The JCLU welcomes the position in the Final Report recognizing that a new Human Rights Commission will have to be established as there are limitations to simply empowering and enhancing existing internal mechanisms. The Council has now also outlined clearly in the Final Report that the Commission must be independent from the government and this independence must be institutionally guaranteed. Moreover for this purpose the Council suggests that a council system in which the Commission would make decisions on an internal consultation and consensus basis, would be the preferable decision making structure. The JCLU agrees with the Council on these matters, in particular with respect to the Commission's independence from the government.
However, with respect to the secretariat of the Commission, the Final Report makes reference to the example of the present Civil Liberties Bureau within the Ministry of Justice. As the only organ within the Ministry of Justice that is in charge of civil liberties, its role will partly be taken over and included in the Commission structure. To the extent the Final Report is suggesting that the existing Civil Liberties Bureau should be turned into the secretariat for the Commission, the JCLU must object. In order to function independently from the government, the Commission must have an independent secretariat. It would be an unacceptable breach of the Commission's independence if the secretariat were to be placed within the Ministry of Justice or any other Ministry in the manner that the Civil Liberties Bureau is today. The secretariat of the Commission must be an integral part of a consensus-based Commission independent from the government. Moreover, civilians rather than government employees or officers should be appointed to the secretariat staff.
The Final Report takes the position that a limited type of Human Rights infringements by public authorities, namely discrimination and physical abuse, should be subject to affirmative remedies of the Commission. In particular discrimination and abuse by public authorities are to be remedied by way of conciliation, consultation, arbitration, legal assistance and public admonition.
It is JCLU's position that affirmative remedies should be applied by the Commission to all Human Rights infringements by public authorities and should not be limited to discrimination and abuse. As outlined above in the Section 6 of the previous article with respect to the Interim Report, this is necessary in light of the pervasive presence of public authorities in the private lives of citizens in combination with the traditional admiration of public authority and disregard for individuals' rights in Japan.
Moreover, the Final Report provides that the Commission should take on, and make subject to affirmative remedies, only those infringements of citizens' rights by government authorities that are so great that they may not be ignored under Human Rights Law. This implies that “non-serious” infringements should not be subject to the Commission's scrutiny.
The Council attempts to clarify this position by explaining that there are existing governmental complaint procedures in place with respect to issues such as false charges, mistreatment of detainees and environmental destruction, and that therefore these types of infringements do not rise to the level of human right infringements and should be dealt with only through the existing complaint procedures. The Council reasons that this is in keeping with the role of the Commission and concepts of burden sharing among governmental organs.
The JCLU disagrees with the above vague distinction between serious and non-serious infringements by government authorities. If the Council intends to limit the scope of the Commission's authority concerning government action, it should do so clearly by defining its terms adequately. Therefore the JCLU requests that the Council should clearly define what is to be considered a serious infringement and within the scope of the Commission review and remedy system and what is not.
It is the JCLU's position that government action that is already subject to some internal review system should not be unilaterally excluded from this definition. In particular the mistreatment of detainees in detention centers and police facilities should be included as serious infringements subject to the Commission's affirmative remedies. This is required in light of the Commission's key role as a third party check on government activity thereby ensuring citizens' protection against governmental infringement of their freedoms and rights. The JCLU, moreover, notes that this is in line with recommendation made to Japan by Human Rights monitoring bodies such as the Human Rights Committee under the ICCPR.
The JCLU appreciates the Council's revised position limiting the use of affirmative remedies by the Commission with respect to Human Rights infringements by the media and hate speech. The JCLU also welcomes the Councils recommendation that the Commission should provide litigation assistance with respect to Human Rights infringement cases brought by private citizens against other private citizens.
However, as outlined in Section 7 of the above article, the JCLU takes the position that the Commission's powers relating to individual expression should at all times be limited to guidance, recommendation, mediation and litigation assistance. The Final Report still provides for affirmative remedies by the Commission under some circumstances. Such affirmative remedies include the power to demand deletion or prevent publication. The Council argues that this is necessary given the inadequacy of the present judicial remedies, inter alia, the lack of any judicial remedy against incitement. As outlined above however, the present failings of the judicial system may not serve as an excuse to shift such matters out of the judicial remedy system and into an informal remedy system such as that provided by the Commission. In light of the careful balance that must be struck between private citizens' right to freedom of expression and freedom of media and their other Human Rights, the JCLU's position is that such affirmative remedies should be left fully to self-regulation systems and the judicial system.
The JCLU's position is that where the government intends to restrict people's right to expression, all the elements of such restriction should be carefully considered and defined by law. Therefore, the JCLU asks the Council to draft another bill to prohibit discrimination in which such clear definitions are provided.
The Final Report partially addresses the issues raised by the JCLU with respect to lawsuit assistance, see Section 4 of the previous article. In particular, the Final Report provides for a documents provision system in which the Commission should provide documents collected or created in its investigation to victims pursuing a civil case in the same or related matter. This is welcomed by the JCLU. In the present system victims pursuing civil cases against a person who has infringed their human rights can not obtain any documentation or information established in a related criminal case. Additionally, the Final Report provides for attendance by the Commission in civil law suits of victims and allows for the initiation by the Commission of civil cases on behalf of victims.
The JCLU welcomes these changes, but also reiterates, as outlined in Section 4 of the above article, the need to drastically improve the present legal aid system as provided by the Japanese Legal Aid Association, civil groups and lawyer groups that support victims of Human Rights infringements.