The Importance of Analyzing the Intent and Impact of Our Discriminatory Laws while Eradicating Them, or, "Straightening Out the True Nature of the Issue" (May.2001)

Editors' note:
A long list of occupations, licenses, higher educational pursuits and opportunities that disabled Japanese have been officially excluded from, called "Disqualifying Clauses for Disabilities," have now come under governmental review and, in most cases, are being abolished. The following article puts forward the argument that while this action is laudable and long overdue, that the societal basis of discrimination will not be uprooted unless a serious examination of the assumptions underlying these "clauses" is conducted at the same time. The author also calls for the Japanese government to acknowledge and apologize for its role in sanctioning this level of society-wide discrimination.

The review of " Disqualifying Clauses for Disabilities" (*)
is about to be put in place. Now that the Government Task Force for the Promotion of Measures for Disabled Persons lay the course and draft amendments of many laws were submitted to the Diet, it seems to be a matter of time. As we have been engaged in this issue for a long time, we can not help but reveal our joy on the verge of the fulfillment of our wishes. However, we still have something that we are not satisfied with. When the draft amendments drawn up by the Task Force were discussed at the Central Council for the Promotion of Measures for Disabled Persons (hereinafter referred to as "the Council"), persons with disabilities themselves were in universal agreement to point out an underlying problem and consequently a document named "opinion in writing" was attached under the name of chairperson and head of the planning and coordination division. Our dissatisfaction is in common with this opinion. Although the draft prepared by the secretariat (the Ministry of Public Management, Home Affairs, Posts and Telecommunications) was given a certain appreciation in the discussion at the Council, it provoked a strong backlash among persons with disabilities because the draft amendments did not include the fundamental statement: "All the disqualification clauses shall be abolished in principle." And I shared completely the same view with them. Persons with disabilities criticized the lack of serious reflection on the historical aims of the disqualification clauses and their own consequent sufferings, as seen in the following phrase, " . . . to examine whether the disqualification clauses are truly necessary or not . . . " included in the draft with a number of reasons such as the advancement of science & technology. The draft was based on self-justification on the part of the authorities with the notion that the disqualification clauses "once had their own meaning but should be reviewed with the change of the times."

The idea of "social defense"
The discussion pointed out the essence of the disqualification clauses; unless it undergoes a comprehensive examination, the problem will not be resolved in the fullest sense. That is, as pointed out by the persons with disabilities, the disqualification clauses were based on the idea of social defense that qualifications, licenses, and opportunities given to them (disabled persons) would disturb the tranquility of society, and obviously aimed at eliminating them from society. The disqualification clauses constituted a societal barrier by means of the legal system and also effected discrimination in public administration. Therefore, the disqualification clauses not only brought about significant difficulties in social participation of persons with disabilities without giving qualifications, licenses, or opportunities, but also contributed to generating, aggravating, and strengthening misunderstandings and prejudices among the public towards persons with disabilities. Considering the historic background, it was inevitable that persons with disabilities, who were confronted by this situation (exclusion) in their face and forced to live a life of enormous affliction, made a strong plea in unison for "abolishment in principle" of these clauses.

The paradox of "protect and protect from"
As we know from history, it is obvious that persons with disabilities have been regarded not only as incompetents but also as elements that disturb the tranquility of society. People recognized the two purposes of residential facilities for persons with intellectual disabilities. One is to protect them from public persecution, the other is to prevent social turbulence caused by them, as expressed by the complex phrase: "to protect them, to protect from them". Without decisively reflecting on and straightening out this basic intention or idea, "normal life in the community" will be nothing but a pie in the sky. As is commonly known, among the measures based on the idea of social defense, the most cruel were the Leprosy Prevention Law for Hansen's disease and the Eugenic Protection Law associated with the blatant eugenicist idea, both of which were abolished or revised completely. The issue of disqualification clauses lies indeed on the extension of these laws. Therefore, unless the essence (idea) is not put right, the problem will not be truly solved. More specifically, it is essential to reflect on the past measures and to apologize to persons with disabilities.

Disturbing a sea of tranquility
Paradoxically speaking, it has been suggested that the reason of existence of persons with disabilities lies in playing the role of scapegoats, covering up the real causes of social inconsistency and presenting superficial assent and tranquility. The illusion of tranquility in society could be achieved by holding persons with disabilities in abhorrence and under persecution. The prime example of this approach, cloaked in an assumption of validity and surviving to date, is this series of disqualification clauses. Therefore, in line with the growing consciousness of human rights, it has become impossible to get around this issue. This forms the ground for my long-standing assertion that the first accused will be the Japanese Government if an affirmative law like ADA (Americans with Disabilities Act) is enacted in Japan.

It is a matter of course for a Government trying to implement measures based on the philosophy of normalization to review the disqualification clauses that stand for discrimination by the legal system. I would like to express my respect for the high-minded consciousness of human rights and look forward to the results. In this connection, it is essential for the Government to decisively reflect in some way on the history and the idea behind the past measures, i.e. unrestrained and uncritical enactment of the disqualification clauses of no significance, and to put an apology into words for the pain persons with disabilities have been forced to assume as a burden in life. As we are not free from errors, we can recognize our mistakes along with the process of history and therefore put them straight. I expect the Government to summon up courage to begin with the recognition of this fact. With regard to the recent efforts made by ministries and agencies to make a specific review of the matter, I would like to appreciate the conclusion for revision reached by the Ministry of Health, Labor and Welfare, which encompasses the greatest number of the disqualification clauses, and to expect the draft amendments to be cleared by the Diet (Japanese Parliament).

(*) On August 9, 1999, the Government Task Force for the Promotion of Measures for Disabled Persons (headed by Prime Minister), under the subject of "on the review of the Disqualifying clauses for Disabled", decided to make a sweeping review of the designated 63 measures and adopted a policy for reviewing them.