- Remedies for All Discrimination and Human Rights Violations, and Preparation of Parallel Reports -

Shigeki Nomura
Chairperson of the “Project Team for the Parallel Report Presentation on
the Convention on the Rights of Persons with Disabilities
Japan Federation of Bar Associations

1. Introduction

The Japan Federation of Bar Associations (hereinafter referred to as the “JFBA”) was established in September 1949.  Its members are composed of all Japanese attorneys and bar associations and has as their mission the protection of fundamental human rights and the realization of social justice.

In this article I will share about our activities on the Convention on the Rights of Persons with Disabilities (hereinafter referred to as the “Rights Convention”) centering on the parallel report the JFBA prepared and submitted to the UN Committee on the Rights of Persons with Disabilities (hereinafter referred to as the “Rights Committee”).   Please note that the contents of this article are based on my personal views.

2. Adoption of the “Declaration Calling for the Full Implementation of the Convention on the Rights of Persons with Disabilities” at the Conference on the Protection of Human Rights

The JFBA adopted the “Declaration Calling for the Enactment of the Law Prohibiting Discrimination against Persons with Disabilities” at the Conference on the Protection of Human Rights held in Nara in October 2001.  We continued to urge the ratification of the Rights Convention and the need for domestic legislation, such as the enactment of an anti-discrimination law.

Before ratifying the Rights Convention, Japan revised the Basic Act for Persons with Disabilities and passed the Act to Eliminate Discrimination against Persons with Disabilities (hereinafter referred to as the “Elimination of Discrimination Act”).

It was highly appreciated that the domestic law was developed towards the ratification of the Rights Convention.  However, when the Rights Convention came into effect in Japan in February 2014, the substance of the developed domestic law did not reach the international human rights standards required by the Rights Convention.  In October 2014, in the Conference on the Protection of Human Rights held in Hakodate, the JFBA held a symposium to address its specific deficiencies, and adopted the “Declaration Calling for the Full Implementation of the Convention on the Rights of Persons with Disabilities” (Note 1).

A project team for the parallel report presentation on the Rights Convention was organized in the JFBA, with the members of the executive committee of the above-mentioned symposium at the Conference on the Protection of Human Rights as the core.

3. JFBA’s Parallel Report

On June 19, 2019, the JFBA submitted to the Rights Committee a report entitled, “JFBA’s Report on the First State Party Report Submitted by the Government of Japan Based on the Convention on the Rights of Persons with Disabilities – Matters That Should Be Included in the List of Issues and the Background Situation – ” (Note 2).  On September 23, 2019, we participated in the the Committee’s pre-review briefing held in Geneva and lobbied together with organizations of persons with disabilities, including the Japan Disability Forum (hereinafter referred to as “JDF”).

On October 29, 2019, the Rights Committee adopted the List of Issues (hereinafter referred to as “LOIs”) on the First Report by the Government of Japan.  With the parallel reports and lobby activities by the JDF and the JFBA, the LOIs turned out to be relevant.

In response to the questions presented in LOIs on July 1, 2020, the JFBA submitted to the Rights Committee the “JFBA’s Report based on the Convention on the Rights of Persons with Disabilities (Part 2) – Recommendations That Should Be Included in the Concluding Observations and the Background Situation –” (Note 3).  Since the parallel report corresponds to the LOIs, its contents are thorough and comprehensive.  As there are constraints on the number of words for this article, I would like to focus on remedies and make known JFBA’s activities in this respect, while not being limited to the parallel report.  We specifically discuss remedies because when there is discrimination or human rights violations, attorneys usually seek remedies.

Regarding discrimination on the basis of disability and human rights violations against persons with disabilities, it is necessary to establish a substantive law that clearly shows what constitutes discrimination and what constitutes human rights violations.  On top of that, remedy systems and remedy procedural laws need to be put in place so that remedies can be applied in the event of discrimination or human rights violations.  Although the substantive law is being developed gradually in Japan, it is no exaggeration to say that the remedy system and the legal remedy procedures have yet to be developed further.

Remedies can be divided into judicial remedies and non-judicial remedies.  As for non-judicil remedies, let me first point out the problems of Japan’s current system, and then state the necessity of establishing a national human rights institution and introduce individual communication procedures as an international-standard human rights protection system.

4. Judicial Remedies

The court is the “last bastion of human rights” and there must be no discrimination in court proceedings.  However, the first thing I have to point out is that the national institutions where discrimination is prohibited by the Act to Eliminate Discrimination are only administrative organs, and there is no specific anti-discrimination legislation within the judicial organs.

Article 29 of the Basic Act for Persons with Disabilities stipulates the accommodation of communication in judicial procedures.  However, this act stipulates the basics of measures for persons with disabilities and we cannot say that this act covers all specific rights and obligations.  The Supreme Court has provided directions as internal guidelines, but the directions apply to its personnel only and the prohibition of discrimination in judicial proceedings is not stated.  Article 13 of the Rights Convention requires procedural accommodations in the judicial proceedings as an obligation.  Unless such obligation is clearly stipulated in the Act, it will remain unclear whether the absence of accommodations according to the types of disability is illegal or not.

The current procedural laws such as the Code of Civil Procedure and the Code of Criminal Procedure have no provisions under a legal obligation that procedural accommodations must be provided to persons with disabilities according to their individual needs during civil, criminal and administrative procedures.  As a result, these remain in the control of each judge during court proceedings.  Unlike reasonable accommodations, procedural accommodations are not limited by the concept of “disproportionate or undue burden.”  The Rights Convention clearly separates these two kinds of obligations.

Currently, the national government is in the process of revising the Code of Civil Procedure (related to digitization).  Towards digitization, universal design must be applied and procedural accommodations must be ensured individually.  With the establishment of new provisions of procedural accommodations in the Code of Civil Procedure, we must strongly call for the revision of the Code of Criminal Procedure (which stipulates court proceedings as well as investigation procedures).  In criminal cases, there have been many false accusations where suspects with intellectual disability were convicted based on erroneous records of statement that were prepared without providing the suspects of information accessibility and procedural accommodations.

Article 13 of the Rights Convention is a provision proposed by Japan in the process of establishing the Convention (Note 4) and this Article should be something that Japan should be proud of.  I sincerely hope that Japan will update the domestic law according to Article 13.

5. Non-Judicial Remedies

Remedies in court are expensive and time-consuming.  In addition, most of the remedies are monetary, such as compensation for damages, thus, it is difficult to arrive at the realization of reasonable accommodations.

There is a strong demand for enhanced remedies to be obtained outside the court, where remedies can be familiar and quick, and flexible to reach solutions that are not limited to money.  However, the current system is extremely inadequate, as described below.

Under the Elimination of Discrimination Act, in order to eliminate discrimination among private businesses, competent ministers are required to establish guidelines for each business field (Article 11), and they are given the authority to administer guidance (for example, on requests for reports, advice, instruction and recommendations) (Article 12).  The guidelines stipulate the establishment of consultation services in business, as the acceptance of consultations leads to the need for administrative guidance.  However, due to the vertically compartmentalized structure of the government, the consultation services vary from one office to another, and it is extremely difficult for people with disabilities to deal with them.

Article 14 of the Elimination of Discrimination Act stipulates the establishment of a system to prevent or resolve any disputes, including thorough consultation.  However, it does not require that a new institution be established to work on the mechanism.  Neither does it grant specific authority to local governments for mediation and making recommendations.  The current situation is such that the dispute resolution is left to local governments.  Some local governments have enacted ordinances and established institutions to resolve disputes through consultations and other means, and have given them specific authority for mediation and making recommendations.  However, for local governments that have not established ordinances, it is difficult to effectively resolve individual disputes only with the current law.  As a result, there are regional disparities that should not exist for the remedies of human rights violations.  There is an urgent need to update the national legislation and to include the establishment of a national institution.

As for remedies for discrimination by government personnel, the Elimination of Discrimination Act does not stipulate any provisions to address the actual situation.  If there is a discriminatory act committed by a staff member of a government agency, it may be corrected by creating a mechanism that ensures service discipline within the government agency.  However, since the national and local governments are obliged to prohibit discrimination, based on the State Redress Act it would be necessary to file a lawsuit for compensation.  Remedies for discrimination and human rights violations by government personnel also require a familiar and quick remedy system other than the court.  In cases where the violator is a public servant, it is essential to have a national human rights institution independent of the government, as described below.

We have human rights bodies in the Ministry of Justice as remedy organizations, but they do not have the expertise to provide human rights remedies for persons with disabilities.  Human rights activities carried out intra-ministerially by bodies under the Ministry of Justice are not independent of the government.  On December 20, 1993, the UN General Assembly came up with a resolution called the “Principles Relating to the Status of National Institutions (Paris Principles)”, which requires national human rights institutions to perform their duties independently of the government.  Recalling the harsh fact that eugenic sterilization was performed as a national policy, obtaining the remedies of human rights violations committed by public authority must be done based on international human rights conventions, such as the Rights Convention, and must be exercised by a human rights institution independent of the government.  Otherwise, the realization of such remedies cannot be secured.

It must be noted that the Commission on Policies for Persons with Disabilities (Chapter IV of the Basic Act for Persons with Disabilities) does not have the authority to exercise remedies.

6. Establishment of National Human Rights Institutions and Introduction of Individual Communication Procedures

Article 33, Paragraph 2 of the Rights Convention requires Japan, a State Party, to establish a national human rights institution independent of the government in accordance with the Paris Principles, but Japan has not yet established a national human rights institution.

Moreover, as Japan has not ratified the Optional Protocol attached to the Rights Convention, aggrieved people cannot use the individual communication procedures.

At the Conference on the Protection of Human Rights held in Tokushima in October 2019 (Note 5), the JFBA has adopted the “Resolution Calling for the Introduction of Individual Communication Procedures and the Establishment of a National Human Rights Institution.”

(1)  Establishment of a National Human Rights Institution

To ensure independence from the government, authority over personnel issues, such as appointment and dismissal procedures of the committee members and the secretariat, and authority over finances, such as the budget, must not be placed under government control.

For human rights bodies to function, a national human rights institution must have the authority to investigate facts and public institutions, and it must be able to develop remedies, like mediation and recommendations.

The first State Party Report submitted by the Government of Japan to the Rights Committee in June 2016 states that the Commission on Policy for Persons with Disabilities falls under the framework to promote, protect and monitor the implementation of the Rights Convention stipulated in Article 33(2) of the same Convention.  However, as mentioned above, the Commission on Policy for Persons with Disabilities does not have the authority over remedies (protection).  The authority to monitor is only limited to indirect monitoring by the Basic Programme for Persons with Disabilities, and there is no authority monitoring the implementation of the Rights Convention.  Above all, there is no independence from the government in terms of personnel and finance.

(2) Introduction of Individual Communication Procedures

The Rights Convention has the individual communication procedures stipulated in its Optional Protocol.  According to the procedures, if someone’s rights guaranteed by the Rights Convention have been violated, if the rights are not restored even after completing the remedy procedures, such as conducting trials in your country, he/she can apply for remedies directly to the Rights Committee.  However, individual communication procedures have not yet been introduced in Japan.

Although conventions are placed above the law, Japanese courts are reluctant to use international human rights conventions as the norm.  With the introduction of the individual communication procedures, this situation is expected to change.  The recommendations made by the Rights Committee under the individual communication procedures are not legally binding, though it is possible that the cases handled by a domestic court might be reported to the Rights Committee even after judgment has been rendered.  Therefore, the judges would have to consider the Rights Committee’s interpretation and precedent.  We hope that this will improve the status of court practices in which even internationally established interpretations are given little interest and that the Rights Convention will function as an effective judicial norm.

In this way, if Japan develops an international-standard human rights protection system, both judicial and non-judicial remedies will be realized in accordance with international human rights standards, leading to the full implementation of the Rights Convention.

7. In Conclusion

The Rights Committee will adopt the concluding observations after a constructive dialogue in the review, referring to the responses of the Japanese Government to LOIs and each parallel report.  The JFBA will continue its efforts to further enhance human rights for persons with disabilities in Japan and realize the full implementation of the Rights Convention in utilizing the concluding observations.

[Notes]

1. JFBA: “Declaration Calling for the Full Implementation of the Convention on the Rights of Persons with Disabilities”  October 3, 2014 https://www.nichibenren.or.jp/document/civil_liberties/year/2014/2014_1.html (Reference, June 1, 2021)

2. JFBA: “JFBA’s Report on the First State Party Report Submitted by the Government of Japan Based on the Convention on the Rights of Persons with Disabilities”  [Main edition] Japanese version

https://www.nichibenren.or.jp/library/pdf/activity/international/library/shogai/shogaisha_hokoku_honbun.pdf  (Reference, June 1, 2021)

3. JFBA: “JFBA’s Report based on the Convention on the Rights of Persons with Disabilities (Part 2)”  Japanese version https://www.nichibenren.or.jp/library/pdf/activity/international/library/shogai/shogaisha_hokoku_shiryo2.pdf (Reference, June 1, 2021)

4. Shigeki Sumi “The Road to the Convention on the Rights of Persons with Disabilities – Attending the 3rd Ad Hoc Committee on the Convention on the Rights of Persons with Disabilities” Normalization – Welfare for Persons with Disabilities Vol. 24, Total Vol. 276, p. 36 (July 2004)

5. JFBA: “Resolution Calling for the Introduction of Individual Communication Procedures and the Establishment of a National Human Rights Institution” October 4, 2019 https://www.nichibenren.or.jp/document/civil_liberties/year/2019/2019_2.html (Reference, June 1, 2021)