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Step by Step towards Disability Anti-Discrimination Law(September 2004)

By Shuhei Ohta of Japan Council on Disability, translated by the Information Center of the Japanese Society for Rehabilitation of Persons with Disabilities (JSRPD). This article originally appeared in the June 2004 issue of "Normalization."

Evaluations Divided on Amendment to The Basic Law for Persons with Disabilities

The amendment bill for The Basic Law for Persons with Disabilities was at last passed by the Diet in May. This bill includes "anti-discrimination provisions", stating, "Nobody shall discriminate (against) persons with disabilities or perform other discriminating acts to violate their rights and benefits, because of their disabilities," which is the most remarkable feature. However, since no penalty is stipulated, its legal effectiveness and binding force are quite weak.

Although JD (Japan Council on Disability) has been asserting to amend The Basic Law for Persons with Disabilities, there have been many twists and turns before it is finally realized. Lots of disabled persons' organizations including JD, demand the establishment of Anti-Discrimination for Persons with Disabilities. This is because they are aware that they need a legally binding law, which they can use during a trial, when the problem of "discrimination" actually occurs. Therefore, there has been a deep-rooted concern among some of the self-advocacy groups that with this amendment to The Basic Law, establishment of the new Anti-Discrimination Law may be delayed or even abolished.

Partly influenced by such self-advocacy groups' movement, when the Diet was dissolved last year, the amendment bill to The Basic Law was withdrawn. I myself also have the same concern that by just adding the vague anti-discrimination provisions, the probability is that Government would not focus on the main issue. However, when I see the differences between the Japanese legal system and those in Europe and America, I believe that it is much more important to proceed step by step, very steadily, until the establishment of the new law is finally realized.

Points to be amended

This amendment bill also includes some other important ideas. In Article 8 (Fundamental Policies), it is stated that "In taking the plans related to the welfare of the disabled persons, the independence of the disabled persons should be fully respected and consideration should be given so that the disabled persons can live independent lives in their local communities, making the most of their abilities." While in new Article 14 (Education), it is added that "by actively promoting exchanges as well as joint studies between children and students with disabilities and those without disabilities." What is meant by such "joint studies" needs more discussion, but this statement has certainly opened the door to the inclusive education.

As for the definition of disability, there is a minor change in the amendment bill (Article 2), by replacing "persons whose daily life or life in society is substantially limited over the long term" with "persons whose daily life or life in society is continuously and substantially limited." The fundamental concept of listing three disabilities (physical, intellectual and mental disabilities) remains the same. JD insists the necessity of the more inclusive definition of disabilities, otherwise the persons with disabilities who do not fall under any of these three categories are very likely to be left out in future just as before. The addition of the new provision in Article 23, "The State and local public entities shall promote study and research on intractable diseases and others which may cause disabilities, in view of the difficulties in their prevention and treatment. The State and local public entities shall also endeavor to carefully promote measures for the persons whose daily life or life in society is continuously and substantially limited due to the disabilities caused by intractable diseases and other reasons" can be appreciated.

This Article 23 is contained in Chapter 3, which is entitled "Fundamental Measures for Preventing Disabilities." This concept of "prevention of disabilities" needs a little more consideration.

In this amendment bill, the employment of persons with disabilities in society is clearly stated. In Article 15-3, it is stipulated, "The State and local public entities shall provide financial assistance and take other necessary measures in order to expand facilities for persons with disabilities to work and to get vocational training in local communities." This gives a hope to the small workshops suffering from financial difficulties.

Moreover, the Central Council for the Promotion of Measures for Disabled Persons (Article 24) is restored, which will settle on Fundamental Plans for Persons with Disabilities. In addition, all the prefectures are required to develop Prefectural Plans for Disabled Persons. "Efforts to Achieve Independence" and "Protection, etc. of Severely Disabled Persons" are going to be deleted in the amendment bill.

Expanding Disabilities' Movement with JDF

As above, there is certainly some progress, although it is still not enough. At present, the problem of financial assistance is causing confusion and the integration with long-term care insurance is hotly disputed. In their background lies the problem of financial resources, which is obvious from the Trinity Reform. Under such conditions, it is expected that amending The Basic Law and thus stepping forward will at least play a role as a breakwater against a big wave to wash away persons with disabilities.

Now in the preparatory committee of JDF (Japan Disabilities Forum), "Special Committee on Rights and Legislation such as Ant-Discrimination Law for Persons with Disabilities" is established and is going to start examination towards the establishment of Ant-Discrimination Law for Persons with Disabilities. Even after this amendment of The Basic Law, it is expected that research on measures and extensive movement aiming at legislating the new law will not be abandoned but will continue to be promoted further.

At present, discussions are held in the United Nations on the rights of people with disabilities in order to set up a new convention. From the global point of view, disabilities are often caused by war or famine, therefore the thorough solution of which is very much anticipated.

The United Nation's movement has an important meaning for the people with disabilities in Japan, too. The movement to establish Anti-Discrimination Law should be linked with the works by the United Nations in future. The disabled people's organizations in Japan have responsibilities to work together and enhance the current trend towards the realization of the UN Convention and the establishment of the Anti-Discrimination Law in Japan.