On May 3, 2007, Japan celebrated the 60th Anniversary of the implementation of the Constitution of Japan (the Constitution). The Japan Federation of Bar Associations (JFBA) has been striving to protect fundamental human rights for all people under the Constitution and International Human Rights Law. This year marked the 50th Anniversary of the JFBA Convention on Protection of Human Rights at which the JFBA reviews the results of its human rights activities and makes recommendations on crucial issues from time to time.
However, today, the freedoms guaranteed in the Constitution
and International Human Rights Law are confronting an era that
is pressing for changes in that foundation. Since the September
11th terrorist attacks, many governments have successively taken
measures supposedly with the purpose of "preventing terror
and crime" or “protecting the security of the people."Even
in Japan legislation has been proposed by the government to
criminalize "conspiracy" and laws have been enacted
revising the Immigration Control and Refugee Recognition Act
so as to allow fingerprinting of foreign nationals upon entry
into Japan and the control and use of the fingerprints thereafter.
Furthermore, an act on the prevention of the transfer of proceeds
from crimes was enacted which requires reporting of suspicious
transactions to police. Local governments are establishing "safety
community" ordinances as countermeasures against the deterioration
of public security. Under these ordinances, people can be punished
for minor breaches of manners. Local governments are also installing
surveillance cameras in cooperation with police authorities
resulting in increased police intervention in private life and
a strengthening trend of community residents monitoring each
other.
The constitutional framework of protection of human rights
allows the state to use its power restrictively to constrain
human rights to a certain level only when a violation of legal
interests or actual danger occurs. However, this framework could
be eroded by the above mentioned measures taken in the name
of prevention of terrorism or crime and the protection of safety.
Moreover, such measures allow the state to interfere with the
details of private lives, collect and integrate personal information,
and monitor personal lives and thoughts. As a result of these
violations of the right of privacy and the fear of surveillance
and regulation, the pillar of democratic society, which is the
freedom of speech and expression, is decaying. Furthermore,
there is also the possibility of fragmenting society by denying
diversity and tolerance in local communities.
Needless to say, we must pursue a society which does not produce
terrorism or crime. However, the protection of fundamental human
rights has been internationally recognized because it is a foundation
for just and peace in the world. Discrimination, poverty, and
an abusive childhood could be background factors that might
predispose someone toward crime. Terrorism is also closely connected
to discrimination, poverty, and the lack of democratic processes
in politics based on the guarantee of freedom of speech and
expression. Therefore, in order to eradicate terrorism and crime,
it is, at this time, imperative that a society where all people
live together by thoroughly guaranteeing human rights, including
civil and political rights, without isolating minorities such
as foreign nationals is realized instead of inviting a chain
of mutual distrust by increasing the level of monitoring.
The JFBA insists that when the state and local governments
plan and undertake measures to prevent terrorism and crime,
respect for fundamental human rights and the guarantee of freedom
should not be considered as minor or subsidiary issues, and
that the freedom of speech and expression and so forth should
not be chilled. From the viewpoint that these issues should
be confronted, the JFBA recommends as follows:
- In order to evaluate whether a measure is necessary to prevent terrorism and crime, objective analysis should be performed concerning what legal interest is in danger with what concrete possibility. Even when such a measure is found to be necessary, the state and local governments should still examine closely whether the measure limits human rights only to the minimum extent and whether the limitation complies with clear criteria.
- The bill to criminalize conspiracy should be abandoned because it will destroy the modern criminal justice system in Japan which allows the state to use its power only when there is an infringement of a legal interest or when there is a concrete possibility of such infringement. Furthermore, the bill will undermine the freedom of speech and expression.
- The state and local governments are seeking the establishment of a system which allows the government to obtain, integrate, and use personal information. Such a system could be formed using the Basic Resident Register Network System, the immigration and residential control of foreign nationals, sharing information with foreign countries, and obligating employers and citizens to report personal information. Article 13 of the Constitution respects individuals and guarantees the pursuit of happiness which includes the right to control personal information. From this standpoint, the revised Immigration Control and Refugee Recognition Act should be reviewed and such integration and use of personal information should be strictly regulated. Specifically, the police should be prevented from using personal information to monitor personal lives and thoughts.
The JFBA also requests that an independent body authorized to investigate the collection, storage, and use of personal information by the state and local governments and to make corrective orders be established.
- Restrictions should be imposed on police activities such as the intrusion into private lives to obtain information and the encouragement of people to monitor each other, considering that the authority to conduct criminal investigations is connected to the authority to use compelling force. At the same time, it is essential to eliminate discrimination and prejudice, enhance social security, and expand human and material resources for educational and medical measures in order to realize a society where diversity and tolerance are secured and all people are able to live together.
On the occasion of the 50th anniversary of the JFBA Convention on Protection of Human Rights, the JFBA emphasizes the importance of realizing the human rights protections established by the Constitution and international human rights law. The JFBA also declares that it will make every effort to protect human rights including freedom of speech and expression and so forth, personal liberty, the right to live, and the elimination of all discrimination. Through its efforts, the JFBA will strive to create a free and safe society.
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