– JCLU Proposes Anti-Discrimination Law

by Arudou Debito

The Japan Civil Liberties Union (jclu@jclu.org, http://www.jclu.org), a group of lawyers and legal experts (who have been of fundamental help in defining Japan’s hazy Freedom of Information Act and pursuing the Otaru Onsens Case), released yesterday a proposal for a law eliminating racial discrimination in Japan.

This is not before time. Japan is the only OECD country without a law banning racial discrimination, and it shows (http://www.debito.org/otarulawsuit.html). Forwarding. Comments to the JCLU Ima ga shun. Read this over and digest very carefully (can you see any potentially overlooked cases or legal loopholes which should be filled?), because this may very well become law.

This proposal is to help make Japan a better place for everyone to live. We should give our input as constructively as possible. Thanks very much. Arudou Debito in Sapporo (debito@debito.org, http://www.debito.org)

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>From: Hirohiko Takasu
>Reply-To: h_takasu@jca.apc.org
>Subject: RELEASE OF: PROPOSED OUTLINE FOR LAW
ON THE ELIMINATION OF RACIAL DISCRIMINATION
>Date: Mon, 19 May 2003 17:41:19 +0900

If you have any ideas or questions about PROPOSED OUTLINE FOR LAW ON THE
ELIMINATION OF RACIAL DISCRIMINATION, please mail to jclu@jclu.org
—————————————————————–
RELEASE OF:
PROPOSED OUTLINE FOR
LAW ON THE ELIMINATION OF RACIAL DISCRIMINATION
(Draft Proposal Ver. 1 of JCLU Subcommittee for the Rights of Foreigners)

After much discussion, Japan ratified the International Convention on
the Elimination of Racial Discrimination in 1996. However, the position
of the Japanese government has been that, “We do not recognize that the
present situation of Japan is one in which discriminative acts cannot be
effectively restrained by the existing legal system or in which explicit
racial discriminative acts, which cannot be restrained by measures other
than legislation, are conducted; therefore a law prohibiting racial
discrimination and other legislation is not considered necessary.”

[NB from Arudou Debito, to clarify for non-native speakers of English:
“The GOJ believes that the existing systems in Japan can restrain explicit
racial discrimination. Therefore explicit legislation banning racial
discrimination is not necessary.”]

(Comments of the Japanese Government on the Concluding Observations of
the United Nations Committee on the Elimination of Racial Discrimination
regarding report and examination of the Japanese Government).

Nonetheless, as the number of foreigners living in Japan continues to
increase year to year, in reality there exists strongly-rooted racial
discrimination here, which includes discrimination against foreigners in
labor, housing, the provision of services, and various other areas. In
the Hamamatsu Jewelry Store foreigner exclusion case and the Otaru Onsen
racial discrimination case, claims seeking compensation from the
proprietors of discriminating businesses were upheld based on the
International Convention on the Elimination of Racial Discrimination.

However, such cases are just the tip of the iceberg. Relief under the
Convention and in the courts, by themselves, are clearly inadequate for
the elimination of discrimination. To truly do away with discrimination,
we need to specify and define clear rules as to what constitutes
unacceptable discrimination, clarify the responsibility of national and
local governments in the elimination of discrimination, and enhance
relief measures.

As evidenced by discrimination against foreigners, the existing
mechanism for the protection of human rights centered on the
Constitution and the courts is inadequate to provide relief for actually
occurring abuses of human rights, and as such there are heightened calls
for the creation of new mechanisms. Currently, debate is underway
concerning the establishment of a domestic human rights body, but the
fact of the matter is that nearly no debate has ensued concerning
substantive law that will be applicable to such a body.

This subcommittee has targeted the enactment of substantive law for the
elimination of racial discrimination as one facet of new and effective
human rights protection mechanisms, and the members set forth below have
prepared a draft proposal outline therefor. “Buraku” discrimination and
other serious discrimination based on traits other than race also exist
in Japan, but we believe that the coverage of all discrimination under
one law is not necessarily appropriate since each form of discrimination
has its own characteristic aspects. As such, this subcommittee focused
on the issue of discrimination against foreigners, and drafted a special
law concerning racial discrimination which also addresses discrimination
against foreigners.

Premised on the establishment of a truly independent national human
rights body, for the time being we will assume that such a body will
implement the racial discrimination elimination law. While it is
necessary to also examine and propose specific relief procedures,
initially we will propose the substantive law as a springboard for
debate, and subsequently we will examine procedural issues.

Furthermore, the repeal of the nationality clause of the Livelihood
Protection Law and measures for the realization of civil service
employment rights are necessary in the event this racial discrimination
elimination law is enacted. In addition, depending on the manner in
which relief measures are prescribed, reservations concerning Article
4(a) and (b) of the International Convention on the Elimination of
Racial Discrimination may have to be withdrawn.

This proposed outline was prepared as a springboard for debate, and we
request your opinions towards improving the proposed outline.

March 15, 2003
Japan Civil Liberties Union
Subcommittee for the Rights of Foreigners
Shun Hashiba (Attorney at Law)
Akira Hatate (Labor Issues Researcher)
Toshiaki Fujimoto (Lecturer at Kanagawa University)
Mie Fujimoto (Attorney at Law)

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PROPOSED OUTLINE FOR
LAW ON THE ELIMINATION OF RACIAL DISCRIMINATION
Draft Proposal Ver. 1 of JCLU Subcommittee for the Rights of Foreigners

1. Purpose
This Law seeks to contribute to the realization of a society that
respects those human rights recognized under the Constitution and
international law, by eliminating racial discrimination through the
prohibition of racial discrimination by all persons and the enactment of
measures designed for the relief and prevention of harms therefrom.

2. Definitions
In this Law, the term “Race” shall mean race, color of skin, ethnicity,
nationality or national origin.

In this Law, the term “Racial Group” shall mean any group comprised of
persons who share a specific Race.

In this Law, the term “Public Official” shall mean any staff member of
national or local public entities, and persons otherwise engaged in
civil service pursuant to law or ordinance.

In this Law, the term “Racial Discrimination” shall mean the following actions:

(1) (Direct Discrimination) Treating any person at a disadvantage to
others in the same circumstances, based on Race;

(2) (Indirect Discrimination) In comparison to others, the application
of an apparently neutral rule or standard working to the disadvantage of
a person belonging to a specific Racial Group. Provided, however, that
the foregoing shall exclude instances in which said rules or standards
are objectively justifiable for a reasonable purpose, and the means for
achieving said purpose is both necessary and appropriate;

(3) (Harassment) Acts related to Race, that have the purpose or effect
of intimidation, insult, derision, or the creation of an otherwise
unpleasant environment, or that have the purpose or effect of damaging
the dignity of specific person(s) shall be deemed as discrimination
under Paragraph (1).

The following acts shall not constitute Racial Discrimination:

(1) To the extent necessary for the purpose, differing treatment in
cases where different treatment based on nationality is truly unavoidable;

(2) In cases in which by the nature of a certain occupation,
characteristics related to a specific Race correspond to definitive
working conditions, the purpose for the establishment of said conditions
is just, and the conditions are proportionate to the purpose, the
differing treatment based on said characteristics;

(3) Special measures enacted for the purpose of preventing or rectifying
disadvantages related to Race.

3. General Prohibition of Discrimination

No person shall suffer Racial Discrimination.

4. Specific Areas

[Labor]

1) Employers must not engage in Racial Discrimination in the following
matters or otherwise in connection with labor contracts:

(1) Recruitment and hiring;
(2) Work hours, wages, days off and leave, work safety and sanitation,
and other labor conditions;
(3) Assignments and promotions;
(4) Education and training;
(5) Benefits;
(6) Mandatory retirement, resignations and dismissals

2) Job placement organizations, job training organizations and
organizations granting qualifications must not engage in Racial Discrimination.

3) Labor unions, employer groups, and other occupational groups must not
engage in Racial Discrimination for entry into said groups and in the
treatment as members of such groups.

4) National and local public entities must not engage in Racial
Discrimination, including in matters of hiring and promotions.

[Medical Treatment and Social Security]

1) All persons shall have the right to enjoy physical and mental health
to the maximum level attainable, free of Racial Discrimination.

2) All persons shall have the right to receive medical treatment as
required in emergencies to sustain life and prevent irreversible health
injuries, free of Racial Discrimination. Such emergency treatment must
not be refused based on grounds of undocumented residency or employment.

3) All persons shall have the right to participate in health insurance,
welfare pension insurance, National Health Insurance, and the National
Pension Plan free of Racial Discrimination.

4) All persons shall have the right to receive protection of livelihood
free of Racial Discrimination. Provided, however, that the foregoing
provision shall not apply to foreigners who have resided in Japan for
less than one year.

5) All persons shall be able to enjoy rights related to child welfare,
maternal and child health, pediatric healthcare, healthcare for
infectious diseases, welfare services for the disabled, welfare services
for seniors, public health, and the like, free of Racial Discrimination.

[Education]

1) No person shall suffer Racial Discrimination in any form or at any
stage in education.

2) National and local public entities must utilize all appropriate
methods in an effort to fulfill the special needs associated with
specific Racial Groups, including opportunities to receive ethnic
education, education of native languages, and education of the Japanese
language.

3) In no form and at no stage will education include content which
encourages Racial Discrimination. In particular, school-based education
must be oriented towards the elimination of racial discrimination.

[Housing]

No person shall suffer Racial Discrimination in the disposal (including
purchase and sale) of, or the use (including renting) of, real estate
for business use or housing for oneself or one?[ƒRs family.

[Provision of Goods, Etc.]

No person shall suffer Racial Discrimination in connection with the
receipt of any goods or services provided for public use including
retailers, transportation, accommodation, food and beverage
establishments, playhouses, and parks.

[Participation in Groups]

No person shall suffer Racial Discrimination in joining, withdrawing or
in the treatment as a member of those groups for which the public are
eligible to become members.

5. Prohibition of Discrimination and Incitement of Discrimination by
Public Officials

Public Officials must not engage in Racial Discrimination in their
positions as persons engaged in public service.

Public Officials must not incite Racial Discrimination against any
person. Incitement shall mean working to cause or bring about the
likeliness of a decision to carry out a specific act against a person,
regardless of whether through instructions, orders, solicitations or
other methods.

6. Responsibilities of National and Local Public Entities

The national government shall be responsible for the comprehensive
promotion of policies for the realization of the human rights recognized
under the Constitution and international law through the elimination of
Racial Discrimination.

Local public entities, in an effort to eliminate Racial Discrimination
in regional societies, shall give due consideration to the effect of
this Law in the administration and affairs of the local public entity,
shall enact ordinances, and shall otherwise be responsible for the
comprehensive promotion of policies for the elimination of Racial
Discrimination at local public entities.

7. Publicity and Promotion of Awareness of the Law

National and local public entities must widely promote awareness of
this Law by adopting adequate and affirmative publicity measures, and
must provide all persons with easy access to information concerning this
Law.

8. International Human Rights Law as a Supplemental Means for the
Interpretation of the Law

In the interpretation and application of this Law, consideration shall
be given to general interpretations and applications internationally
recognized in connection with the International Covenant on Human
Rights, the International Convention on the Elimination of Racial
Discrimination, and other conventions related to human rights.