by the Covenant, examination of specific articles of the Covenant has not been conducted.
   
   One example is the decision of the Grand Bench of the Supreme Court handed down on March 8 of 1989 concerning an order of a presiding judge to prohibit the taking of notes by a spectator at a trial taking place at a district court. The plaintiff's counsel argued that the order had no legal basis. The Supreme Court ruled that the prohibition on note taking by spectators in the courtroom did not contradict Article 19, paragraph 3 of the Covenant, as it requires legislation to restrict freedom of expression and the prohibition order in question was based on provisions of the Court Organization Law and other laws. However, Article 19, paragraph 3 of the Covenant does not allow, even by law, indiscriminate restrictions on freedom of expression, and it limits legal restrictions to cases where it is necessary for 1) respect of the rights or reputations of others, and 2) the protection of national security or public order, or of public health or morals.
   
   Thus, in judging the propriety of restricting human rights under the Covenant, the Supreme Court, ignoring the words of the Covenant, held that grounds for the restriction of Constitutional rights can also be used as grounds for the restriction of rights provided for by the Covenant.
   
   This practice was repeated in a ruling handed down by the Petit Bench of the Supreme Court on August 29, 1997; a decision that was made after the submission of the present 4th Periodic Report by the Japanese Government. In this suit, the appellant claimed that his right to freedom of expression was violated, as it is guaranteed by Article 21 of the Constitution and Article 19 of the Covenant, by the process of authorizing textbooks for use in high schools that is undertaken by the Ministry of Education; the Ministry did not authorize the use of certain portions of a textbook authored by the appellant. The Supreme Court held that "it is clear from the wording of Article 19 of the Covenant, which provides for freedom of expression, that it does not prohibit reasonable as well as compelling restrictions based upon public welfare. It has already been stated that the authorization in question does not contravene Article 21 of the Constitution. Therefore, the Court cannot adopt an argument that the said authorization violates Article 19 of the Covenant."
   
   The Supreme Court ruled that its definition of the concept of "public welfare" is automatically employable as grounds for restricting human rights as provided for under the Covenant. However, the grounds used by the Supreme Court to restrict human rights are quite separate from the international standard used to interpret the Covenant.
   
   
2. One of the major reasons why the Japanese courts rule on cases as they did in the examples cited above is next to nonexistent training for (prospective) judges on the Covenant or its interpretation, particularly the General Comments of the Committee. It can be presumed that the lack of exposure to the Covenant has caused Japanese judges to create their own interpretation of the Covenant in a way that is quite different from that of internationally recognized standards.