Japan has ratified many international Human Rights conventions. The JCLU, however, believes the Human Rights standards and requirements set out in those conventions have not been adequately implemented in Japan. This concern is shown by the U.N. Human Rights Committee.*1 Therefore the JCLU recommends that the planned National Human Rights Commission (the Commission) be charged with the task of reviewing national implementation of Human Rights conventions. In particular the Commission's mandate should include:
a. Review of and Advocacy for Implementation. Review of and subsequent advocacy for the implementation on a national level of the Human Rights standards set out in the conventions to which Japan is a state party. In particular this should include advocacy and reports directed towards the national government.
b. Consultation on Reports. Consult and advise on all governmental reports that Japan is obliged to make under the different international conventions such as the ICCPR.
c. Advise on Implementation. Advise and consult government with respect to national action plans drawn up to implement Japan's international Human Rights obligations. At this point in time, the Japanese government does not generally have such action plans in place nor does it draw up such action plans when it enters into new Human Rights treaties. However, the government should routinely establish such action plans and the Commission should have an advisory role in this process.
In the Interim Report, the role of the Commission is limited to providing remedies to victims for harms from Human Rights infringements. The JCLU takes the position that, as the primary institution in the nation for the protection and promotion of Human Rights, the Commission should have overarching responsibilities. The UN Paris Principle on National Human Rights Commissions (E/1922/22) also recognizes this as a role of a Human Rights Commission. As such it should be empowered to undertake surveys and research with respect to Human Rights infringements in the nation and make public reports, recommendations and advisory statements. The Interim Report states that such advisory roles, including the government's submission of a “Human Rights White Paper”, cooperation with UN human rights monitoring bodies and foreign human rights commissions, and governmental reports under human rights treaties should be taken on by other agencies. As outlined above the JCLU takes the position that, the Commission's mandate should include these advisory responsibilities.
The JCLU is generally in agreement with the Council regarding this issue. It is noted that affirmative remedies, such as mandatory reparation payments, imposed by the Commission can themselves be an infringement on citizens' fundamental freedoms and Human Rights. Therefore the activities to be covered by the Commission and the remedies it can enforce should be clearly defined in a limited manner in order to avoid any unnecessary governmental intervention in civil life.
The Council states that the present legal remedy system is not effective for purposes of remedying Human Rights infringements. The JCLU however strongly disagrees with the Council's subsequent conclusion that emphasis must, therefore, be put on administrative, i.e. non-judicial, remedies such as affirmative remedies to be implemented by the Commission. It is the JCLU' s position that legal remedies obtained through the court system are indispensable for purposes of protecting and ensuring citizens Human Rights. Moreover, such legal remedies, as opposed to informal remedies, should be the primary remedial tools for victims of Human Rights abuse.
It is the JCLU's position that the government of Japan should drastically improve the present legal aid system as provided by the Japanese Legal Aid Association. In particular the government should provide monetary assistance, in form of subsidies or preferential tax treatment, to civil groups that support victims of Human Rights infringements.
In addition to the above, the legal procedures should of course be open to the Commission and it should generally have the ability to support and advise individual victims in such procedures.
The JCLU takes note of the importance of the freedom of expression, itself a Human Right, and the need to limit infringement of this right by the government. Therefore the remedies at the Commission's disposal with respect to hate speech should be limited to guidance, consultation, and mediation. The Commission should not be given the power to enforce affirmative remedies, such as injunctions or mandatory retractions, with respect to hate speech. In light of the protection required for freedom of speech itself, such remedies against hate speech should be judicial remedies only entrusted to the courts.
It is noted that the Council considers that affirmative remedies by the Commission are necessary because the present judicial system is not easily accessible to victims and generally does not offer victims adequate relief. As outlined in the Section 4 above, the JCLU is of the position that the present judicial and legal aid/assistance system must be drastically improved. This improvement should be made the explicit goal of the government and included in the Commission's mandate. The JCLU recommends that the Council consider providing the Commission a concrete role in the trial procedure.
It is the JCLU's position that the Commission's most important role is to provide remedies to victims of Human Rights infringement by public authorities. As the reach of the administrative agencies of government has expanded in recent decades, the breadth and depth with which public authorities on both the national and local level reach into individuals' lives has also expanded. In particular, administrative procedures and penalties are a great cause of concern. Two areas in which this concern has been at the United Nations in the past treatment of mentally ill patients who are often subjected to mandatory hospitalization and the illegal treatment of individuals in detention centers and correctional institutions.
Given the traditional ideology in Japan of “kanson-mimpi”, in which the state takes primacy over the individual, it is important to provide citizens with substantial protection against Human Rights infringements by public authorities at all levels. In light of this the JCLU is of the opinion that the Council is mistaken in putting Human Rights abuses by government authorities on the same level as those by civilians and the mass media. Protection against infringements by the government should be made the primary role of the Commission in order to ensure that these very fundamental infringements are not disregarded.
The Council states that it did not make the administrative penalties and other administrative actions a target of remedies to be enforced by the Commission because of the existing internal complaint procedures where citizens' complaints can be addressed. This however disregards the fact that such internal complaint procedures do not generally provide sufficient independent review or scrutiny. There is a limit to what can be achieved through internal review procedures and access to review and remedy by an independent third party, such as the Commission, it is essential to ensure citizens' Human Rights.
The JCLU notes the great importance of freedom of expression and freedom of the press, in a democratic society. At the same time, the JCLU recognizes that the news media today sometimes violates human dignity and privacy, through defamation, excessive coverage and sensationalism. In light of the importance of freedom of expression and the press are to a democratic society in which the media has a role to inform people and provide diverse perspectives on the issues that arise in society, these rights must also be given great deference.
The JCLU therefore is of the opinion that remedy of Human Rights infringements by the news media should be left predominantly to self-regulation and ultimately to the civil court system. Only to the extent self-regulation procedures are not available should the Commission provide consultation and mediation procedures. The JCLU agrees with the Council's proposal that a complaint and response system should be set up, including a third party review board or commission set up by the industry. This would be similar to the third party review board established by the broadcasting organizations to handle, inter alia, complaints from viewers.
The JCLU however, cannot agree with the Council that the Commission should be given the power to administer affirmative remedies in cases of privacy invasion and excessive coverage of crime victims and their families, criminal defendants, and minors accused of crimes. Given the importance of the freedom of the press such media behavior should be subject to civil law suits, not the informal remedies of the Commission.
Where victims of Human Rights abuse do not have adequate access to the judicial system this should be remedied (see Section 4 above.) The government should take measures to broaden these citizens' access to the courts.
Some newspaper companies have established third party review boards. JCLU asks other media companies to follow this trend in providing remedies for victims of media coverage. Especially those magazine publishers which often cause defamation and privacy invasion should establish these boards immediately.
Even where these review boards do not work effectively, the role of the Commission should be limited to solely consultation and conciliation.
Generally the JCLU's position is that where a non-public entity or individual is subject to a Commission investigation, they should have the right to stop such investigation and not be forced to participate in it. This is necessary to ensure that there is no undue or unnecessary intervention by the Commission in civil life. Where the case being investigated involves a possible Human Rights infringement by public authorities, however, the subject of the investigation should not in any way be able to stop the investigation.
The JCLU takes note that there is concern that the Commission will not be able to undertake effective investigations without enforcement powers. However, as presently provided for in the Councils report, the range of discrimination and areas to be targeted by the Commission are not clearly outlined. Moreover, there is no substantive definition of what constitutes a Human Right infringement by one private person against another private person. This clearly creates a potential for overbroad and undesirable intervention by the Commission in the lives of citizens. Therefore the Commission's authority should be limited by making the investigation procedure voluntary with respect to private parties and by providing clear definitions of and limitations to the Commission's scope of authority.
JCLU considers that the Commission's independence is of primary importance and must be taken into account when determining its organizational structure. Given that the Commission is charged with executing affirmative remedies with respect to public authorities as well as private parties it will clearly have to be substantially independent from the government.
The Commission should be established as an independent executive commission, i.e. under supervision of the prime minister as an external organ of the Cabinet Office (as defined under National Governmental Organization Law article 3). The secretariat of the Commission should be staffed by persons appointed independently by the Commission itself, i.e., not by the government or ministry. In this context the JCLU refers the Council to the UN Paris Principle and “National human rights institutions : a handbook on the establishment and strengthening of national institutions for the promotion and protection of human rights” published by the UN Human Rights Centre. Both documents repeatedly emphasize the importance of such commissions' independence from the government.
The Commission should generally be independent from the government to the extent possible. However, it is of primary importance that the Commission is completely independent from those parts of the national government that are most likely to be the cause of Human Rights infringements. In particular, its full independence must be guaranteed from government divisions in charge of police matters, prosecution, detention, immigration and the medical treatment/confinement of the mentally ill.
In order to guarantee the Commission's independence its members should be appointed multi-dimensionally in accordance with a transparent and equitable system. Multi-dimensionality in this context is means that the membership of the Commission should reflect diversity and knowledge as to gender, social class, ethnicity, and religion.
Finally, financial independence is crucial for the Commission to be able to fulfill its mandate properly. The Commission should be able to submit its budget to and request funds directly from the Ministry of Finance in the same manner as each of the Ministries does. It should not be required to submit its budget to any other ministry and thereby be included in the budget of such ministry and made subject to its influence and control.