Preface

A NOTE FOR THE PUBLICATION OF THE RECORD OF THE HUMAN RIGHTS COMMITTEE BY MR. KOHKEN TSUCHIYA PRESIDENT OF THE JAPAN FEDERATION OF BAR ASSOCIATIONS (JFBA)

On October 27 and 28, 1993, at the United Nations European Headquartersin Geneva, Switzerland, the Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR) reviewed the Third Periodic Report of the Government of Japan. This publication is the full and verbatimrecord of that examination.

On the occasion of the review of the report of Japan, the Japan Federationof Bar Associations (JFBA) sent a seven member delegation to Geneva, whichobserved the whole dialogues of the Committee. Prior to this, the JFBA hadsubmitted its own counter report for the reference of the Committee.

The JFBA counter report and the full record of examinations of the nationalreport of Japan by the Human Rights Committee had already been publishedby the JFBA in Japanese in September 1993 and May 1994 respectively, byKouchi Shobo publishers, Tokyo.

Recently, however, we have learned that, partly due to budgetary difficulties,the United Nations would be unable to publish even a summary record of themeetings of the Committee, with the possibility that both the Committeeand its members would be impeded by their general responsibilities.

Under these circumstances, the JFBA determined to assist by publishing anEnglish version of the examination of the periodic report of Japan, believingthat this would contribute to the activities of the Committee and its members.We thought that, as part of our international human rights activities, thispublication would provide a practical contribution to the cause of internationalhuman rights. Based on our past experience, it would be extremely usefulfor human rights NGOs of the world to know how an examination in the HumanRights Committee was actually conducted.

I sincerely hope that this book will be referred to by as many people aspossible and be used for the effective implementation of the ICCPR in manycountries.

Finally, on behalf of the JFBA, I would like to extend my sincere thanksto Professor Makitaro Hotta of Ritsumeikan University, who has given usassistance not only in this publication but also in the submission of JFBAcounter report, observation of the examination by the Committee, publication of the Committee record, and in other human rights activities of the JFBA.

Tokyo Kohken Tsuchiya

March 10, 1995 President, Japan Federation of

Bar Associations (JFBA)

EDITOR'S PREFACE

This record is compiled and edited for the Human Rights Committee of theInternational Covenant on Civil and Political Rights (ICCPR) under the auspicesof the Japan Federation of Bar Associations (JFBA). The proceedings arereproduced from 16 original English and 16 Japanese audio tapes providedby the Center of Human Rights, United Nations, Geneva, through the Ministryof International Affairs, Government of Japan.

In the record, those statements of the members of the Committee (and partlyby the members of the Japanese Delegation) spoken in English (or simultaneouslytranslated into English by official interpreters of the Conference Divisionof the United Nations) are verbatim and recorded as they were spoken. Thosespoken in Japanese, on the other hand, are basically reproduced directly from the simultaneous English interpretations of two Japanese interpretersprovided by the Japanese Government. However, since there were many discrepanciesbetween those spoken in Japanese and those interpreted into English, theeditor felt it necessary to give preference to the English version of interpretationsof the statements concerned, including a minimum correction of the textin question, using the statements of the Delegation of Japanese Governmentmade in Japanese as reference.

For the sake of convenience of readers, SECTION HEADS (explaining the contentsof the dialogue) and paragraph numbers are added, both of which correspondwith those used in the Japanese version of the record published by the JFBAin 1994 in the following publication: JFBA, Human Rights in Japan Questionedin the International Forum---Geneva 1993 ("Sekai ni Towareta Nihonno Jinken, Junehbu 1993")(Tokyo: Kouchi Shobo, May 1994).

A counter-report of the JFBA was originally submitted for reference to the Human Rights Committee in December 1991, and a three part counter reportwas sent to the Committee later in April 1993. The latter report in English,"A Report on the Application and Practice in Japan of the InternationalCovenant on Civil and Political Rights (Tokyo, JFBA, 1993)" is availabledirectly from the JFBA, or in its Japanese version: "Towareru Nihonno Jinken" (Tokyo: Kouchi Shobo, September 1993).

Finally, the editor would like to thank Mr. Kohken Tsuchiya, President,JFBA, and the Secretariat of JFBA for the opportunities and assistance,and would also like to thank Mr. Andrew Williams, Mrs. Barbara Edgington,Ms Momoko Hotta and Mr. Mitsushi Sugihara for their editorial support andassistance.

Ritsumeikan University, Kyoto Makitaro Hotta

March 12, 1995

HUMAN RIGHTS COMMITTEE Forty-ninth session

LIST OF ISSUES TO BE TAKEN UP IN CONNECTION WITH THE CONSIDERATION OF THETHIRD PERIODIC REPORT OF JAPAN (CCPR/C/70/Add. 1)

I. Constitutional and legal framework within which the Covenant is implemented;non-discrimination, equality of the sexes, protection of the family andrights of persons belonging to minorities (articles 2, 3, 4, 5, 23, 24,26 and 27)

(a) With reference to paragraphs 12 to 18 of the report, please providefurther information on cases where provision of the Covenant have been directlyinvoked before the courts, and on how conflicts between domestic legislationand the Covenant are being resolved.

(b) Please elaborate on the compatibility of the restrictions provided forin articles 12 and 13 of the Constitution to protect "public welfare"with the Covenant (see paras. 5 and 6 of the report).

(c) What has been the result of the study undertaken by government institutioninto the problems still being faced by Japan with regard to the possibleratification of the Optional Protocol (see para. 86(d) of the report)?

(d) What legal mechanisms are available to persons who claim that their rights and freedoms under the Covenant have been violated to seek an enforceableremedy determined by a competent authority, in accordance with article 2,paragraph 3, of the Covenant?

(e) What measures are being undertaken or planned to eliminate discriminationbetween men and women, in particular relating to the status of divorcedwomen and unmarried mothers, including the position of women employed inthe public and private sectors?

(f) In the light of the Committee's general comment No. 15(27), please clarifywhether all aliens enjoy all the rights pertaining to them under the Covenant.

(g) Please clarify what concrete measures have been taken, and with whatresults, to improve the situation of nationals of the Republic of Korearesiding in Japan, following the conclusion of a Memorandum between Japanand the Republic of Korea, in the fields of residence, employment and education (see paras. 38 to 51).

(h) What means have been taken to improve the situation of members of theBuraku community throughout Japan? Has the adoption of three special lawsin favor of residents of Dowa districts led to any measurable progress todate? If so, please provide relevant details.

(i) Please elaborate on the remaining difficulties faced by persons belongingto the Ainu minority as well as on the "comprehensive" measuresintroduced under the Hokkaido Utari Welfare Plan (see para. 234 of the report).

(j) What is the legal situation of children born of wedlock?

II. Right to life, treatment of prisoners and other detainees, liberty andsecurity of the person and right to a fair trial (articles 6, 7, 8, 9, 10,11, 14 and 15)

(a) Are there any plans to revise the relevant laws with a view to curtailingthe number of offenses punishable by the death penalty?

(b) Have there been any complaints, during the period under review, of torture or inhuman treatment by public officials (see para. 113 of the report)?If so, what measures have been taken to punish those found guilty, to providecompensation to the victims and to prevent the recurrence of such acts?

(c) Please clarify under what circumstances a person may be sentenced toforced labor under article 12 of the Penal Code or detained in a workhouseunder article 18 of the Penal Code and provide further information on theconditions of such imprisonment (see para. 125 of the report).

(d) Please provide further information on the maximum duration of detentionbefore indictment and comment on its conformity with the provisions of article9, paragraph 3, of the Covenant. In this connection, please clarify whatis meant by the term "ordinary cases" in paragraph 136 of thereport.

(e) Please clarify what remedies are available to a person who has beencommitted to a psychiatric institution upon a decision of a prefectural governor or the Psychiatric Review Board (see paras. 130 to 132 of the report).

(f) Please clarify whether a person detained by the police can immediatelycontact his family and a lawyer and what the powers of the prosecutor arein that regard.

(g) Please elaborate on the content of the Police Custodial Facility Billreferred to in paragraph 161 of the report. Do the provisions of the Billapply both to pre-trial detention and to the serving of a sentence of imprisonmentfollowing conviction?

III. Freedom of movement and expulsion of aliens, freedom of religion, expression,association and assembly and right to privacy (articles 12, 13, 17, 18,19, 20, 21 and 22)

(a) Please clarify whether the lodging of a kokoku appeal against a deportationorder has suspensive effect (see para. 55 of the report ).

(b) Please provide information on the law and practice relating to telephonetapping and the use of listening devices.

(c) Please elaborate on the functions and activities to date of the Management and Co-ordination Agency established under the "Act for Protection of Computer-processed Personal Date held by Administrative Organs"of October 1989 (see para. 186 of the report).

(d) Please provide information on the controls exercised on freedom of thepress and mass media.

(e) Please elaborate on the restrictions to the freedom of expression andthe freedom of association and assembly.

Publication Data:

Date of Publication: March 21, 1995.

Publisher: Kohken Tsuchiya, President,

The Japan Federation of Bar Associations

(JFBA)

1-1, Kasumigaseki 1-chome, Chiyoda-ku,

Tokyo, 100, Japan

This issue is available from:

Human Rights Office, Legal System Division

The Japan Federation of Bar Associations:

Telephone, 81 (Japan)-3-3580-9841

Fax, 81 (Japan)-3-3580-2866188

HUMAN RIGHTS COMMITTEE Forty-ninth session

Members of the Human Rights Committee as of October 1993 were as follows:

Mr. Nisuke ANDO, Chairman, Japan.

Mr. Francisco Jose AGUILAR URBINA, Costa Rica.

Mr. Marco Tulio BRUNI CELLI, Venezuela.

Ms. Christine CHANET, France.

Mr. Vojin DIMITRIJEVIC, Yugoslavia.

Mr. Omran EL-SHAFEI, Egypt.

Ms. Elizabeth EVATT, Australia.

Mr. Laurel B. FRANCIS, Jamaica.

Mr. Kurt HERNDL, Austria.

Ms Rosalyn HIGGINS, United Kingdom.

Mr. Rajsoomer LALLAH, Mauritius.

Mr. Andreas V. MAVROMMATIS, Cyprus.

Mr. Birame NDIAYE, Senegal.

Mr. Fausto POCAR, Italy.

Mr. Julio PRADO VALLEJO, ECUADOR.

Mr. Waleed SADI, Jordan.

Mr. Bertil WENNERGREN, Sweden.

Members of the Delegation of the Governmentof Japan were as follows:

Mr. Tetsuo ITOH, Minister, Permanent Representative

to the International Organizations in Geneva.

Mr. Toshio KUNIKATA, Director, Human Rights and Refugees

Office, General Diplomatic Policy Bureau, Ministry of

Foreign Affairs.

Mr. Hiroshi MITANI, Director, General Affairs Office,

Correction Bureau, Ministry of Justice.

Mr. Jun WATANABE, Director, International Affairs Office,

Criminal Affairs Bureau, Ministry of Justice.

Mr. Masahiro ONO, Detention Management Officer, General

Affairs Office, Bureau of Secretary, National Police

Agency.

Mr. Keiichi AIZAWA, First Secretary, Permanent Represent-

ative to the International Organizations in Geneva.

Mr. Tatsuya NAGAI, Deputy Director, Office of

International Criminal Affairs, Criminal Affairs

Bureau, National Police Agency.

Mr. Yasuhisa MIZUNO, Office of Regional Improvement and

Measures, Bureau of Secretary, General Affairs Agency.

Mr. Ken GOTOH, Public Prosecutor, Human Rights and

Refugees Office, General Diplomatic Policy Bureau,

Ministry of Foreign Affairs.

Mr. Tsutomu TAKAGUCHI, Human Rights and Refugees Office,

General Diplomatic Policy Bureau, Ministry of Foreign

RECORD OF THE 1277TH MEETING

Held at the Palais des Nations, Geneva, on Wednesday, 27 October 1993, at 10:00a.m.
Chairman: Mr. Dimitrijevic
The meeting was called to order at 10:00a.m
Third Report of Japan (CCPR/C/70/Add.1 and Corr.1)

1. At the invitation of the Chairman, Mr. Itoh, Mr. Kunikata, Mr. Mitani, Mr. Watanabe, Mr. Ono, Mr. Aizawa, Mr. Nagai, Mr. Mizuno, Mr. Gotoh, Mr. Takaguchi, Mr. Tomita (Japan) took places at the Committee table.

2-3. (The Chairman introduces members of the Delegation of the Japanese Government.)

4. The Chairman. The (Japanese) government has already obviously tried to bring people here who are competent in various fields of human rights implementations.

(2) THE PROBLEM OF INTERPRETATION IN JAPANESE

5. The Chairman. Before we start to proceed, I would like to make the following explanation and announcement. At the cost of the government of Japan, the proceedings will be interpreted from Japanese into other languages and from other languages into Japanese. But it is the wish of the interpreters and it is also for the proper conduct of business, it should be noted that this interpretation is not an official one, so whatever is taken a note of or recorded here can be used only to refresh the memory, but not to quote as an official statement of those who have been interpreted from Japanese or into Japanese. I hope this is clear.

6. I should like now to turn to the distinguished delegation of Japan and remind them of our procedure following the periodic reports. The delegation has received in due time a list of issues relating to the report, a list of issues that they wish, a list of questions more or less that the Committee has established in advance for them to reply. Of course after the government delegation replies to chapters from this list of issues, the members of the Committee are free to put additional questions and it is expected that the members of the delegation will provide immediately the answers. But, before replying to the chapter one of the list of issues, the delegation has the right if they so wish to make an introductory statement.

7. I beg your pardon? Point of order, Mr. Mavrommatis. After I finish? Thank you. So, before, as I said, giving replies on chapter one of the list of issues the delegation of Japan can, if they so wish, make an introductory statement and I welcome them to do so, and I will give the floor to the delegation as soon as we hear Mr. Mavrommatis who has a point of order. Mr. Mavrommatis, you have the floor.

8. Mr. Mavrommatis. Thank you, Mr. Chairman. Allow me to interrupt the Chairman, it was only meant after you finished. Mr. Chairman, I did not quite understand the thing about the interpretation from Japanese. Are we denied from using, if necessary, the tapes so as to transcribe something if this is possible, because if that is the case, then I do not think that this would be a proper particular procedure to follow. We do want to help of course to have it but I don't think it would be a proper procedure to follow. Thank you.

9. The Chairman. Thank you, Mr. Mavrommatis. As I understand it, the situation is the following: The interpreters themselves do not want to take the responsibility of attributing to them something that should be quoted as a definitive official translation. So it is in this sense that this is an assistance for understanding, everybody is entitled to use it, everybody is entitled to take notes, even to record, but this can not be taken as a definitive official translation of the proceedings here. So, I think this is the situation. Mr. Pocar.

10. Mr. Pocar. Thank you, Mr. Chairman. I do not know whether I got exactly what Mr. Mavrommatis wanted to have. I think the core of his question is to know what language goes on the tapes. I thank you.

11. The Chairman. Thank you, Mr. Pocar. Before I provide the answer, Mr. Lallah, do you still want to speak? Yes, Mr. Lallah.

12. Mr. Lallah. Thank you, Mr. Chairman. What troubles me is: what about our institutional memory? Would this be part of the proceedings of the work of the Committee for future reference? This is the aspect which bothers me because it is used not only here by us, but by the outside world, the academics, the people who are concerned and the government itself and as part of the documentation of the Committee. Thank you, Chairman.

13. The Chairman. Thank you, Mr. Lallah, and, Mr. Aguilar.

14. Mr. Aguilar. Thank you, Mr. Chairman. I also have some concerns about this. We are told that the translation into Japanese or from Japanese to any of the official languages will not be authentic, (or) will not be definitive. I presume (that) the delegation is going to be speaking in Japanese; that is what I understood you to say and so, what is going to be the official language for our records of the statement of the delegation? Thank you.

15. The Chairman. Thank you, Mr. Aguilar. The situation is the following: From the information I gathered in the meanwhile, that the tapes, the official tapes provided, taken by the secretariat and the conference services, they are the basis for future reference, and they are taken in the original language, in the English translation. What I said did not concern these official tapes because they are subject to corrigenda later. So, what remains in the records is taken care of. My words were addressed and that is what the interpreters wanted to people in the room who will take, or may tape what they hear in Japanese and the interpreters, in the sense of feeling of responsibility. (I) wanted to say that their interpretation is a provisional rendering of what they heard, and it can not be quoted as an official source.

16. And, as for the official records of the United Nations and of the Committee, this will be taken care of in the normal way and subject to corrigenda, so that there will be no difficulties. I think we can be satisfied with this. Thank you very much.

(3) INTRODUCTORY STATEMENT BY THE PERMANENT REPRESENTATIVE OF JAPAN TO THE INTERNATIONAL ORGANIZATIONS IN GENEVA

17. The Chairman. And I will call on the delegation of Japan to make an introductory statement if they wish so. Thank you.

18. Mr. Itoh. Mr. Chairman, distinguished members of the Human Rights Committee. On behalf of Ambassador Endo, permanent representative of Japan to the international organizations in Geneva, who is unfortunately out of the country at the moment, I would like to express my sincere gratitude to the Committee for having provided me with this opportunity to make a short statement.

19. Mr. Chairman, we share the view of many countries that human rights are universal values common to all mankind. He noted to protect and promote human rights wherever it is in the world. We believe that it is essential that the international community including Japan observe the fundamental principles contained in the human rights instruments of the United Nations. In this context, the Japanese Government recognized the importance of the International Covenant on Civil and Political Rights, to which it has been a state party since 1979. Japan has been extensively involved in the human rights activities organized by the United Nations. Most recently, it has actively participated in the World Conference on Human Rights held in Vienna in June (1993), which highlighted the efforts of the United Nations to promote human rights around the world. We are gratified that the Conference concluded successfully with the adoption of the Vienna Declaration Program of Action, in which the importance of strengthening the United Nations Center for Human Rights as well as the consideration of the question of the establishment of a High Commissioner for Human Rights was stipulated, both of which our Government fully supports.

20. The Japanese Government appreciates the important role of the Committee, whose peaceful purpose is to render the implementations of those human rights that are recognized in the Covenant. We also highly appreciate the fact that the Committee continues to have constructive dialogues with each state party through consideration of the reports. We believe that this dialogue contributes to the search for solutions to the problems faced by state parties so that the human rights enshrined in the Covenant may be fully realized.

21. We attach a particular importance to this round of consideration by the Committee of the report of our Government, which is the third one. We have therefore sent a substantial delegation composed of experts well versed in administrative practices so as to be able to respond to any question raised by members of the Committee in full recognition of our obligations under the Covenant.

22. Mr. Chairman, since you have kindly introduced the members of our delegation, I will not go through it again. I merely want to say that we sincerely hope that the constructive dialogue between the Committee and our delegation today and tomorrow will be conducted with frankness and openness and prove to be most useful and informative for both sides. Now, I would like to ask Mr. Kunikata to take the floor to deliver the general statement on the report of the Government of Japan. Thank you, Mr. Chairman.

(4) GENERAL INTRODUCTORY STATEMENT OF THE DELEGATION OF THE GOVERNMENT OF JAPAN

23. Mr. Kunikata. Mr. Chairman, distinguished members of the Human Rights Committee, on behalf of the Japanese Government, I would like to express our sincere gratitude to the Human Rights Committee for inviting our delegation to this meeting.

24. We firmly believe that human rights are universal values and our Government is fully committed to the respect for an d promotion of human rights. In this connection, we highly appreciate the role of the Human Rights Committee in the promotion of human rights on a global basis. It has actively considered many periodic reports from state parties to the International Covenant on Civil and Political Rights and remarkably contributed to the enhancement of the awareness of human rights as well as the actual promotion of human rights around the world.

25. After the ratification of the International Covenant on Civil and Political Rights in 1979, the Government of Japan has been faithfully implementing its obligations under the Covenant. Despatching a rather large delegation from Tokyo for the consideration of Japanese third periodic report clearly demonstrates that our Government attaches great importance to this opportunity. We have also individual experts in the various important bodies of the United Nations concerned with human rights: for example, Professor Ando in this Committee; a public prosecutor, Miss Taya, on the Committee on Economic, Social and Cultural Rights; Professors Hatano and Yokota in the Sub-commission on Prevention of Discrimination and Protection of Minorities; and the Minister of Education, Ms Akamatsu, on the Committee on the Elimination of Discrimination Against Women. Also, we are proud of the fact that Mme Ogata is now in the post of the United Nations High Commissioner for Refugees. We hope that these distinguished experts as individuals in their personal capacity would contribute to the development of human rights.

26. We believe that human rights in Japan as a whole are protected satisfactorily. However, perfection is difficult to be found in anything especially in the area of human rights. We do not believe that the problems can be settled immediately, but we would endeavor to solve them.

27. The Government of Japan devotes much effort to the work of publicizing human rights. Every December since 1949, we have observed 'Human Rights Week' as a means of raising people's consciousness in this area. This year, Human Rights Week falls on the forty-fifth anniversary of the Universal Declaration of Human Rights, and we will hold commemorative ceremonies and symposiums which will be well publicized.

28. The national institutions of the Ministry of Justice, which exist to protect and promote human rights, are actively engaged in a wide range of activities in cooperation with around 13,000 civil commissioners for the protection of fundamental human rights. These activities range from investigation of cases human rights violations to public information and educational programs. Although investigations conducted by the national institutions are not compulsory and expositions are advisory in nature, they attempt to prevent cases of human rights violations and we believe this to be one of the best methods to promote and protect human rights.

29. In Japan, there are also various (private) organizations actively engaged in protecting human rights. One of these organizations is the Japan Federation of Bar Associations. Unlike bar associations in other countries, the Japan Federation is a completely non-governmental organization in that it is composed solely of lawyers in private practice, and all judges, public prosecutors, and a great majority of law professors are not members of the Association. We are aware that many NGOs have published reports for consideration at this meeting. And, in so far as they are accurate report and fairly judge human rights conditions in the country, the Government of Japan is willing to consider them seriously.

30. Mr. Chairman, in preparing this report, we have made the utmost effort to incorporate the purport of the Committee's general comments and the concluding observations of the Committee members at the previous sessions. However, if there are any matters that are not addressed in this report, we are prepared to address them here.

31. I would now like to briefly explain the six main areas referred to in our third report, in which progress has been made since the previous consideration of our report.

32. First, in January 1991, a memorandum was concluded describing the measures to be taken by the Japanese Government for the improvement of the status of Korean residents in Japan.

33. A second area relates to the acceptance of foreign workers. In June 1988, the Japanese cabinet adopted the basic employment measures plan, which states that workers with special or technical abilities had to be accepted in Japan. In line with this policy, the Government has revised its Immigration Control and Refugee Recognition Act, so that more foreigners with professional skills might work in Japan and has subsequently issued a greater number of entry permits. The revised Immigration Act, which came into effect in June 1990, also calls for the prosecution of brokers who profit from the employment of illegal workers.

34. The third example of progress in the area of human rights is the Child Care Leave Law, which came into effect on April 1, 1992. This statute enables both male and female workers to take child care leaves in order to rear children. As now women are entering the work place, such a system enables women to contribute to work and rear children at the same time.

35. The fourth instance of progress concerns international private law. In 1989, amendments were made to the Law Concerning the Application of Laws so that full male/female equality is secured.

36. Progress is to be found in the improvement of women's position as well, which we regard to be essential for eliminating discrimination against women. In this regard, we have strengthened activities to promote substantial equality between men and women through the median-term measures of the new plan of action for the advancement of women revised in May, 1991 and are to be implemented during the five years period from 1991 to 1995.

37. Last but not least, the 'Act for Protection of Computer Processed Personal Data Held by Administrative Organs' which came into effect in 1989 entitles anyone to request data about him- or herself that are kept in the personal data files held by the administrative organs.

38. We have presented the Committee an additional document, CCPR/C/70/Add.1 and Corr.1, to describe the progress Japan has made in the human rights area since the submission of its Third Periodic Report. It makes the following two main points. The first point relates to the fingerprinting system of Japan concerning immigration control. It is necessary to provide some background here. In 1991, the Government of Japan adopted a special act on the immigration control of, inter-alia, those who have renounced Japanese nationality on the basis of the Treaty of Peace with Japan. This act applies principally to a large number of Korean residents who have been residing in Japan since before the termination of the Second World War, and who renounced Japanese nationality on the basis of the Peace Treaty, and their many descendants, also without Japanese nationality who continue to reside in Japan and have established themselves in the Japanese society.

39. This special act came into effect on November 11, 1991 to further stabilize the legal status of these Korean residents, taking into consideration the historical background of the settlement, and grants them the status of special permanent residents. That is, only those who have committed crimes violating the fundamental interest of the nation, such as that of insurrection or foreign aggression may be deported, whereas other foreigners may be deported for a far wider range of offenses.

40. Moreover, the period of validity for a re-entry permit is five years, as opposed to two years for other foreigners. It can be said that their legal status in Japan is guaranteed so that they may enjoy their lives in Japanese society.

41. Returning to the subject of the fingerprinting system under the Alien Registration Act, the Japanese Government, after studying alternative methods of registration, decided to amend the Act and abolish the fingerprinting system for permanent residents and special permanent residents. In its stead, these people would be required to provide photographs, signatures and family information. The amended Alien Registration Act has been in force since January 8 of this year.

42. The second important development mentioned in the additional document is enactment on June 19, 1992, of the Compensation in Juvenile Cases Law, which came into effect on September 1 of the same year. This law was enacted to provide similar compensation in juvenile cases as with ordinary criminal cases in order to ensure the human rights of juveniles furthermore. This law for compensation is designed to oblige the State to compensate as soon as possible for mental and pecuniary losses suffered by the juveniles when they have subsequently been found not to have committed any delinquent acts.

43. The purpose of this law is to provide a compensation for damages even in those cases where physical restraint of the juvenile was not illegal or there was no negligence on the part of the State organs. Under the procedures for compensation of this law, courts would conduct ex-officio necessary inquiries and decide on the need and the extent of compensation.

44. Mr. Chairman, we'd like to express our deepest gratitude to the Committee for having provided me with the opportunity to deliver the introductory statement. And we sincerely hope that the constructive dialogues today and tomorrow will prove to be useful and informative for the Committee as well as for the Japanese Government. Thank you very much. Thank you for your attention.

(5) RESPONSE OF THE JAPANESE DELEGATION TO CHAPTER ONE OF THE

LIST OF ISSUES

45. The Chairman. Thank you, Mr. Kunikata, for your introductory statement. Now, I call on the delegation of the Government of Japan to provide us with replies on the items of Chapter 1 of the List of Issues. This Chapter 1 relates to the constitutional and legal framework, within which the Covenant is implemented; to non-discrimination; equality of sexes; protection of the family and rights of persons belonging to minorities; and relates to Articles 2, 3, 4, 5, 23, 24, 26 and 27 of the Covenant. There are a number of questions and issues in there which I shall not read. The list has been communicated to the delegation and I would like to call on the delegation to provide us with replies. Mr. Kunikata, you have the floor.

46. Mr. Kunikata. Thank you, Mr. Chairman. Now, let me explain our answers to the questions raised by the Committee in the order of the List of Issues submitted to our delegation. In chapter 1(a) the question is following: "With reference to the Paragraphs 12 to 18 of the report, please provide further information on cases where provisions of the Covenant have been directly invoked before the courts, and on how conflicts between domestic legislation and the Covenant are being resolved."

(6) CONFLICTS BETWEEN DOMESTIC LEGISLATION AND THE COVENANT

47. Our reply is as follows: There are a considerable number of cases where provisions of the Covenant have been invoked. There are two such cases which are included in the official reports of the cases of the Supreme Court. One is the judgment of March 8, 1989, cited in paragraph 15 of our report. The other is as follows: The judgment on October 22, 1981 in response to the assertion that the National Public Service Law and the National Personnel Authority Regulations which prohibit national civil servants from taking political actions violate Articles 18, 19 and 25 of this Covenant, it was decided that aforementioned law and regulations do not violate these articles.

48. The followings are the examples of the cases of the High Courts in which the provisions of the Covenant have been invoked. The first one is the decision of Osaka High Court on February 2, 1991. In response to the assertion that the Alien Registration Law which forces foreigners to confirm registration every five years after conducting the first alien registration violates Articles 2 and 26. It was decided that these articles do not prohibit imbalance caused by factual difference between Japanese and foreigners, and the alien registration system which was established to clarify housing and personal status provides different treatments for foreigners who are less adherent to this country, based on reasonable grounds, and consequently it does not violate the Covenant.

49. The second case was the decision of Tokyo High Court on September 18, 1991. In response to the assertion that serving a charge sheet to a defendant who does not understand Japanese without translation into the language which he can understand violates Article 14(3)(a) and therefore invalid, it was decided that, practically speaking, the defense rights of a defendant is secured and it is not interpreted that Article 14(3)(a) requires an attachment of translation to an original copy of a charge sheet.

50. The third one is the decision of Hiroshima High Court on November 28, 1991. In response to the assertion that Article 733 of the Civil Code which provides the period to prohibit remarriage only for women violates Article 23 of the Covenant, it was decided that Article 733 was formulated to avoid paternity presumption problems, and it does not violate the statement of the Constitution nor the Covenant, because there is no reason to interpret that the Covenant provides absolute prohibition of any discriminations of sex, and forbids reasonable control over the right to marry and build home.

51. As described in paragraph 12 of our report, the Constitution which is the supreme law of Japan provides that the treaties concluded by Japan and established laws of nations shall be faithfully observed in Article 98, Paragraph 2. According to the intent of this article, the treaties concluded by Japan are supposed to be effective as domestic laws if they are applicable in Japan. In concluding the treaty, the Government carefully scrutinizes its possible conflicts with the existing domestic law and, to the extent that such conflicts are found, enacts necessary modification of laws and regulations. The above applies also to the Covenant.

52. As aforementioned, there are cases where one of the parties invoked provisions of the Covenant, and the court rendered judgment as to whether any violation thereof existed. However, there are no cases where the court declared nullity of provisions of domestic law on the grounds that they are in violation of the Covenant. Should such violation be found, it is considered that the Covenant would prevail.

53. It concludes the reply to the question 1(a).

(7) PUBLIC WELFARE AND THE COVENANT

54. Question 1(b): "Please elaborate on the compatibility of the restrictions provided for in Articles 12 and 13 of the Constitution to protect public welfare with the Covenant". (See Paragraphs 5 and 6 of the report).

55. Our answer is the following: Our Constitution provides that we are responsible for utilizing fundamental human rights for public welfare in Article 12, and that human rights need to be respected to the utmost in legislative and other administrative procedures as long as they comply with public welfare. This does not mean that absolutely no restrictions must be imposed on human rights, but they may be restricted to some extent because of their inherent nature, so that conflicting fundamental rights can be coordinated, and each individual's rights are respected equally.

56. For example, a punishment of infringement of other people's honor may restrict freedom of expression of the accused; but such restriction is required for the protection of other people's honor, and it can be justified by the concept of public welfare. Therefore there is no room for restriction by the concept of public welfare on human rights which have no possibility of interfering with other people's rights. For example, freedom of inner thought is interpreted to be absolute to which no restrictions are permitted.

57. Articles 18, 31, and the followings provide the rights of personal liberty, especially regulations on criminal procedures, and these regulations are so specific and detailed that their nature indicates no restrictions by the concept of public welfare.

58. Furthermore, when a decision is made as to whether laws and regulations which restrict human rights can be justified as reasonable restrictions based on the concept of public welfare, court precedents permit relatively wide rage of discretion by legislature as to laws and regulations which restrict financial freedom such as liberty of business; but they provide strict criterion in the interpretation of those which restrict mental freedom.

59. In this way, the Constitution has no statement to clarify public welfare, but the concept of public welfare has been specified by court precedents and theories based on the nature inherent in each right. Therefore there would be no case where human rights are restricted arbitrarily by the government power and the concept of public welfare. It is true that International Covenant on Civil and Political Rights stipulates the reasons for restricting each right respectively, but according to the Constitution, human rights can be restricted generally by the concept of public welfare. However, merely the mode and the modality of restriction is different, and the content of restriction is substantially the same to the reasons to restrict human rights provided by the Covenant because the concept of public welfare is specified as described above. It concludes our replies to question 1(b).

(8) RATIFICATION OF THE OPTIONAL PROTOCOL

60. Question 1(c) is the following: "What has been the result of the study undertaken by government institutions into the problems still being faced by Japan with regard to the possible ratification of the Optional Protocol?"

61. Our reply is the following: Japan has no experience of the system whereby matters in the field of human rights already adjudicated upon by domestic Japanese court are thereafter subjected to further judicial inquiry by an international body; say the European Court of Human Rights, for example. The question of how the Japanese judicial system would be affected by ratification of this Protocol is presently the subject of extremely close scrutiny. For this reason, our further consideration must be given to many of the issues that have been raised during the course of the scrutiny. For example, how best to deal with the emergence of differences of opinion in respect of specific Japanese legal cases, particularly after judgment has been passed, or whether the presentation of our report based on the Protocol in respect of a current case, or one for which retrial has been requested, or to constitute the breach of the independence of the Judicature, or whether there would be abuse of the procedure for dealing with the communications from individuals. This is our reply to Question 1(c).

(9) LEGAL MECHANISMS FOR RELIEF AVAILABLE TO THOSE WHOSE RIGHTS

HAVE BEEN VIOLATED

62. Question 1(d) is as follows: "What legal mechanisms are available to persons who claim that their rights and freedoms under the Covenant have been violated to seek an enforceable remedy determined by a competent authority in accordance with Article 2, Paragraph 3 of the Covenant?"

63. Our reply is as follows: A person who asserts the infringement of the rights and freedom secured in the Covenant is entitled to request redress measures as follows: Firstly, when infringement is conducted by an administrative agency, in that case first objection or investigation demand can be made to the administrative agency in accordance with the Administrative Appeal Law. Secondly, a suit can be filed for cancellation of the disposition to the court in accordance with the 'Law Concerning the Procedures for Administrative Litigations.' At the time of objection or suit, the party concerned can request a suspension of the execution of the disposition by the administrative agency when it is urgently required to avoid irreparable damages caused by the execution. Thirdly, when a damage was caused by illegal actions of public officials due to malice or negligence, a request for compensation can be made to the state or the public organization in accordance with the Government Compensation Law. A person who was detained before sentence and then acquitted may request compensation for detention. The same regulation is provided for juvenile cases dealt by care procedure.

64. When infringements are conducted by private individuals, firstly, a suit can be filed to the court for injunction so that property or personal rights may be protected if an infringement action cannot be eliminated otherwise. Secondly, if it is difficult or impossible to achieve the purpose by waiting for aforementioned redress measures, a request can be made to the court to order or prohibit a certain action, or take a provisional action to secure realization of the right. Thirdly, a person who received damage caused by illegal actions by private individuals due to malice or negligence may request compensation for the damage caused by illegal actions described in the Civil Code to the individual.

65. A person who is under unjust physical restraint may request redress to the court based on the Habeas Corpus Law.

66. Furthermore, in case of the violation of human rights, anyone can submit a request to Civil Liberties Commissioners, the Legal Affairs Bureau of the Ministry of Justice or other human rights protection relevant authorities to investigate the case. This process is not legally enforceable but is able to bring about practical solutions with the simplified procedure. This concludes our reply to 1(d).

(10) MEASURES TO ELIMINATE DISCRIMINATION OF WOMEN

67. Question 1(e) is as follows: "What measures are being undertaken or planned to eliminate discrimination between men and women, in particular relating to the status of divorced women and unmarried mothers, including the position of women employed in the public and private sectors?"

68. Our reply is as follows: In 1975, International Women's Year, the Japanese Government established the headquarters for the planning and promoting of policies relating to women, headed by the Prime Minister in September, and with the formulation of the National Plan of Action in 1977 the Government began to actively promote measures for the implementation of this plan. As a result, progress was seen especially in legal areas such as ratification of the Convention on the Elimination of Discrimination against Women, the enactment of the Equal Employment Opportunity Law, as well as amendments to the Civil Code, the Nationality Law, the National Pension Act, and others.

69. In addition, looking ahead to the year 2000, in May, 1987, the headquarters formulated a New National Plan of Action that specified the fundamental long-rage direction for measures related to women, incorporating the "Nairobi Forward-Looking Strategies" for the advancement of women into Japan's policy measures. It was revised in May, 1991.

70. Working in close cooperation with all ministries and agencies, the headquarters is promoting comprehensive measures to achieve its goals.

71. The following are legal amendments having been made to improve the status of women: In 1976, an amendment was made to the effect that a husband or wife (eventually wife in many cases) who resumes the surname assumed before the marriage by reason of divorce may continue to assume the surname assumed at the time of divorce through a notification to avoid any possible inconvenience caused by resuming the surname assumed before marriage in connection with social activities she has been participated in. This is provided in Article 767(2) of the Civil Code.

72. In 1980, statutory shares for succession of a spouse was raised to improve the status of the spouse, especially wife. For example, where children and spouse are successors, the share of the spouse was raised from one-third to one half. This is provided in Article 900 of the Civil Law.

73. In the past, it was stipulated that effect of marriage should be governed by the law of the country of which husband is a national in case husband and wife are nationals of different countries. In 1989, this was amended to the effect that if the spouses do not have in common the law of the country of which they are nationals, the effects of marriage should be governed by the law of the place of their habitual residence which they have in common, and if they do not have in common the law of the place of their habitual residence, they should be governed by the law of the place with which the spouses are most closely connected.

74. As to the status of divorced women and unmarried mothers, there is no system in Japan that allows different treatment in terms of the legal status of a divorced woman and unmarried mother.

75. As to fatherless families and widows, comprehensive measures have been taken, including guidance by counselors for fatherless families, provisions of survivors' basic pension and child rearing allowance and home care, in addition to the system of welfare loan funds for fatherless families and widows to promote financial and social self-reliance of fatherless families and widows, and enhance the welfare of children in fatherless families.

76. The number of women who hold the policy decision making positions in various fields, including the public sector such as the legislature, administration and judiciary is still quite small, although it has gradually increased. During the United Nations Decade for Women, the special action program for the promotion of women's participation in policy decision making was formed in June, 1977, and efforts were made in line with this program. In the New National Plan of Action, expansion of women's participation in policy decision-making is also one of the basic policies to be promoted. Consequently, achievements have been seen, such as increase of women in national advisory councils, namely, 2.4% in 1975 to 10.4% in 1993. Elimination of job categories in national examinations for government employees closed to women. The number of such categories was 12 in 1975, and it was reduced to zero in 1989, etc.

77. It is still necessary to promote women's participation in policy decision making. For this reason, the headquarters decided as follows in the New National Plan of Action, and has been promoting the measures. Firstly, increasing the percentage of woman members in national advisory councils and committees to 15% by the year 1995. Secondly, accelerating appointment and promotion of female government employees, expanding their job areas, and developing their abilities through education and training.

78. For women who are working in private enterprises, a law was formulated and its further establishment has been promoted to secure equal opportunities and treatment for women in employment. The law also stipulates redress measures to solve conflicts that might occur between female workers and employers. That was our reply to question 1(e).

(11) HUMAN RIGHTS OF FOREIGNERS

79. Question 1(f) is as follows: "In the light of the Committee's General Comment No.15(27), please clarify whether all aliens enjoy all the rights pertaining to them under the Covenant?"

80. As described in paragraph 36 of the report, foreigners are guaranteed the enjoyment of fundamental human rights provided in the Covenant and the Japanese Constitution and national laws and regulations, except the right to vote and some other rights which are by nature granted to the Japanese citizens only. The status of foreigners is not expressly provided in the Constitution of Japan. However, the judicial precedent also declares this basic position that it should be considered that the fundamental human rights guaranteed in chapter 3 of the Constitution are equally guaranteed to foreigners living in Japan, except those rights to be considered granted to the Japanese citizens only by their nature. This is a judicial precedent of the Supreme Court on October 4, 1978 regarding the Macleen Affair.

81. Human rights organs of the Ministry of Justice have been conducting public information activities to introduce the Universal Declaration of Human Rights and regulations to all inhabitants in Japan. The counseling officers of human rights for foreigners are established at the Legal Affairs Bureau in Tokyo, Osaka, Takamatsu, Nagoya, Fukuoka, Hiroshima, etc., with interpreters to provide advice on legal affairs in accordance with the regulations, especially for those who do not understand Japanese.

82. At other Legal Affairs Bureaus and District Legal Affairs Bureaus, a special counseling service is offered with interpretation. There, counseling service is provided in various fields, including labor conditions, marriage, marital relationship, naturalization, nationality acquisition, compensation for damage, criminal affairs, and so on.

(12) CONCRETE MEASURES FOR THE IMPROVEMENT OF THE CONDITIONS OF

KOREAN NATIONALS LIVING IN JAPAN

KOREAN NATIONALS LIVING IN JAPAN

83. Next one is question 1(g), is as follows: "Please clarify what concrete measures have been taken and with what results to improve the situation of nationals of the Republic of Korea residing in Japan, following the conclusion of a Memorandum between Japan and the Republic of Korea in the fields of residence, employment and education?" The following is our reply to this question.

84. The following two points arise with regard to residency. The first point relates to the enactment and enforcement of a special law covering the immigration control of persons who have, for example, renounced the Japanese nationality on the basis of the peace treaty signed with Japan. The law itself, which came into effect on November 1, 1991, caters especially for the needs of Korean residents in Japan who have been residing in Japan since before the end of the Second World War, and of their descendants who renounced their Japanese nationality upon the signing of the Peace Treaty with Japan in 1952, and as such, it has been designed to provide these persons with a more clearly defined, more dependable legal status in Japan, taking into consideration especial historical background and their steady settlement in Japan. The second point relates to the abolition of the system whereby such special permanent residents and other permanent residents were obliged to provide fingerprints for alien registration purposes.

85. Next, in the area of employment, the following three measures have been taken to ensure the equal opportunities, and the removal of unfair practices in respect of the employment of Korean residents in Japan. Firstly, the Japanese Government has mounted program of seminars designed to help Japanese employers gain a clearer understanding of the employment problems that Korean residents in Japan are facing with, and to ensure that Japanese employers are fully acquainted with the need for a system that will ensure and even-handed approach to the employment of such Korean residents in Japan.

86. Secondly, the Government is providing a special intensive, individual guidance to employers in case that unfair practices have occurred in the past, or it seems to the Government that they may occur in the future.

87. Thirdly, the Government has mounted a series of publicity campaigns to enhance the awareness and understanding of the Japanese public in general, and Japanese employers in particular, with respect to the employment related problems of Korean residents in Japan.

88. Finally, there are three education related improvements in the Memorandum of the Japan-Korean Third Generation Consultation, namely, employment as teachers in public schools; extra-curricular education in the Korean language; and the issue of educational prospectuses.

89. Firstly, on the subject of employment as teachers, the Government has issued instructions that Korean persons such as Korean residents in Japan who do not have Japanese nationality are nevertheless permitted to take examinations for employment as public school teachers, and that those who successfully pass the examination will be employed on a full-time basis and will not be offered with only limited time contracts. Steps have been taken to comply this government instructions in all of Japan's prefectures and 'ordinance designated cities.'

90. Secondly, on the subject of extra-curricular lessons of the Korean language, the Government has advised local authorities that they may provide at their own discretion extra-curricular education in the Korean language and culture to Korean residents in Japan and enrolled in Japanese schools.

91. Thirdly, with regard to the issue of educational prospectuses, the Government has instructed all local education boards to issue the parents of foreign nationals with school age residing in Japan with school prospectuses, including details of enrollment procedures. Consequently, Japan's local education boards are issuing appropriate educational prospectuses to all foreign parents with school age children, except those who have confirmed that they have no intention of enrolling their children in the public school.

(13) MEANS TAKEN TO IMPROVE THE SITUATION OF BURAKU COMMUNITY

92. The next question is 1(h): "What means have been taken to improve the situation of members of the Buraku community throughout Japan? Has the adoption of three special laws in favor of residents of Dowa districts lead to any measurable progress to date? If so, please provide relevant details."

93. Our reply to this question is as follows: The Dowa issue has been perceived by our Government as a case relating to basic human rights guaranteed by the Constitution of Japan. The Government of Japan established the Law on Special Measures for Dowa Projects, from 1969 to 1982; the Law on Special Measures for Regional Improvement, from 1982 to 1987; and the Law concerning Special Government Financial Measures for Regional Improvement Special Projects, from 1987, and has been promoting special measures for the improvement of living environments; promotion of industries; stabilization of profession; promotion of education; enhancement of human rights; and protection and promotion of social welfare for the localities recognized as the Dowa region by spending 3.7 trillion Japanese yen from national expenditure.

94. Thanks to the promotion of these measures, vast improvements have been seen in the living environment and other inferior condition in the Dowa districts, so that in general the gap between Dowa and other districts has been narrowed to a considerable extent. Moreover, advances have been made in the elimination of psychological discrimination. As a result, a steady progress has been seen as a whole. And we ask the secretariat to distribute the data of 1985 survey, which describes the aforementioned improvements in detail.

95. This year our Government is conducting, again, large-scale surveys. We will be able to offer new data by the end of fiscal year 1994, namely, in March 1995. The Government of Japan is endeavoring to solve the Dowa problem as early as possible with firm belief that no discrimination should continue to exist in the 21st century.

(14) PROBLEMS RELATING TO THE AINU MINORITY

96. The next one is question 1(i), namely: "Please elaborate on the remaining difficulties faced by persons belonging to the Ainu minority, as well as on the comprehensive measures introduced under the Hokkaido Utari Welfare Plan."

97. Our reply to this question is as follows: According to the survey on the Hokkaido Utari living conditions conducted by the (Local) Government of Hokkaido in 1986, there was a gap between the average living standard of the general public living in surrounding municipalities in Hokkaido and that of the Utari people with respect to the ratio of school enrollment or the ratio of receiving welfare benefits. For example, the ratio of students who go to senior high schools was 78.4% in Utari people, compared to 93.9% in surrounding municipalities. The ratio of students who go to universities was 8.1% in Utari people, compared to 24.6% in surrounding municipalities. And the ratio of receiving welfare benefit was 6.09% in Utari people, compared to 2.19% in surrounding municipalities. And there were some cases in the past dealt with by the Civil Liberties Bureau of the Ministry of Justice in which the Utari people were insulted or they were discriminated in terms of marriage.

98. Hokkaido Utari Welfare Measures were formulated by the Government of Hokkaido for seven years to integrate all measures for promoting education, culture and industry, as well as improving their living environment, based on which various measures have been taken. Hokkaido Utari Welfare Measures have been formulated three times up to now.

99. Measure specific projects conducted under Hokkaido Utari Welfare Measures include the following: Firstly, promotion of education and culture by providing grant aid and loans for scholarships to senior high school and college students, conducting surveys and making records of Ainu folk customs and cultural properties. Secondly, improvement in living environment by renovating of sewage facilities as well as providing loans for building new houses. Thirdly and finally, promotion of industry by holding exhibitions of folk art products, innovation of infrastructure for agriculture and forestry, providing financial aid for vocational training, and so on.

(15) THE LEGAL SITUATION OF CHILDREN BORN OUT OF WEDLOCK

100. The last question of chapter 1 is 1(j), is as follows: "What is a legal situation of children born out of wedlock?"

101. Our reply to this question is as follows: As for the children born out of wedlock, as long as they have their legal parents, acquire the rights and duties such as those relative support and the right of succession in the first order which are provided in the Civil Code on the basis of the parent-child relationship. The treatment of the children born out of wedlock, according to the provisions of the Civil Code of Japan, differs from that of the children born in wedlock in the following respects:

102. Firstly, a child born in wedlock has its legal father by birth, in most cases by virtue of the presumption provided in the Civil Code in Article 772 that a child born in lawful wedlock is deemed to be legitimate, whereas a child born out of wedlock has its legal father only after the acknowledgment of the child by its father.

103. Secondly, a child born in wedlock assumes the surname of its parents, while a child born out of wedlock assumes the surname of its mother. It is provided in Article 790 of the Civil Code.

104. Thirdly and finally, in the field of inheritance, a share of a child born out of wedlock in the succession is one half of that of a child born in wedlock, when they are close successors in the same succession. It is provided in proviso of Article 900(4) of the Civil Code.

105. In addition, according to the Family Registration Law, which requires that distinction between a child born in and out of wedlock should be made clear on the birth registration, a child born in wedlock is registered in the family register under such terms as the "eldest son" or the "eldest daughter", but a child born out of wedlock is registered as a "male" or a "female". All these differences arise from the inevitable factual differences depending upon whether or not the child was born in lawful wedlock as well, as a need for the protection of lawful matrimonial relations, and it is therefore not deemed that they create any unreasonable discrimination against children born out of wedlock.

106. Mr. Chairman, it concludes our replies to a series of questions in chapter 1. Thank you very much for your attention.

(16) SUPPLEMENTARY QUESTIONS FROM MEMBERS OF THE COMMITTEE ON

CHAPTER ONE OF THE LIST OF ISSUES

107. The Chairman. Thank you very much, Mr. Kunikata. Now, I shall entertain the members of the Committee who wish to put additional questions in relation to chapter 1 on the list of issues, or to make comments that pertain to the replies provided by the delegation. I would like the members to be aware that the list of speakers, as it stands now, remains at about twelve members of the Committee, and some kind of economy of time should be considered. The first speaker is Mr. Sadi. I should like to give the floor to Mr. Sadi.

(17) QUESTIONS BY MR. SADI (JORDAN)

108. Mr. Sadi. Thank you, Mr. Chairman. Let me begin by extending a very warm welcome to the Japanese delegation headed by Ambassador Endo, Minister Itoh and Director of Human Rights Division, Mr. Kunikata. I must say that this size of the delegation and the composition is indeed impressive, and gives me the added assurance that Japan indeed takes this dialogue extremely seriously, and that that is a good beginning. And I think I must congratulate them on the selection of the members of the delegation, and they all seem to me formidable and experts in various fields touching on the Covenant. So this is indeed a very great beginning.

109. The report of Japan, in my estimation is excellent, and meets to a considerable extent the guidelines of the Committee. So I especially view of their favor. This is the third report and complements two previous reports. So all together, the reports paint a rather clear picture about the situation in Japan.

110. Now, there were also the submissions we heard this morning for the introduction. And the detailed answers from Mr. Kunikata have been indeed helpful and added extra light on the human rights situation in Japan. Let me say at the beginning that the Japanese report acquires added importance, in my opinion, because Japan is not just any country. Japan is a regional power. Japan is a major power. Japan is a country that seems to be superpower in occupying the seat on the Security Council. So whatever Japan does or says under the Covenant, I think, has a locomotive effect regionally and internationally. And therefore, I personally regret to see that Japan is a bit conservative as far as ratification of the other conventions, for example, the Conventions against Torture and the Protocol to the Covenant, because again in view of the position of Japan, and I would like personally see Japan setting the standard for the region and the world, by taking a leadership role in that sense.

111. Before I take up the list of issues, and I would like to take some of the issues, I will not pretend to deal with all of them, let me begin by saying what a pleasure it is to have the occasion to work with Mr. Nisuke Ando. I have known him for nearly three years. He is an excellent expert, a learned expert, a very valuable member of the Committee, and I think the fact that he was chosen to be chairman is an evidence of how much we all view Mr. Ando's contributions to the Committee. And I therefore like to thank Japan for providing this Committee with such an able member.

112. Let me now... Because we are short in time, let me just take up some of the issues that are on my mind and leave others to my colleagues. My first one is on the status of the Covenant. I know this is the third round of attempts to see where the Covenant stands in Japan; but it is a central issue and therefore forgive me for again raising the issue, because I think it is a central issue, and unless we deal with it in a very clear manner, it will still haunt us forever.

113. What gives me trouble is that in Article 12 of your report, and you confirmed it again today, that the Constitution provides that the treaties concluded by Japan shall be faithfully observed. Fine. Then we go on to say that, according to the intent of this Article, what do you mean by the intent of this Article? I think in juridical terms, once one goes into intents and intentions, one gets into problems. Then the issue becomes less clear. And then after saying according to the intent of this Article, which is something that has to be interpreted as actually what is intent of the Article, then we say the treaties concluded are supposed to be. Again what is full import of the word "supposed" to be? That means the position is a bit shaky in Japan, and I hope I'm wrong, but I'm just making this comment on the basis what we read. Now "intent" and "supposed", these two words to me, when we read them together, it gives me some problems for me, and makes the position of the status of the Covenant, in my estimation, a bit shaky.

114. You have confirmed today that the Covenant is occasionally mentioned in some judgments, although no judgment expressly mentioned the fact, although the Covenant has not taken the status as a part of the domestic law, you have confirmed that it is invoked sometimes, and the courts make decisions that certain acts do not contravene.

115. My direct question is this: When the courts interpret the Covenant, are they guided by the jurisprudence of this Committee? For example, when they say a certain law does not contravene the Covenant; or certain act does not violate the Covenant. Do they take into consideration what this Committee says on the interpretation of the various articles of the Covenant? Because I think this is very, very central issue, and I think we have to make sure that when Sate parties interpret the Covenant for their own juridical purposes, they are always guided by the jurisprudence of this Committee, because otherwise we are going to end up having something like a hundred different interpretations.

116. Now, I'm going to Article 2 on discrimination. In paragraph 35, the Constitution of Japan says that all of the people, there shall be no discrimination because of race, creed, sex, social status, or family origin. Is there real reason why nationality, nation of origin has been skipped? It could be benign omission, could be non-intentional, but nevertheless from the Covenant's point of view one would have to raise the issue why this criteria was absent.

117. When I go on from this point on the issue of Korean nationals, I know this has been a chronic problem and give rise to all sorts of allegations of discrimination. My first, primary question is, let's say, the differential treatment accorded to Korean nationals. Is it some sort of backlash because they have denounced the Japanese nationality? I'm trying to see the issue in perspective. We have now several generation residents of the country, and they opted to renounce their Japanese nationality, which I could... and therefore, is there a backlash because of this? I don't know, it's not mentioned in the report that there is some kind of effect, cause and effect between whatever lingering problems that Korean nationals have in Japan.

118. And therefore, my other question is, when we view them as special permanent residents, why shouldn't they, for example, be treated like, for example, holders of green cards in the United States, who are also residents. Is there a policy to provide the residents of Japan equal treatment? For example, permanent residents in other countries like Canada and the United States where they in fact for all intents and purposes have equal, completely equal treatment, except the right to vote, which is understandable. So therefore, when we receive information, and I could be corrected that something like 20,000 of them sometimes per year, Korean nationals sometimes are arrested because they don't carry the registration card. Is this correct information? I do not know, but I will be honest with you. As you see, your report have generated considerable widespread attention, and we have received information from various areas which is also a positive development. So is it correct? and I'm asking, because I honestly do not know that the problem has assumed these proportions. So, simply, I put it on the form of a question because I do not know for a fact, if there are still pockets of, let's say, negative differential treatment accorded to, for example, the Korean nationals.

119. Then I going to Article 4. I see that your treatment of Article 4, (at) paragraph 98, is very concise. I could understand that there is no problem related to public emergencies, but nevertheless I would humbly point out that under the Covenant, Japan is duty bound to have legislations that would incorporate Article 4 and all its paragraphs. For example, the provision in case (where) there is a reason to declare a public emergency, the Secretary General of the United Nations would be informed, and that so many articles would not be delegated from, and so on and so forth. I believe from even legislation point of view, there should be a bit rather more extensive treatment of these subjects.

120. Then I go on, I'm trying to rather fast, on women's rights. Did I understand the equality between the sexes? Did I understand you to say that men and women have equal treatment as far as giving citizenship rights to the offspring, to their children: for example, the children of a Japanese mother married to foreign nationals, would she be able to pass on her nationality just like Japanese males can? Maybe you said it, and I think I gather from what you said on this subject that in fact there is equal treatment. But I just want to have an assurance.

121. My last concern is, of course, I've other concerns, but I'm trying to be considerate for as far as my colleagues are concerned, on children born out of wedlock. Now I think we all agree that children born out of wedlock deserve added protection, not only equal protection, but added protection, and not to be penalized, because I believe that if there are illegitimate people in this equation, it is the parents, not the children. And I think if we take that in mind, especially when the Covenant itself speaks about every child, and doesn't say every child born out of wedlock or off wedlock.

122. So I believe..., perhaps, I am thankful and very gratified to see that Japan in fact made great strives and rectifying the situation, and has made considerable advances to accord these innocent children equal, added protection, and I hope that this will be extended as to continue the path 'till they are really given the attention and the care and the protection that they deserve. Especially including on the issue of inheritance, I personally would rather see a child born out of wedlock inherit more, not less than, but of course, this is subjective thought, I do not impose it on anybody. But at least I would say these children deserve sympathy, added protection, and not to be penalized on any level whatsoever. These are my primary comments, and I, of course, on other issues on other chapters, I will raise other questions in due course. Thank you very much, sir.

123. The Chairman. Thank you, Mr. Sadi. I'll give the floor now to Mr. Mavrommatis.

(18) QUESTIONS BY MR. MAVROMMATIS (CYPRUS)

124. Mr. Mavrommatis. Thank you very much, Mr. Chairman. I'd very much like to extend very warm welcome to the large and, as it already appears, very competent delegation that we've had from Japan. I'd like to thank them for their report. A report which is based on the guidelines which is fairly good report for the purposes of the consideration, for the purpose of the dialogue that we have embarked upon. I thank them for the additional information they gave us, especially on progress, and for very good indeed replies to our list of issues, good to the extent that I could delete more than half of the queries that I have and make some remarks in respect of most of them that I'll mention, the few that I'll mention.

125. Let me say that we are extremely pleased to have amongst us, and in fact to be chaired by fellow countrymen viewers, the delegation, Mr. Ando, who has proven to be not only an extremely good member whose contribution was first-class, but now, he seems with a strong hand to be guiding our Committee in the right direction.

126. My friend, Mr. Sadi, mentioned the role of Japan in international relations, not that it has anything to do with the consideration of the report, but nonetheless, there is no doubt that Japan is playing the leading role in the international field nowadays, to the extent as Mr. Sadi said, this lends credence to its legitimate aspirations to become the permanent member of the Security Counsel. But this, of course, adds more obligations to Japan. Leading countries are nowadays expected to be models of protection and promotion of human rights. I know that Japan is doing quite a lot in the field, and it also providing developmental bilateral or multilateral systems to many countries, which helps in respect of economic rights. And it also provides some assistance, direct assistance, to organizations to promote human rights into the center. But it should also look its making..., admittedly, its making progress in respect of human rights in fundamental freedom by leaps and bounds.

127. But there are still certain fields which leave things to be desired. And one of them, perhaps, is that and one of the remedies would be the accession of the Optional Protocol. I've listened with a certain degree of apprehension to what has been said about their reasons in the difficulties for not accepting it. Things were mentioned that it might affect the judiciary. Country after country, scores of them, most of the countries, have acceded to either regional or universal optional procedure for the protection of human rights whereby they allow communication or individual positions. No problem was created. Normally, these mechanisms take over when the local remedies have exhausted, provided that are available not for long. Therefore I do not think that this is not justification.

128. And these, by the way, will provide an answer to some of the queries that we have here. It's one of the best ways, and believe me, no country can say that it is protecting nowadays human rights or fundamental freedoms that does not have in one way or another acceded to an optional process. Regional, I repeat, or universal, and in our region there is no regional human rights arrangement, as they have, let's say, in Africa or in Latin America. So the sooner they do it, the better it would be.

129. Now, I turn..., now let me mention another distinct feature about this. I'm greatly impressed by the fact that Japan has made available its report to local NGOs as well as other NGOs, international NGOs, and as a result, an unprecedented interest was generated. Japan is praised for that, and to such an extent that I believe in to our moving as a Committee, towards requesting countries to make these reports officially available, because the local NGOs are in the better position to monitor more closely and more constantly and consistently, the respect for human rights and fundamental freedoms. And these, and I have no doubt, I have no doubt from the reaction of the Government and the counter-reaction of the NGOs that a lot of good is the result from that, and quite a lot of improvements are due to the efforts of the NGOs. And quite naturally, when an NGO of the nature, let' say, the Federation of Bar Associations, that's unique by the way... (Although not unique in) the non-inclusion of prosecutors and procurators because most of the countries do not have them, but it is unique that they have (an inside) chapter of the promotion of..., (unique to have) as one of their main activities the promotion of human rights. Well, after all, the Government has to listen to them, because they are a particularly strong lobby, these NGOs, and it is in the best interest of the Government to do so.

130. Now, a couple of more things. Now, the Covenant. We have listened very carefully to the explanations that were given to us about how the courts use the Covenant. It seems to be a negative approach. They are only mentioned that it is not consistent. We would like to see it to go a step ahead and to accept rights because they are in the Covenant. And let me say that I'm a little bit worried. But what we've heard from the Federation of Bar Associations, they say that in answer to the fact or delegation that the court will let the provisions of the Covenant prevail, they say that the Japanese Government stated to the Human Rights Committee that the Treaty would have priority over domestic legislation in that Japanese courts (in their) judgments apply the treaty directly to the case. However, the Government has in fact been taking the contrary position in court cases where the Government is sued as the defendant. Is that true? Is it true, this warning (that) there has been no case in which a Japanese courts have given a judgment based on the Covenant. Now, please reply to this question. It's very important, and my premise for mentioning the case whether you applied the jurisprudence. Of course, general comments also provided the certain guidance to the courts where these are available. But in respect of one of the cases where the charge was not given in translation to an accused person, to a foreigner, what I would like to know, it's not so much whether it was given (in) translation, but whether the interpretation was available. It would have been much better if a document is given also in his language, but the Covenant requires at least that the charge be translated, and when even first mentioned to him, even before the indictment, (it) is prefer(red) (that) the charges (be) made that he be informed in the language he understand about it.

131. The next one is public welfare. I cannot understand how it's interpreted, and in the absence of legal precedent as to how it is, I think that it's probably necessary for the country, in one way or another, through legislation, to define exactly what this (word) covers. Otherwise, it might permit violations of the Covenant, and one of them, since your Constitution is omitting some of the reasons for discrimination, for instance political opinion, then, it becomes more necessary to define what it is; in what actually the phrase 'public welfare' entails. Is it public interest or what? I cannot, I cannot quite understand about that.

132. Briefly on the Civil Liberties Commissioners. It appears that most of their task is connected, from what you are telling us in the paragraph 8 of your report, it's connected with civil disputes, property cases and contractual differences. I don't see very much of a nexus with human rights, and I'd like to be enlightened. And in any event, I'd like to be informed whether minorities, such as the Koreans or some of the underprivileged communities like inhabitants of the Dowa, are represented on these, and what are the qualifications for these people? Sometimes, sometimes resorting to them rather than court, relying on persuasion than actually claiming or obtaining your rights, sometimes it tends to confuse matters.

133. On Korea. Again, it was mentioned by my predecessors. I'm sure it will be mentioned more on the Koreans. I think that, first of all, I appreciate that there is progress, as well with regard to the Dowa community. But the past history, how they found themselves or how they found themselves stripped of the nationality without really being individually asked, imposes on the Government of the country the duty to eliminate all the remaining restrictions: registration; fingerprinting; employment. Employment, for instance: How can one be allowed to be a civil servant up to certain position and non-above it? Isn't that discriminatory after all to put an end to the promotion opportunity and he'll always remain there? So, I think that these should be eliminated.

134. And in respect of Dowa, I've noticed it, I've read very quickly the new information that you gave us. There is progress. I think that what (is) needed is more education and enlightenment to try and eliminate, there again completely, the remaining inequities that exist.

135. On children. It was said, and I was a little bit surprised to hear it, that's why I wonder whether Japan has actually accepted the Convention of the Rights of Child. It's an information I would like to have, but it was (said that differential treatment of illegitimate children is) reasonable. 'Reasonable', they said, 'differentiation', they won own inheritance, especially, inheritance receiving half of the others, and what appears on the birth certificate, and getting only the mother's name. I presume irrespective of whether the father, although out of wedlock, recognizes the child as his own or not. I think that it's cruel to these children, and I think that the sooner it's eliminated, the more consistent Japan will be with our Covenant. Well, these are the questions. I've already gone a little bit more than I thought, Mr. Chairman, and I thank you.

(19) QUESTIONS BY MR. POCAR (ITALY)

136. The Chairman. Thank you, Mr. Mavrommatis. I now give the floor to Mr. Pocar.

137. Mr. Pocar. I thank you, Mr. Chairman. Mr. Chairman, like my colleagues, I would start by welcoming warmly the delegation of Japan, led, in the absence of Ambassador Endo, by Minister Itoh with whom I had pleasure to cooperate in other forums. Due to the size and the competence of the delegation, I am sure we will have a good dialogue, as we started already to have this morning, looking at the answers given to our third chapter of the list of issues. And let me say that the report that has been submitted punctually, although we could not take it immediately because of our heavy schedule, is a good one. And I'm also grateful to Mr. Kunikata for the additional information that in some way updates also the report.

138. Before making my comments, Mr. Chairman, I would like myself to say some words of appreciation to Mr. Ando, to our chairman. It's a great pleasure to have him in the chair of our Committee. Mr. Ando has always given a most valuable contribution to our activities, leading also difficult issues such as the preparation of the initial draft on our general comment on non-discrimination, an issue that will be probably taken up again during these days. And being later an excellent reporter and always bringing stimulating ideas to our debates, and last but not least, he is always distinguishing himself for his fairness, kindness and friendship with all of us in the Committee.

139. Then I would like to say, before coming to specific issues, that I'm perfectly aware all the great efforts that the Japanese Government has deployed all over these recent years to improve the human rights situation. Within the country and also outside the country. I had the opportunity to participate in meetings and workshops in the Asian region, and I have personally experienced the role and the position of Japanese experts and delegates in this field. And within the country, I think that just the presence of so many representatives and NGOs shows that a goal has been achieved, and that is at least the awareness of the Covenant. This is not common to many countries. And by the way I would like to thank the NGOs for all the information they have provided us with here and in Japan.

140. Because I had the opportunity to visit recently Japan, and had exchanged views also in the country. I have made this comment because some criticisms that I will express in certain issues. I would like to be seen against this background. I will, on this first chapter, confine only on a few, to some issues, not because many others might require the discussion, but because some have already been raised, and some concern has been dispelled by the answers given by the delegation this morning.

141. My main comment is on discrimination issues. I have the feeling that notwithstanding all the efforts, and I repeat, all the efforts made by the Government and the authorities in Japan, and notwithstanding a great number of encouraging improvements in legislation and practice that have been referred to also this morning by the delegation in its answers, in a number of fields, certain discrimination persists, both in the law and in the practice. Let me come to some points as to the law.

141.2 Our colleagues have already mentioned, for instance, the point concerning the children born out of wedlock. And I, too, was a bit surprised to hear a statement in which this is not only accepted but justified. Article 900 of the Civil Code, when it clearly says that in successor matters, children born out of wedlock are discriminated, is in contradiction with the Covenant, is clearly in contradiction with the Covenant. And we said, we in the Committee said it clearly in our general comment on Article 24 where we referred to discrimination in every field, including inheritance in this respect.

141.3 I understand, and there are a number of other provisions concerning children, which I will not repeat. Mr. Mavrommatis has already pointed out problems in the registration, in the notification of birth, that are the basis of further discrimination against children born out of wedlock in the society later on. But this issue is really important to me, and I understand that the legal order, as the delegation has explained, has the need to protect families. This is, of course, a concern that maybe present in any legislation, but this protection of families cannot, in my opinion, be assured at the detriment of children. It must be achieved by other means, and I would like to observe that even the protection of families has certain limits, where the members of the families themselves do not protect the family having children out of wedlock. If the first protection is to be in the family, I do not see why the society has to protect a family that does not want to be protected itself. And especially, how this should be done at the determent of children that have no, of course, that have no responsibility in the situation.

142. So I think the protection of the child should come first, and then one could, in the light of that, not at the determent of this position, protect the family. So I wish really that this discrimination be eliminated in all respects.

143. Then in certain states, in certain practices in the country, I have the impression that certain discrimination exists, notwithstanding the improvements, as far as women, as far as certain workers, especially working place, are concerned. We got a number of information from NGOs concerning the dismissal of workers for having certain ideas or behaving in a certain way. And I understand that this discrimination in practice is against the law, because the law is not providing for such discrimination. But what I understand I would like to be confirmed on that by the delegation, not confirmed, of course, is whether in fact the discrimination remains because the remedies are not adequate.

144. I understand that, for instance, a worker that's dismissed may go before a local commission to have his case discussed, then to a national commission, then that comes again to a lower court in Tokyo, and then maybe until the Supreme Court, and that will take not less than fifteen years or so in some cases...

145. (This will be so) without a mechanism or machinery to have a prompt reinstatement or injunctions be(ing) available. The delegation spoke of certain injunction. I would like to know whether this injunction may be applied in any field and, especially, whether they may be applicable also in matters of discrimination in various fields.

146. Well, Mr. Chairman, I see I have forgotten one thing concerning children, and I would like to ask for information from the delegation. I understand that recently the Tokyo Court of Appeals in June this year has declared the provision of Article 19 paragraph 4 of the Japanese Civil Code against the Constitution. I would like to know what is the impact of that decision. Is this the setting aside the provision of law of the Civil Code or further legislation is required? And if so, what is the approach of the Japanese Government in this respect?

147. Finally, Mr. Chairman, I, too, want to express that it would be highly desirable that Japan ratifies in the next future the Optional Protocol to our Covenant. As Mr. Mavrommatis, I do not see the shortcomings and negative impact on the judicial system unless the problem is linked to the problem of remedies, which I referred to earlier, because, in that case, certainly the one certain communication could be sent claiming that the remedies are unreasonably prolonged in the country, and that would affect the judicial system. But that would lead to an improvement of the judicial system. It would probably point out that there are problems, and that amendments in the legislation are needed. I say that with sympathy, because in my country we have, in many respects, the problem of the length of the judicial procedures. And we are trying as far as possible to speed them up, but it is not easy, and the support of international bodies as the Human Rights Committee may be good in this respect. Well, these were my comments, Mr. Chairman. Thank you.

(20) QUESTIONS BY MS EVATT (AUSTRALIA)

148. The Chairman. Thank you, Mr. Pocar. I give the floor now to Ms Evatt.

149. Ms Evatt. Thank you, Chairman. I would like to join my colleagues in welcoming warmly the delegation of Japan, the size and strength of which is the indication of how significantly the Covenant is regarded in Japan. As you'll be aware, my country and Japan are in terms of geography in relationships, neighbors in the sense. And I'm glad to participate, for the first time for me, in the examination of the report by Japan to this Committee. I was glad to hear in the introduction, a reference to Madame Akamatsu, formerly the colleague of mine on the Women's Committee, and I was glad, when I joined this Committee, to find that I was under the chairmanship of our able leader, Mr. Nisuke Ando. And he is the only chairman I know in this Committee so far and I'm delighted to work with him.

150. The Third Report of Japan and the supporting material is very comprehensive. It has given rise, as Mr. Mavrommatis has said, to an unprecedented amount of material from NGOs. I have received material from more than twenty organizations. They raised many issues, some of major concern and some of minor concern. They raised too many issues for us to study in detail and take up with Japan. And I was glad in that regard to note that the Japanese Government has said today that it will consider those documents and the issues to which they give rise.

151. I'd like to commend Japan for the extensive material provided, which I'm happy is in English, and for their attempt to take up in their report the issues which were raised by the Committee last time. I'd also like to thank them for the clear answers given this morning.

152. Looking at the report of Japan and the account of the discussion on the last occasion, it seems that among the concerns of the Committee were questions about the status of the Covenant, about treatment of the persons in custody, about the application of the death penalty, about discrimination in various ways and those same issues have figured to some extent in the current report and certainly in the material received from non-governmental organizations.

153. I'd like to start by commenting on, in particular, on the question of the ratification of the First Optional Protocol, which was raised last time and it has been mentioned again today. In view of the call by the world conference for universal ratification of individual communication procedures, I think it's important that Japan gives active consideration to this issue. Many states have taken the step of ratifying the Optional Protocol and in no way should it be seen to undermine the independence of the standing of the judiciary in the state concerned. Nor because of the provisions relating to domestic remedies, should it give rise to abuse that has not been the experience.

154. Turning to the status of the Covenant, there was concern before, and I think there remains concern, particularly concerning the public welfare limitation, which has been explained as the matter for the courts to resolve in each case. That could, in my view, lead to uncertainty about the application of rights.

155. The Covenant itself provides for limitations by law but in defined situations. And the explanation in the report in paragraph 15 that if laws are provided the restriction is permissible appears to me to miss out on the very significant requirement that the limitations, where permitted, must be within the expressed set out on the Covenant. The case referred to in the report and those mentioned this morning also give rise to some concerns. They confirm, in my view, the desirability of opening up this matter for wider discussion by ratifying the Optional Protocol.

156. The report in paragraph 8 refers to "National Institutions". And I would seek further information about the work of the Civil Liberties Commission, and in particular whether it does take up cases of alleged violation by public agencies. The report mentioned that most of its work relates to private matters between private individuals. So I would ask about public agencies, what recourse it has in cases of that kind.

157. Questions about women and discrimination against women are probably far to extensive for us to discuss here today. I simply note that the National Plan of Action is a welcome step and I've read also the explanation from the ILO about the slow implementation of equal employment opportunity and equal pay. In view of the matters set out in paragraph 94 of the report concerning child care law, and having in mind the obligations under Article 23 paragraph 4 of the Covenant, I'd like to ask whether Japan is giving active consideration to implementing the ILO Convention on Workers with Family Responsibilities. And it seems to me that part of our problem here is the unwritten traditional assumptions about roles of men and women in relation to the family, which acts as a barrier to the advancement of women in employment and in political participation.

158. Others have spoken about the ex-nuptial child and the continuing discriminations in regard to children born out of wedlock. I won't labor that point to any extent except to say that it seems to me the strict requirements about registration of names and family registration which is at the heart of this problem and which contributes to the continuing discrimination against children in this situation. And I believe a way will have to be found to overcome those requirements, because it is the right of the individual itself, whether as a child or an adult, to be treated equally without discrimination. And I have heard, as was said by Mr. Pocar, a court has pronounced upon the inheritance law, and I would seek more information whether that will be repealed.

159. Others have spoken about the Korean and Buraku communities, and I won't go into detail about that, except to say that in regard to the Ainu community, the problem which was identified for the Committee by some groups is the failure to recognize the wish of those communities to maintain their individual cultural identity and language. And that to me seems to require not just the improvement to which we have been referred today, but an increasing level of consultation and participation by those communities themselves in planning for their own development.

160. Mr. Chairman, the final point that I would like to raise in this part relates to the election process and political participation. Concerns have been raised with the Committee, members of the Committee, about the very tight restrictions on people in taking part in election campaigns. And I would call for qualification about this and about how those restrictions meet the requirements of Article 25 for a free and open electoral process. Mr. Chairman, thank you very much. Those are my issues.

(21) QUESTIONS BY MS HIGGINS (UNITED KINGDOM)

161. The Chairman. Thank you, Ms Evatt. I would like to draw the attention of the members that we are, of course, fully aware of the importance of this report and this consideration, but time is limited and there are many speakers inscribed on the list. And I will appeal to them to be more succinct and not to refer again to the same problems that have been referred already by other speakers because the delegation will reply to all the matters that have been raised here. This by no means is a signal that I would like you to use some kind of a guillotine to stop speakers from using the time available. But it's only a matter of the economy of the proceedings as I said. I now give the floor to Mrs. Higgins.

162. Ms Higgins. Thank you, Chairman. Chairman, I would like to begin by saying that I can see neither you nor the delegation, but I have good reason to believe you out there somewhere, and therefore I would (be) speaking to the ether. I do welcome the delegation most sincerely and look forward to this continuation of the dialogue from that we had during the Second Periodic Report. I want to immediately follow that by adding my voice to that of my colleagues to express the appreciation we have for our chairman, Professor Ando, who has shown us that quietness, courtesy and sit perfectly well with strength in the chair. We value him very much both as chairman and as colleague.

163. I have found the report a rather good report with a great deal of information set out in sort of way we need to have a good dialogue, and I do know we are in the presence also of an extremely competent delegation, and we thank the Government of Japan for sending us people who really can reply to our queries and comments. And I would also like to thank Mr. Kunikata for his excellent replies to the initial questions. Clearly, much work had to go into preparing those, they set the tone extremely well.

164. We have, as the colleagues have said, had many many submissions to us from NGOs. They have made many points, some in terms of the Covenant, seemingly well-founded, some not so, but we are delighted to have that input. I'm pleased too, to see the positive government response to that healthy public exchange on human rights. I feel also we've heard an impressive change in recent legislation in significant areas and undoubted improvement in administrative measures also, and we heard again in the answers to questions indeed about some specific affirmative actions. So I find all of this rather encouraging.

165. On the Optional Protocol, I was struck by the two main reasons offered: One, an anxiety about the independence of courts. Well, colleagues have spoken about that already. And another about the other about possible abuse. All I would want to say on the second point is that the Optional Protocol itself has provisions for rejecting communications that are abusive in terms, and we also have actually other mechanisms within Articles 2 and 3 to protect ourselves, and thus in that way also state party against abusive of the procedure. I do believe it is a non-problem.

166. Now, I would like to preface my specific questions with a general question, because I have the sense that some of the issues of concern that were strongly with us last time are still there. And on the other hand, in some areas, there has been improvement though I see that sometimes the reason offered for those changes has been, for example, negotiation with another government. That leads me to ask this preliminary question: What actually happened after our last report in the sense of where did our observations then go into Government? Did what we say get looked at? And what actions have been taken as a result? What I'm trying to do, you understand, is to see the efficacy of what we say on this Committee as a vehicle for change as opposed to other extraneous factors that may lead to change, or other factors that lead to resistance to change where we believe it might be appropriate.

167. I now turn to some specific questions. Following the chairman's injunction, I will not say anything further on issues of illegitimacy, except to add my voice to the questions that have been asked by colleagues, and particularly Mr. Pocar.

168. So far as possible continuing discrimination in relation to Koreans is concerned, I do have the following specific questions. First, what is the purpose of the requirement of cards to be carried even for long-term residents? I'm not myself one of those who believes that carrying ID cards is contrary to human rights. But when they are carried by some members of the community and not others, and when there is a penalty for not doing so, then one does want to know what is the purpose that is served by that differentiated treatment.

169. My second question relates to the re-entry permits. We were told for five years as privileged position in relation to other non-nationals. But in terms of people who have permanent residency, could I know why we have still the five year cycle?

170. My third question is about assimilation generally in the culture and especially, as it arises, in the question of names. Now all of this I'm going to say frankly, it's extremely hard for a European to grasp. But I understand the following, that for naturalized Koreans there is a restriction upon the continuation of use of Korean names, and certainly a strong de facto restriction that there are pressures to change one's name to a Japanese form of name. And even a person who keeps his Korean name, it's then written in the Koseki in the Chinese ideograph, and it then appears Romanized as a different Japanese name in the passport. And even if the name is written in Japanese phonetic characters in the Koseki, it still appears as a different romanced Japanese name, all be it somewhat more close to the original Korean. Now, I would like to understand generally why is there a pressure at all to alter names in any way.

171. My next question is to ask whether Koreans are recognized as an ethnic minority under Article 27. I see in the report there is no mention whatever of Koreans in Article 27. The reference there to minorities is to the Ainu people, and it said that they are Japanese nationals whose equality is guaranteed. Now, this strikes an ominous note in the following sense: The Committee is finding disturbingly increasing suggestions that minority rights are only available to nationals. Minority rights are available to all persons within the territory who belong to a minority. We believe even those who are incidentally there, but most certainly permanent residents who are there.

172. Now, I'm not challenging the substance of whether the rights are being violated or not. I'm merely asking about the perception of the Koreans as a minority who are entitled to the protections of Article 27.

173. And then two tiny, three tiny questions to finish with, Chairman. First, is it correct that, in Korean schools which are permitted, there is the same national curriculum, but there are problems about proceeding from those schools to high school and university? And is it correct that students at Korean schools are subject to higher costs for the school commuting railway pass? And finally why are Koreans over age 67 precluded from the possibility of making good blank periods for the accumulation of contributions to pensions, which I gather is a scheme of filling in those blank periods that has now been generally encouraged. I would greatly appreciate answers to these questions. Thank you.

(22) QUESTIONS BY MS CHANET (FRANCE)

174. The Chairman. Thank you, Ms Higgins. The next speaker is Madame Chanet.

175. Ms Chanet. Thank you, Mr. Chairman. First of all, allow me to welcome very warmly the large delegation that Japan has sent today to the Committee. A very large delegation and highly competent one as well, which shows the importance that the country of Japan attaches to the Covenant and the work of the Committee. I welcome this and I welcome the fact that the Committee is presided by Mr. Nisuke Ando, whose courtesy and legal competence I appreciate every day, as well as his sense of friendship and humanity.

176. Mr. Chairman, I'm very pleased to be able to continue this dialogue after five years. I started it halfway through in 1988, when I first joined the Committee. I think it's very important that these report should be submitted on time and considered quite quickly. This means that one can move on quickly to the legal and institutional framework of the country because one learns more about it, and one can see whether the comments that were made during the proceeding, consideration of the proceeding of the report have been taken into account and, if they haven't been, why not and whether improvements have been made in the meantime.

177. It seems to me without prejudicing the outcome because the delegation can provide clarification to the Committee which will maybe change its views but a number of questions, it seems to me, give rise to difference, not discrimination. Perhaps we will be able to see whether it's a justified difference, or discrimination that is not justified, in which case the legislation and practices would not be in conformity with our Covenant. But it seems to me that a number of people, or groups of people, are treated in a different way, and I think that we should know why, and see whether a change is taking place in the status: women; foreigners; illegitimate children, and as far as I'm concerned, I will just deal with the question of the mentally ill.

178. I associate myself with the questions asked on minorities and foreigners, particularly Koreans. I would add one specific question concerning medical assistance. It would seem that medical assistance, national medical assistance is reserved for Japanese citizens, and foreigners who work in Japan who participate in the Japanese economy don't benefit under the same conditions from the social security and medical assistance. I'd be very grateful if the delegation could give us information on this, on medical assistance.

179. With regard to children, I would like to know how many children there are in Japan without a nationality, if we can have the figures on that. I share the comments that have been made by preceding speakers on the fact there is discrimination on the basis of birth when an illegitimate child is not given the same share of an inheritance as is given to a legitimate child. The Civil Code does not seem to be in accordance with the Covenant on this. It seems to me that this constitutes discrimination which is prohibited by the Covenant. Mr. Kunikata told us that the justification of this difference was the protection of marriage links. I don't think that there is any link between such protection and what is suffered by the child who is illegitimate. I think that the situation of the child and his fate, he is a victim of a provision that is different although he has not participated in the link, the relationship of which he has been born. So I don't think that this is a proper justification. I think there is just discrimination under the Covenant here.

180. With regard to women, Mrs. Evatt raised this question and said that she couldn't cover all the questions concerning the fate of women. The question I would like to ask is that Mr. Kunikata said earlier that there were measures taken to settle disputes on discrimination between women and their employers in the public sector and in the private sector. Is there any remedy when a woman considers that she is discriminated against in her job, if she has been treated in a discriminatory fashion. Does she have a remedy or recourse to a national jurisdiction and in what way can she use this remedy? Or does she have a remedy before a specific institution for either workers or women?

181. Now, with regard to the mentally ill, there is a question on remedies under chapter 2, but under the chapter 1, I am concerned about discrimination against people who are mentally ill. When we consider the report in 1988, a law has been passed in 1987 but despite that law, an answer to my question informed me that there was still discrimination against, for example, epileptics who could not have a driving license, certain mentally ill people could not work. They were prohibited from working.

182. Now, I'd like to know whether now in Japan, there are draft laws or bills which would tend to improve the situation, which I think is very serious, with regard to the mentally ill. This law on eugenic protection is still in force. It apparently made it possible to practice certain measures of restraint on the mentally ill to the extent that they could not give their consent, their real consent. This situation of the difference of treatment with regard to the mentally ill is all the more strange, because their responsibility is denied. They can't exercise an activity but they can be condemned to death. In March, 1993, one of the people condemned to death, according to the information we have received, one of the people was mentally ill. So they have a responsibility that they are, enables them to be responsible for their acts under criminal law but they can't have a job.

183. These then, Mr. Chairman, are my questions. I've tried to not to repeat questions that have already been asked and be as fast as possible. Thank you very much. I'd like to thank the delegation.

(23) QUESTIONS BY MR. PRADO VALLEJO (ECUADOR)

184. The Chairman. I give the floor now to Mr. Prado Vallejo.

185. Mr. Prado Vallejo. Mr. Chairman, I would also like to welcome the distinguished delegation of Japan, and I am certain that this dialogue will be as fruitful as the two previous ones. I was lucky enough to participate in both of these and they were very positive. I'm certain that with the competence of the Japanese delegation, we are going to have a much more useful dialogue in view of the progress made in Japanese legislation. Allow me also, Mr. Chairman, to express my satisfaction at having an opportunity in this Committee to have among us Mr. Ando. I have been lucky enough to know him and enjoy his friendship as from the time he joined the Committee, and as a member and now as the chairman. He has been of immense value, and we have been able to carry out our work in the implementation of the Covenant with his talent, his humanitarian feelings, and the way in which he directs our discussions. He has contributed a great deal to this Committee.

186. This report is a good one, like the previous ones. And the answers given by the distinguished delegation this morning have supplemented the picture with regard to the status of the Covenant in Japan. Mr. Chairman, however, there are some concerns still that other members have referred to, and I'd like to refer to certain concerns and ask certain questions of the distinguished delegation.

187. I would like to express my support for those members of the Committee who have referred to the non-ratification, the failure to ratify the Optional Protocol. We don't think that there is any justification in the report for not ratifying it. Reference has been made to this by Mrs. Higgins, and I think that Japan should promote the ratification of the Optional Protocol. What surprises me, however, is the fact that Japan has not ratified the Convention against Torture. This is a basic document in the field of human rights, and I really don't understand why Japan has not ratified the Convention against Torture. What is the problem? It would be very helpful for human rights if Japan ratifies the Convention against Torture because this would not any help internally in Japan but also internationally.

188. Mr. Chairman, what was said by the delegation with regard to children born out of wedlock does not justify the discrimination in this regard. The fact that they inherit half, illegitimate children, those born out of wedlock inherit half of what those to children born within wedlock, is open discrimination. And this takes place with regard to the name, the register of births, and I think that in this field Japan has an obligation under its responsibilities with regard to the Covenant to amend its law and give full equality to children, whether born within or outside wedlock.

189. Mr. Chairman, I was surprised at the many pieces of information given to us, particularly with regard to the second point with regard to police activities. It would seem that when there are male and female detainees, it would seem that the treatment of women is harsher than that for men. It would seem that the police treatment is more abusive when it concerns women. I think that something should be done to ensure that these acts committed against detained women should..., some measures should be taken to avoid this.

190. There are some positive points in this report, and I would like to refer to one. Paragraphs 88 and 89 of the report concerning the organization of the central office to promote the equality of women. I think that what is stated in the report and what has been said by the delegation, these are good measures which have given good results. Obviously, they show the Government is encouraging everything concerning equality of women.

191. And the report also states that the Government is promoting the participation of women in the international field, although this only seems to be one woman in this delegation. So obviously, women have to be promoted a little further in the international field, and the Government is quite right to establish this central office for the advancement of women.

192. My concern, Mr. Chairman, with regard to discrimination against Korean citizens despite the agreement reached during the visit of the representative of Japan in Korea, there still is discrimination in work and possibilities of employment and other kinds of treatment. So I think that the situation should be improved and other measures should be adopted to ensure that discrimination can disappear completely, as it has been with them for a long time.

193. I'd like to refer to another point that I consider to be very important. It's the policy of asylum for refugees followed by Japan. According to information available, I've drawn a conclusion that some reforms are needed in the application of this policy with regard to refugees in Japan. There is a restrictive attitude concerning asylum for refugees. It's not the treatment of those seeking asylum. It's not in accordance with international standards. The procedures followed are not what the international community has established. And this despite that fact that Japan has signed the Convention of 1951 on the Status of Refugees. Very often this Convention is not implemented, although Japan is a state party to that document and has an obligation to fulfill it. With regard to the procedures applied to consider cases of asylum and grant asylum, there are a very few cases in which asylum is granted in fact.

194. Also, Mr. Chairman, I think that I should point out my concern with regard to discrimination in the public service which seems to exist for non nationals in Japan. This, under the provisions in paragraph 44, we can draw this conclusion. In public service non-nationals are obviously very restricted with regard to employment policy, and the Government of Japan doesn't decide on this policy, but it has given powers to the municipalities in the country, and this means that everyone does as he pleases and there is no regulation for all to ensure that there is not discrimination. The municipalities have received the power from the Government in this area, and there is discrimination, and there should be public inquiries about discrimination against non-nationals. I should say that the only difference that the Covenant accepts is with regard to the political right to vote and to be elected, but otherwise all the rights under the Covenant should be respected and guaranteed for all nationals and non-nationals in a country.

195. And particularly it is stated that this policy must be based on the fact that certain important posts are not given to non-nationals because they exercise state power, or public decisions adopted. Non-nationals don't have a right to participate, and I would like to say that how can this state power be understood, how are these public decisions taken?

196. Paragraph 80 of the report speaks about the national institution for the protection and promotion of human rights. But it's not said whether these institutions are non-governmental or whether they are state institutions. It would seem that they have a little power according to paragraph 9 of the report. They don't investigate complaints. They can't decide on anything. They just make recommendations to the parties. Nor can they carry out investigations. I don't see how they can, institutions with so little power can really improve matters. And Mr. Kunikata, who seemed to be the director of this organization, perhaps he could tell us how they carry out these activities, these national institutions for the protection of human rights.

197. And lastly, Mr. Chairman, in paragraph 215 of the report, reference is made to the fact that the police have powers to prevent young juveniles, young people from buying certain books which may be harmful to young people. I'd like to know whether this is censorship or not. And what criteria are applied for the police to deny the sale, the buying of books by young people, and how it is decided they affect young people or not. This is all I wanted to say, Mr. Chairman, that I wish to ask, these are the only questions I wish to ask of the delegation. Thank you.

(24) QUESTIONS BY MR. WENNERGREN (SWEDEN)

198. The Chairman. Thank you Mr. Vallejo. I call of Mr. Wennergren.

199. Mr. Wennergren. Thank you, Mr. Chairman. First I want to welcome to the distinguished, large delegation from Japan. And I want to thank you both for your excellent report and for your introductory remarks today. I, like my colleagues, also want to assure you how much I appreciate the presidency of the Committee of Mr. Nisuke Ando. He is an excellent colleague and very wise colleague, and we've been working together now for many years, and I also appreciate him very, very much as the chairman of this Committee.

200. Now, I would like also to tell how glad I was to hear Mr. Itoh telling us that he was aware that there were many NGO reports given to the Committee, and that the delegation is willing to consider these reports and what is in them seriously. That was handicap last time in 1988 because the delegation, the Japanese delegation, had not received those reports and we asked questions from these reports, and it was difficult for the delegation to answer them then.

201. Now, I have some questions referring to Article 23 and Article 24, and I build upon material that is found in your reports. According to Article 23 paragraph 1, the family is entitled to protection. In a report from the Forum on Asian Immigrant Workers, we are told that children on mixed parentage can be separated from non-Japanese parent if he will be deported as an illegal resident or as an overstayed. And what can be done to protect the family in such situations? That is my first question.

202. The other questions relate to children, with a child that will be born by Japanese mother but has non-Japanese parent. Sorry, that was the opposite. A woman will have a child with Japanese parent but this Japanese parent has not acknowledge his child while in the mother's womb and then, then the child will not have the nationality, Japanese nationality. And the same will happen to children whose parents are not known at all. And they will become stateless. What can be done to help these children? According to Article 24, children should be protected, and they are entitled to acquire a nationality.

203. Then I would like to turn to what is said in paragraphs 21, 216 and 217 about corporate punishment in schools. That was discussed during the last consideration in 1988 too. Now, apparently there has been some improvements. But I'm wondering. Are these improvements really efficient? Is it possible to enforce this prohibition of physical punishment in schools? It seems, as it is, not efficient, and it is not possible to enforce it.

204. We are told here that if, after any institution instructs an investigation, a teacher is found to have punished a student, then he will be instructed and told not to do it again, and so on. But there are no punishment, no disciplinary measures or something like that. I would like to know if you are considering and strengthening of the protection of children in schools against corporate punishment.

205. Another issue refers to what many NGOs have put upon, that is the postwar responsibility. And they point out the nationality clause, and they mean that the nationality clause in postwar responsibility laws and acts could be looked upon as discriminatory. I would like to have some points of you on that nationality clause issue in those compensation acts. And then, there is a particular category of persons that have been left out of any kind of compensation, and those are called the military comfort women and that group. Are there any considerations to award them any compensation? They served, in many respects, the armed forces of Japan during the last war, but they have been left without any compensation.

206. Then I have some issues regarding the minority problems, but time is short. I just want to take up one thing with regard to Korean residents. As other colleagues have told, they have to be looked upon as a minority group, and they have to be looked upon as falling under Article 27. And the Korean schools in Japan have not been granted the status of ordinary schools in Japan. And as there are many Korean children that would need education in the Korean language, I'm wondering what could be done to improve the situation with regard to the Korean schools. And well, I think, as time is short, I should stop here. Thank you, Mr. Chairman.

207. The Chairman. Thank you very kindly, Mr. Wennergren, for taking account of the time. It's now the time to adjourn this meeting, and we shall reconvene at 15 hours for the next meeting.

RECORD OF THE 1278th MEETING

Held at the Palais des Nations, Geneva, on Wednesday, 27 October 1993, at 3:00p.m.
Chairman: Mr. Wennergren
The meeting was called to order at 3:00p.m.

(25) REOPENING OF THE MEETING; QUESTIONS CONTINUED

208. The Chairman. The meeting is called to order. The meeting will be proceeded according to the members of the list who wanted to ask additional questions under chapter one. If no one has any particular issue to raise before, we start with giving the floor to those speakers, then I will give the floor to Mr. Herndl. Mr. Herndl, you have the floor.

(26) QUESTIONS BY MR. HERNDL (AUSTRIA)

209. Mr. Herndl. Thank you, Mr. Chairman. As I find myself to be the first speaker this afternoon, I think it is only fitting to repeat some of the tribute which has been paid this morning. First I would like to welcome the distinguished delegation from Japan, who has come to Geneva to present and, if I may say so, to defend Japan's Third Periodic Report. I also want the delegation to know that I personally have the greatest respect for the member from Japan of this Committee, Mr. Ando, with whom I have worked since I started on this Committee three years ago, and who currently is our chairman. I have the highest appreciation for him, and I admire his contribution he has made to the work of this Committee, but also to the cause of human rights in general. He is dealing for many years now on intricate problems of human rights, and, as I said, he has made a contribution of his own. This is highly appreciated.

210. If it comes to tribute, I also want to say that the report as such is of high quality. I pay tribute to the drafters of that report, and I must say I think I know how much work and how much reflection has gone into this paper.

211. Mr. Chairman, let me now turn to the first series of issues of chapter 1 of our List of Issues and the debate thereon. I think most of what I wanted to say has been said, and I don't want to be repetitive, but I have at least to refer to some of the issues because I feel rather strongly about them.

212. Now, the first issue, Mr. Chairman, is that, and that is again a word of tribute, is that apparently in Japan there is great awareness of the Covenant. By whatever means, the fact has been achieved that NGOs and the individuals in Japan know about the Covenant. And I think proof of this is the abundant documentation which we have received in this Committee and also the many visitors who came to be present at this discussion. I hope that what the non-governmental organizations have to say on this will be taken into account by the Government of Japan. The Government is surely aware the abundant, again I use the word abundant, additional documentation which was presented by non-governmental organizations on the issues of implementation of the Covenant in Japan.

213. Now, the first and real substantive topic I want to address, Mr. Chairman, and I regret that it has to be the case again, is the relationship between the Covenant and internal law in Japan. And I would like to refer to Article 98 of the Constitution, which says that "this Constitution shall be the supreme law of the nation, and no law, ordinance, imperial script or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity".

214. And that leads me directly to the core of the problem if there is contradiction, diversity between provisions of the Covenant and the human rights as enshrined, the catalogue of human rights as enshrined in the Constitution itself, then, by the wording of the Constitution, the provisions of the Covenant would have no legal force whatsoever. Even if they were assimilated to domestic law. So this is my first question or query, I mean what really happens in the case of conflict.

215. In 1988, on the occasion of the discussion of the Second Periodic Report, the representative of Japan stated that no conflict between the provisions of the Covenant and Japanese legislation had ever arisen. This is in Summary Record para. 827. But I wonder, if there is a conflict, I mean, what then will happen as we have a set of definite norms on human rights in the Constitution, and another set of norms, again formulated in a different way, in the Covenant. I don't think one can give the easy reply which is given in the state party's report that the principles are there whatever the language. I mean, it also a matter of language, it is a matter of interpretation of the norms of the Covenant. This is my comment number one.

216. My comment number two concerns the issue of restrictions on human rights. Now, paragraph 5 of the report states that human rights may be restricted by public welfare. That's basically all. Then there is an attempt to explain what public welfare may mean, and that the courts are competent to deal with the interpretation of public welfare.

217. But, when you turn to Articles 12 and 13 of the Constitution you don't find any competence for the legislator or for the executive branch to restrict human right, because Articles 12 and 13 refer to the use of individual rights, the human rights, by the individual himself or herself. And Article 12, I just quote: "The freedoms guaranteed to the people by this Constitution, etc., shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights, and shall always be responsible for utilizing them for the public welfare". That means that a certain responsibility is placed on apparently the individual. And I think to a large extent that would contradict the notion of human rights, because inherent in the notion of human rights is the relationship between human individual and state. Human rights are rights which belong to the individual, which have to be respected by the state and its organs. And it cannot be an obligation on the individual to utilize or to be responsible for utilizing his own human rights for the public welfare. This, I think, is somewhat a contradiction built into Articles 12 and 13 of the Japanese Constitution, and in any event a contradiction with the explanation given in paragraph 5 of the report.

218. I don't want to speak of the concept of public welfare, that has been done by other speakers. I just want to say that according to the Covenant only specific rights can be restricted in certain interest of public order or whatever. But I mean that there are certain rights which can not be restricted by the state.

219. My third comment concerns the issue of equality and what has been said about the equality of women. I have noted, with some concern, the sort of divergent opinion between the government and the ILO committee of experts on the issue of equal remuneration. I don't want to refer to the fact that it seems that women apparently as a fact are assigned only lower paid jobs, and that a survey showed that only 23 per cent of enterprises said that they would assign females to all jobs, while the others stated that they assign them to jobs, and now I refer to some very euphemistic language, "to jobs where they can display their characteristics and sensitivities as females". Of course, that is in itself a statement of a certain discriminatory practice.

220. I also want to say that I support Mr. Sadi and others who have spoken about the certain extent of discrimination of children born out of wedlock in respect of the law of inheritance, in respect to the necessity of registration, and that like.

221. I also want to quote, in the context of my remarks on equality, Article 14 of the Constitution. Article 14, which says that "there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin". Now that is limitative in two respects. First of all, the question is whether the reasons given for an authorized discrimination are sufficient. Is it only `race, creed, sex, social status or family origin', because it is not said 'inter alia' or something general, but also as to the substance, no discrimination should take place in political, economic or social relations? Now, that is a restriction in respect of other issues such as cultural relations affecting minorities, etc. So, I wonder whether these two restrictions really are to the extent to which they are applicable, and I would appreciate a word of explanation on this issue of restrictions.

222. Now finally, Mr. Chairman, I turn to the treatment of specific groups in Japanese society. Article 26 on equality and Article 27 on minority: I mean these provisions of the Covenant would refer. And I would first speak a little bit about the Ainu population where we have been given some sort of explanations on their treatment under Article 27. But my question is: is it really true that the basic norm on the Ainu people remains the Hokkaido Former Aborigines Protection Act, which was enacted in 1899. So, very soon we are going to celebrate the 100th anniversary of this Act. It speaks of the Ainu as the Hokkaido former aborigines, and it speaks of their protection. It is called the 'Protection Act'.

223. And I think that it would probably be timely to revise this Act as other countries have done, and stamp out any discriminatory practices which may still be legalized by that Act. What is necessary is that minorities receive appropriate treatment under Article 27, and that in addition, the state takes measures to protect them so as to protect their existence as a group.

224. The other part of Japanese society I want to refer to is the Dowa people, who are commonly referred to as the Burakumin. And, of course, the report contains in paragraph 230, a short remark on the Dowa problem. And we have received additional information on what the Government has been doing over the past years in order to improve the lot of the Burakumin. Now Mr. Chairman, this is of course an issue which was debated already five years ago, in previous reports. We all know that there is the group of Burakumin in Japan who is, in a way, is still being discriminated, although in good faith the Government would take measures to improve their fate.

225. My appeal would go in the direction that every possible measure should be taken in order to integrate this part of Japanese society into the whole of the society, and that perhaps not in this generation but in the next generation, there should be no further distinction between the ordinary Japanese and what the report terms `the Dowa or the people of Dowa province', and I think that this is one of the essential features of the equality clause of the Covenant.

226. The third group I want to refer to is the so-called Korean residents. And I have noted with great pleasure that in respect of the Korean population, certain measures have been taken to integrate them better into the existing Japanese legal system and the society.

227. I refer to the fact that Japanese nationality is required for civil servants who participate in the exercise of public power or in public decision making; Paragraph 44 of the report. And I would say that this is very legitimate concern. I mean normally civil servants who do exercise executive power, these positions are reserved for own nationals. I consider that what is stated in paragraph 46 of the report is a very progressive and positive attitude of the Government, namely, that in the field of education there is no exercise of public power. And hence, Korean residents of Japan, I mean, are even encouraged to take up regular teaching in schools. I think this is progressive and should be so commended.

228. Another matter is, of course, the integration of residents of Korean nationality into the Japanese society. And there again, I come to questions which have been put already by other speakers. I mean, would it not be helpful and good for the development of Japanese society in the long run, if what is now called the nationals of the Republic of Korea residing in Japan, and we are speaking of third generation people, were integrated into the society in a better way and could obtain Japanese nationality. We know that all children are entitled to acquire the nationality of Japan. I refer to Article 2 of the Nationality Law. And I think one should make an effort to bring in the long run, and it's also a generational problem, I mean, those people fully into the Japanese society, instead as treating them as aliens with a residents permit, and with all the legal problems to which other speakers have referred. This is all that I have to say, Mr. Chairman. I mean these are my comments on the first chapter, and I thank you very much.

(27) Questions by Mr. Lallah (Mauritius)

229. The Chairman. Thank you Mr. Herndl. Mr. Lallah, you now have the floor.

230. Mr. Lallah. Thank you, Chairman, for giving me the floor. In order to economize time and to engage in a practical and workman like manner in the dialogue, I will not ask any questions because we would be wasting time. My colleagues have asked all the concerns that I had about a number of matters which have been raised by Mrs. Higgins, Mr. Mavrommatis, Ms Chanet and others. I will reserve my time for the second chapter, on which I have many concerns.

231. But since I have the floor, it would show a lack of courtesy, Mr. Chairman, if I didn't join my colleagues in welcoming the delegation, joining my colleagues in the tribute that they have paid to the enlightened chairmanship of Mr. Ando whom the Government has made available to us. If I didn't pay tribute to the good quality and detailed report that we have in front of us, and the most helpful introduction that has been made to the report by Mr. Kunikata. So, having said this, I will give the floor to someone else and reserve my time for the second chapter. Thank you Mr. Chairman.

(28) Questions by Mr. Celli (Venezuela)

232. The Chairman. Thank you, Mr. Lallah, for your cooperation. We will economize with our meeting time in that way and you will come back under chapter two. Now, I give the floor to Mr. Bruni Celli.

233. Mr. Celli. Thank you, Mr. Chairman. I would like to join my colleagues in thanking the Government of Japan for the very detailed report presented today, and Minister Itoh for his introduction, and Mr. Kunikata who gave us answers to section one of our List of Issues. I would also like to save some time, and so I will only say a few things. I attribute very special importance to Japan's report. First, because it is a leading country internationally, and the importance it has given to human rights both internally and by the fact that it has attached very special importance to human rights in its foreign policy. As a leading country, its work on human rights, particularly in Asia, provides a very important example. And, finally, something that is no less important: their active presence in this Committee, with President Ando, whom we consider one of the best experts in this area.

234. I had some points here, but I am only going to refer to one, concerning equality between men and women. We see that in the report it is stated that Japan has made great efforts to take measures to advance the status of women. It has acceded to the Convention on the subject in 1986, and adopted legislation in 1986 and 1987, on this, and revised the plan of action subsequently on the equality of women.

235. The number of the members of the Diet in the Chamber of Representatives and the Chamber of Councilors, we can see that in these bodies, there are not very many women yet. But in the public administration, there are far fewer women in proportion. According to the report, women who are heads of office only account for one per cent in the public service. These statistics come from 1974 and so on. However, in 1976, for example, for heads of offices, 14 years later, there's been practically zero percent change, and the same for heads of sections, there's only 0.7 per cent in 1990 who are women. So, I would like to ask whether this is a cultural problem, a political problem, an educational problem. There have been a lot of changes in the Diet, in the Members of Parliament. There have been more changes there than in the public service. And I would like to reserve the right to ask my other questions subsequently in order to gain time now. Thank you.

(29) Questions by Mr. Ndiaye (Senegal)

236. The Chairman. Thank you Mr. Bruni Celli. Mr. Ndiaye, you have the floor now.

237. Mr. Ndiaye. Thank you, Mr. Chairman. Mr. Chairman, allow me first and foremost to express my very warm congratulations to the large delegation from Japan. And a very competent delegation it is, too. They have also provided us with a very good third report, that is excellent and detailed and very frank on the whole. But, before going any further, I would like first of all to say how satisfied I am, as well as my colleagues, with our work with our current chairman, Mr. Ando. He is a competent, devoted and hard working person, and he is always courteous, which helps.

238. I only have one reproach, and that is he did not suggest that the Committee could hold its session in Japan, which would have satisfied the curiosity of the Japanese population, and possibility of some members of the Committee, including myself.

239. Mr. Chairman, when we considered the Second Periodic Report of Japan, I stressed that for countries seeking to affirm their identity, like my own Senegal, Japan is a particularly interesting example because it is a country with a very ancient civilization which has modernized, and now has the most advanced science and technology. It is a country who{R€ {Eitions are bz_° on certain values, such as respect for the husband, and this is also stressed. So in countries like this respect for human rights may give rise to problems.

240. And I would conclude by asking the following question: is there not any resistance to these advances in the population? I would ask this question again, because in paragraph 89(a) of your Third Report there is a re-appreciation of informing people's awareness regarding the inequality between men and women. The aim is to correct stereo sex role concepts, to promote the advancement of women, not only in terms of legislation and institutions, but also (in) practice.

241. It also aims at enhancing awareness of the importance of maternity and the dignity of sex, and promoting maternal protection. And I will continue with subparagraph (b) of the same paragraph 89, on page 18 of the English text, where you speak about the medium and long-term program which seems to prove there really, is certain disharmony between the will of the Government of Japan, shown in the legislation and the regulations, and the average conduct of the Japanese which shows a certain resistance to these rights. And this doesn't really pose a problem of international responsibility for Japan, but it does pose a problem, it has consequences for the basic options and perhaps there is an effort to be made in the field of education in human rights. Because it is at that level that the problem of the applicability of human rights arises.

242. I would like to inform the delegation of Japan of how grateful we are that it has submitted the reports of NGOs, and we welcome them here in their members in the room. Perhaps they could contribute to publicizing the various comments that we make, so that under Article 40 of the Covenant, this can help you to improve your system further.

243. Some comments now in conclusion. I think, and I won't be very long on this, because Mrs. Higgins has said of most of what I wanted to say. I think that Japan should make an effort to accede to the Optional Protocol. I don't think that it should be concerned about the relationship to its legal machinery, subsequently, and the international machinery for the Protocol. As has been stated, there is the rule for the exhaustion of domestic remedies, and also the Committee can respond to any possible abuses in our jurisprudence. We already have cases which we can show you how we monitor the serious nature, and the basis, and the arguments on which these communications are based.

244. So I don't really understand why Japan doesn't accede to the Convention on the Elimination of All Forms of Racial Discrimination; why you have not acceded to the Convention Against Apartheid. I understand it still less because I know about all the efforts that Japan is making, and has made, and continues to make to fight against apartheid, not only diplomatically, but financially and monetarily, because programs are underway in Japan that make it possible to develop information on South African nationals; I can see it in paragraph 31 of the report.

245. And I understand even less that, for example in paragraph 35, you say that the Constitution of Japan, recognizing the importance of the dignity of individuals, guarantees equality under the law by the provisions of its Article 14 paragraph 1, which says "for all of the people, there shall be no discrimination because of race, creed, sex, social status or family origin". So these are fundamental provisions which are entirely in conformity with and often equivalent with those found in the Convention Against Apartheid, the Elimination of All Forms of Racial Discrimination or the Convention on the Elimination and the Punishment of the Crime of Apartheid. I think that the question deserves to be considered.

246. It is a problem that doesn't only arise in Japan. In general, all the countries, which are dominated by the ideology of religion, have problems in giving equal treatment to natural and legitimate children. Sometimes there is discrimination between natural children and those who are the result of adultery. But I think that your legislation should be drawn into line with Article 24 of our Covenant.

247. According to the enormous amount of information which we have received from NGOs, there seems to be some discrimination in the establishments and companies, and certain enterprises. And this discrimination leads to abuse in sacking people. And there is discrimination based on endurance, the ability to work for as long as possible. We have also been told (that) in one company it was necessary to work for over 14 hours a day, otherwise one was considered not very good, and one risked losing one's job. Among all this information that we have received from the NGOs, we have some information concerning former soldiers and veterans who were complaining of not having been given the same treatment as their colleagues of Japanese nationality. This documentation, which I can give you, if necessary, concerns the jurisdiction of the Committee, and is cause for us to see whether Article 26 of the Covenant is in fact being violated or not. We should look at this with you. That is all I would like to say now, but I may come back and ask further questions on other Articles of the Covenant subsequently. Thank you, Mr. Chairman.

(30) Questions by Mr. Aguilar (Costa Rica)

248. The Chairman. Thank you, Mr. Ndiaye. Just one speaker left on the list of speakers, and there is Mr. Francis Aguilar later on, then. I now give the floor to Mr. Aguilar.

249. Mr. Aguilar. Thank you, Mr. Chairman. I didn't really want to be the last, because in fact all the questions which I wanted to ask have already been dealt with. I would like to welcome the important delegation. It is one of the most impressive I have ever seen, particularly because they are so well prepared. And I would like to join my colleagues who have paid tribute to Mr. Ando, who is our chairman, and he was my only neighbor for four years. I had a great honor to arrive in the Committee and find myself on his left. He was on my right. And my first experiences took place with his assistance. And I am very grateful to him for all that he has done to make me feel at home as a member of this Committee.

250. Mr. Chairman, I do not want to take the floor on questions that have already been referred to, but I am going to ask a couple of questions very briefly to strengthen what has been said by my colleagues already.

251. My first concern is what is the exact position or status of the Covenant with regard to Japanese legislation. In consideration of the first two reports, and particularly the Second Periodic Report, the Committee was told that the treaties and the Covenant should not be changed through internal legislation, and that they were an integral part of national legislation. But on various occasions, Japanese courts have stated, and I am going to quote a specific sentence of the 30th January, 1990, of the District Court of Tokyo, which says that: "The norms of the Covenant are not self executing". In other words, this is a view that is absolutely radically opposed to what was told to us before. So I would like to know exactly what the status of the Covenant is in Japanese legislation.

252. It has also been stated by members who have proceeded me in taking the floor who have referred to the various kinds of discrimination against women, against minorities and illegitimate children. There are many of these cases, and specific cases have been mentioned, and I would like to join all the colleagues and endorse what has been said by my colleagues previously. But I would like to mention two cases which I personally think are very important.

253. And, the first concerns illegitimate children. We have seen the question of inheritance and particularly the question of the name, and the fact that they are not registered, and they are not given a name, as is given to the other Japanese children. I think that this is very regrettable. Particularly, because, as Mr. Mavrommatis already said, it is something which, in addition to being related to discrimination, in addition to being perhaps a form of discrimination, is related to inhuman and degrading treatment and punishment under Article 7. These children, who are not to blame in any way, are blamed by society and discriminated against by society and by Japanese legislation. And so, I join in what was said by Mr. Mavrommatis, and I would like to urge the Government to change the legislation radically, and to provide a very greater in-depth form of education on this to ensure that this kind of discrimination against children born out of wedlock ceases.

254. And there are also differences between families that are married and de facto families, or common law families. I remember, for example, with regard to Article 23, that it is stated that measures have been taken to protect families without a father after a divorce. But nothing is said about families when there was never a father. And this is discrimination because there is discrimination between families that have no father after a divorce, and between the family where there has never been a father. For example, mention is made of subsidies for the protection of the children, of protection of the family, but nothing is said about common law families in which the parents are not married, but just live together.

255. Another subject of serious concern on discrimination was the last point raised by Mr. Ndiaye, and this concerns people who offered their lives, who put their lives in danger during the War in the Japanese Army in the Second World War, and now they are deprived of the enjoyment of the rights that are given to other people who are in the Japanese Army. Some of them had Japanese nationality in the past, but, because of the situation after the War, they became citizens of other countries. And they were discriminated against in those countries because they had been in the Japanese Army. But there is a difference that is made between veterans who are Japanese nationals and non-Japanese. The nationals can enjoy the benefits of veterans, but Korean and Taiwanese veterans do not have these benefits; they do not enjoy these benefits. Mr. Ndiaye mentioned the Gueye case, which became before the Committee, as a communication. I would like to see how this is considered in light of the jurisprudence of the Committee.

256. Having said that, I would like to go on to certain points, specific points in the report. A few points. Public welfare, that we are told about. When Mr. Kunikata, this morning, referred to the question of public welfare with regard to the restriction of the rights in the Covenant, he said it was a question of a conflict between two rights in the Covenant. And in that conflict, in certain cases, the legislation protected one right over and above another. And he gave us a specific example concerning the honor of a person with regard to freedom of expression. However, in the appendix to the report, there is some decisions of the Supreme Court of Japan, of 1980, which says by this decision the right of this person to life, this is one of the rights, from which there is no derogation under any circumstances, could be restricted or legally suppressed if there was an attack on public welfare. However, public welfare is not defined. And it could be defined in so many different ways. So this is a contradiction with the Covenant which I think is extremely serious.

257. There is another question that I would like to look at, when it is stated that a foreigner can not be expelled or deported in principle to a country where he may be persecuted. I would like to know what are the exceptions, because if this exists in principle, this means that there are exceptions, and when a person can be sent to a country where his rights may be violated.

258. As for discrimination against women, I should also like to know two specific things. One Mr. Bruni Celli has already dealt with. The report tells us in paragraph 92 that women occupy administrative posts, but the Table says that there are only 0.7 per cent of women in offices. And there is a policy here. But there is something else, because we are told that there is a Law of Equal Opportunity in Employment. But only 20 per cent of enterprises have created opportunities for women. And I would like to know how these companies manage to get out of applying the Law. We are also told that nearly all companies, in paragraph 93, have set different retirement ages for men and women.

259. Finally, I would also like to refer to something connected with Article 24. We are told, I don't know if this fits here, but the report deals with it under Article 24; it says that censorship by the police with regard to printed matter that might lead young people to prostitution. I think here there is a mistaken idea of what society should be, and that it needs protection. But it says that the police seek voluntary self-regulation of the printing industry. How voluntary can it be when a policeman or the police force comes and knocks on your door and tells you to submit your publications for censorship. So I will conclude here. I just wish to urge the Japanese Government to ratify the Optional Protocol. Whereas in the Covenant we have a rule which prevents us from receiving communications overall.

(31) Questions by Mr. Francis (Jamaica)

260. The Chairman. Thank you, Mr. Aguilar. Now, Mr. Francis, the last speaker on the list. You have the floor.

261. Mr. Francis. Mr. Chairman, first of all, may I join my colleagues in their expression of goodwill and appreciation to the delegation of Japan and their presentation of this report before us today. The delegation headed by our distinguished Ambassador Endo, and down the line we have Minister Itoh. To all other members of the delegation, I extend my greetings. I wish to thank the delegation for their excellent presentation of an excellent report, and the tribute given by members of the Committee is in clear appreciation of all of us together.

262. Mr. Chairman, reference has been made to the presence of NGOs by very many speakers on this occasion. And their presence here indicates something more than Japan's dissemination of the contents of the Covenant to them. That is on the credit side. But, Mr. Pocar spoke and indicated that despite the improvements in Japan in relation to human rights, improvements made on a really good record, there was yet a lot to be done. And I would like to use the presence of the NGOs, and the material that they have circulated, as an evidence of the negative side, which needs to be looked at. And I am encouraged, as my colleagues have been, by the assurance given that the issues raised by the NGOs in their documentation will be taken up by the Japanese delegation.

263. Mr. Chairman, the members of the Committee have expressed in eloquent terms their preoccupation with certain basic themes. One is the relationship of the Japanese legal regime to the Covenant. And I have expressed a need for steps to be taken to harmonize the legal situation with strict compliance with the requirements of the Covenant.

264. Another point which I would like to emphasize, as they have, is the need for Japan to move forward to the ratification of the Protocol, as it is considered in their own interest as a leading power to do so, and set an example for other people in the region.

265. Mr. Chairman, enough questions have been raised, and I have two questions really. Others which I would have raised have been raised by other members. But I preface my comment on these two issues by saying that it occurs to me that, in the modern world, a nation is as great as its women and children make them. Because the women I think is the overridingly important part of the procreation process and the children are the living example of the generation to come, to take over. Unless these two elements are, these two components are well nurtured, then the society tends to disintegrate. And we hope that this will not happen in Japan, on the verge of being one of the super-powers.

266. It is in that context that I wish to raise these two questions. One of them this morning touched upon you, Mr. Chairman, when you spoke on the question of punishment, of corporal punishment in the schools. And you rightly drew the conclusion that the law might not have had any positive penalties. I will take that a bit further by suggesting that if the School Education Act, Article 11, did not provide a punishment for infringing the prohibition, then it ought to do so. But I also assume that there is provision, which is my assumption. If that is so, then why has there been no punishment visible, that is, other than caution, to those persons who have infringed the prohibition.

267. Mr. Chairman, it seems to me that in regard to children, there needs to be a proper rapport between teachers and students. And the worse thing, that could happen in this age, is for violence to be introduced in that home, in the classroom today. Worse still, if in a particular case, if a child has domestic problems. What I am trying to indicate (is) that this could be one of the streams through which violences on the streets in other societies are procreated.

268. The next question I would like to raise, Mr. Chairman, relates to the welfare crimes, which is mentioned in, I think it is in paragraph 212, subparagraph (b). It is mentioned in that paragraph that the prefectural police stations offer counseling by telephone. And given that in 1990, there were some 31,000 people calling for assistance over the telephone exchange, attention has to be given to a cure at another level.

269. My question therefore is: has there been any institutional counseling service through the various school levels aimed at preparing children and pupils for the social problems that will confront them as they grow up, leading to the welfare crimes mentioned in paragraph 215 of the report?

270. Mr. Chairman, these are my few comments and questions, and I wish to thank the delegation of Japan once again for their excellent report and their excellent presentation of it. Thank you, Mr. Chairman.

271. The Chairman. Thank you, Mr. Francis. Members have now exhausted all additional questions that they wanted to submit.

(32) Responses of the Japanese delegation to the supplementary

questions under chapter one of the list of issues

272. The Chairman. And it is now the time for the delegation to try to answer all these questions. I have not counted them, but I think that they amount to about fifty specific questions. You will try to organize and arrange them in the best possible way, and, Mr. Kunikata, you are free to give the floor to any of the other members of the Committee, or your delegation, if you want to do so. But I think you would like to start first yourself. The floor is yours, Mr. Kunikata.

273. Mr. Kunikata. Thank you, Mr. Chairman. Thank you very much, the distinguished members of the Committee, for the questions. Well, frankly speaking, a very large number of questions were raised, and it was rather difficult for us to streamline those questions. But anyway, let me try to answer the questions as far as possible. And let me try to answer the questions, not in order of the provisions of the Covenant, but at random basis because we are now still preparing some part of the answers to your questions.

(33) The status of women in Japan

274. There was a question (which) concerns the status of women in Japanese society, namely, the equal treatment between men and women is not fully realized, or why the ratio of women's participation in social activities is so low. As reply to this question, the explanation I would like to provide as a reply to this question. Namely, the new Constitution instituted in post-war Japan guarantees respect for the individual and equality as between men and women as a fundamental principle, under the initiative of legislative measures. Based on these principles, various democratic legislative reforms were implemented that resulted in fundamental changes and improvements in the legal status of Japanese women.

275. However, in Japan, the traditional so-called gender role concepts are still strong, and those concepts have been one of the obstacles to achieve the equality between men and women. For example, according to the result of the recent opinion poll, which was conducted by the Japanese Government in 1992, the percentage (of) those who agreed with the traditional gender role concepts, that is, "men should go to work in order to earn money and women stay home", was 60.1 per cent, beyond the majority, although it has gradually decreased. And as to the question whether the status of men and women are equal in certain areas, most men and women answered that men are treated better in terms of politics, social standards, customs and traditions and so on.

276. And, in order to improve the status of women and to achieve the de facto equality of men and women, the Government of Japan has designated special days, weeks, and months, with the purpose to inform the public of the government policies and objectives, and to correct traditional so-called 'gender role concepts'. And during such periods, various awareness raising activities are carried out.

277. And, taking fully into account of the use of opinions from the members of this Committee, our Government will continue our efforts towards the full equal treatment between men and women, and the further enhancement of the status of women in our society.

(34) Problems relating to the 'Buraku' and 'Dowa' peoples

278. The next point. I would like to touch on the so-called Buraku or Dowa people. And, as I referred to in my replies this morning, in order to improve the living conditions of the Dowa people, our Government has pursued relevant policies, based on three laws for special measures for 24 years. And thanks to the promotion of these measures, vast improvement has been seen in the living environment, and other inferior conditions in the Dowa districts, so that in general the gap between Dowa and other districts has been narrowed to a considerable extent. Moreover, advances have been made in the elimination of psychological discrimination. It is true that gaps are still existing, and we are quite aware of the necessity to solve this problem as soon as possible. And, taking fully into account of the opinions expressed by the distinguished members of this Committee, we would continue our efforts to solve these problems as soon as possible.

(35) Derogation from the provision of the Covenant

279. There was a reference to Article 4 of the Covenant, concerning the derogation from the provision of the Covenant. And we believe that it is most unlikely that this Article would be applied to Japan. And having said that, we have various..., we will just..., therefore, the provisions of laws or regulations concerning the state of emergency, or the emergency conditions, is very limited. And we found just one article in the Self Defense Force Law, namely, concerning the mobilization for public peace by order.

280. Article 78 of the Law stipulates that: "the Prime Minister may, in a case of indirect aggression or any other emergency, if it is considered that public peace will not be maintained by the general police force, order the mobilization of all or part of the Self Defense Forces. The Prime Minister shall, if he orders the mobilization in accordance with the provisions of the preceding paragraph, refer such order to the Diet and ask its approval within 20 days after the day when he gives such an order. If the Diet is out of session or the House of Representatives is dissolved, such approval shall be promptly asked at the first session of the Diet convened thereafter. In the case of the preceding paragraph, if the Diet adopts a resolution disapproving the mobilization, or if the need of mobilization ceases to exist, the Prime Minister shall promptly order the withdrawal (of) the Self Defense Forces".

281. And this is the only provision which might affect our obligation under Article 4, but I would like to stress that this Article has never been utilized in our history.

(36) Refugees policy

282. The next point is concerning the Japanese policy toward refugees. We have the recognition that the refugee problem is not only a humanitarian issue, but also the issue which could affect the regional peace and stability, and with this recognition, our Government has been actively tackling the refugee problem. And as for the Indo-Chinese refugees, the large part of them is the refugees from Vietnam. From the viewpoint of humanitarian assistance as well as the contribution to the peace and stability in the East South Asian region, our Government has decided to receive up to 10,000 Indo-Chinese refugees. And as of the end of August this year, totally 9,001 people have been received and socially integrated in Japan. And for those people, the Government has been providing Japanese language courses, or the relevant information or briefings or help so that they would be socially integrated into the Japanese society as smoothly as possible.

283. After the ratification of the Convention of Refugees of 1951, our Government has been faithfully implemented the obligations under this Convention. And before the ratification, in order to secure the full implementation of the obligation, we changed the Alien Registration Act, and the name of this Act was also changed to the Alien Registration and Refugee Recognition Act. And in the implementation of this Act, if the asylum seeker is recognized as a refugee under the affirmation of the Convention, we receive them, or if they so wish, we will send them to a third country, where they will be able to live safely. And in this Act, the so-called 'non-refoulement' principle is also provided. Namely, we never sent back those people to their home countries where they might be politically prosecuted.

(37) Problems relating to foreigners becoming public servants

284. There was also a question concerning the eligibility of people who are living in Japan, but who do not have the Japanese nationality. And it is generally understood (that) Japanese nationality is required in Japan to take up an occupation which in part involves participating in the exercise of public power or the forming of public consensus, and whether or not the duty of a public servant is to participate in the exercising of public power or the forming of a public consensus, must be individually determined, as public servants have too varied duties to establish uniform standards. And it has also been generally understood so far that the above requirements are not applicable to nurses and mailmen.

285. In addition, even those, who do not have a Japanese nationality, are entitled to become national or public university instructors and research public servants at national research institutes in Japan. As a result, many people who have foreign nationalities have been adopted as these categories of public servants.

(38) Problems relating to the employment of the mentally ill

286. There was a question concerning the restriction of job opportunities for the persons with mental illness. Interpreter could please refer to number 17. If a person with mental illness shows severe symptoms, such as hallucination or delusions, then he or she is disqualified from particular jobs to protect his or her own interests and prevent accidents.

287. On the other hand, improved treatment, techniques, and newly developed medicines allow some persons with mental illness to live similarly to those who do not suffer from a mental disease, as long as they continue going to a hospital and take medicine. Therefore, the Mental Health Law was partly amended in June this year to relax the existing regulations, resulting in the introduction of a relative disqualification system, when whether or not a person with a mental illness is entitled to become a cook, a dietitian, or radiation technician, is determined depending upon his or her symptoms, instead of the absolute disqualification system when such a person is not entitled to get those jobs. In addition, efforts are being made to continue reviewing the regulations to prevent the employment of persons with mental illness from being unfairly refused.

(39) Problems relating to corporal punishment

288. There was a question concerning the physical punishment by teachers on pupils. It is strictly prohibited by the School Education Law that teachers give corporal punishment to students. This is provided in the School Education Law in Article 11. However, it is highly regrettable that there are not a few cases of this kind every year.

289. Disciplinary measures by way of corporal punishment may trigger the violation of the reliable relations between teachers and students, and no educational effect can be expected. Therefore, the Ministry of Education has tried to make a point of the prohibition of corporal punishment fully understood by publishing guidance repeatedly, as well as by giving instructions in various meetings. The Ministry intends to continue its guiding efforts to annihilate the corporal punishment by making use of every opportunity.

290. And after the ratification of this Covenant in 1979, the number of teachers who are subjected to disciplinary action because of giving corporal punishment accumulated to 434 in the twelve years from 1980 to 1991. The Ministry of Education has asked the boards of education to observe service regulations of teachers. Against those who violated regulations, the Ministry responded strictly, and instructed them not to repeat such a scandal by urging the teachers to reflect on their own conduct. The Ministry will continue to guide the teachers to strictly obey the service regulations, in order not to repeat the illegal conduct, such as corporal punishment.

(40) Problems relating to Korean residents in Japan

291. Concerning the questions with respect to the Korean residents in Japan, I would like to respond partly to the broad questions, and one of my colleagues, Mr. Watanabe, will give you replies concerning questions relating to his authority. And before giving you replies to the questions, let me explain a brief history of the Korean residents in Japan. Namely, in August, 1945, as the Japanese Government surrendered by accepting the so-called 'Potsdam Declaration', the Korean residents in Japan were around two million,(i.e.) two million Korean residents were living in Japan. And the Japanese Government supported those people, if they so wished, to return to the Korean Peninsula, and as a result, around three-fourths of those people, namely around 1.5 million Korean people, returned to their home country, and the remaining one-fourth, namely 400,000 people, remained in Japan on their own wills. And the Korean residents who are residing in Japan, the majority of them is the afore-mentioned people, plus their descendants. After the enactment of the Peace Treaty between Japan and Korea in April in 1952, the Japanese Government has been approving their naturalization, provided that the necessary conditions are met. And up to now, 130,000 Korean people were naturalized into Japanese society. And as of the end of 1986, the number of Korean residents in Japan is 680,000 people. So, this is some background before referring to your questions.

292. There was a question concerning the 'pass discount' for Korean students. The applicable range for the school pass discount is specified, based on the school classification under the School Education Act, and the discount rate is also based on the school classification. Thus the discount rates for elementary, junior high school, and high school students specified in Article 1 of the School Education Act are not applicable to students of alien schools, including Korean schools, as well as those of advanced courses of special schools. Therefore, if the same discount rate as specified in Article 1 is applied to alien school students, it must also be applied to the students of advanced courses of special schools, and the simple discount system as used by private railways, which does not depend on the school classification, should be introduced to eliminate the gap between school attendance and discount rates.

293. And as far as I know, this is a matter concerning the authority of the Ministry of Transportation. But as far as I know, they are now considering to amend the relevant regulation so that the students going to the Korean schools will also be benefited in terms of the pass discount.

294. The next point is the education system for Korean people in Japan. The 'Japan and Korea Sansei Conference', concluded in January 1991, proclaimed that it is allowable to give, at each local self-governing body's discretion, Koreans in Japan who are enrolled in schools specified in Article 1 of the School Education Act, opportunities to study Korean or Korean culture as extra-curricular activities. And these activities are performed at each self governing body's discretion with the status of such students considered. In addition, those aliens, who are judged to surpass high school graduates in scholarly attainments, are essentially entitled to enter colleges in Japan.

295. On the other hand, most alien schools in Japan are authorized and operated by governors as special schools. However, as no particular legal regulations are provided for the contents of education at special schools, it is difficult to certify that a particular special school graduate surpasses high school graduates in scholarly attainments. Therefore, they are not entitled to enter colleges in Japan.

(41) Problems relating to health insurance for foreign workers

296. The next point is the health insurance. Under the health insurance system in Japan, the legally permitted foreign national workers, regularly employed by applicable enterprises, are eligible to be insured. But it is not feasible to apply health insurance to short-stay foreign nationals and foreign students, who are not permitted to obtain regular employment in principle. The foreign nationals, employed by the enterprise with less than five employees, are also eligible to be insured if such an enterprise falls within the following categories: Firstly, a corporation, or secondly, an enterprise having participated in the health insurance system at its own discretion.

297. In addition, temporary or seasonal workers can be insured under the health insurance system as the daily employment special insured. In other words, as far as the health insurance system in Japan is concerned, there is no restraint in terms of, and regardless of nationality; so, everybody can be

(42) Post-war compensation

298. The next item I would like to touch on is the so-called post-war compensation. Interpreter could please refer to number 15. Before giving a reply to the question, I would like to say that we are not so sure whether this meeting (or) this occasion is the appropriate opportunity to give such a kind of an answer to you, because this issue took place before the adoption of the Covenant in the United Nations, and before the ratification by the Japanese Government of this Covenant.

299. But, having said that, the Japanese Government has sincerely dealt with the issue of claims for damages it caused during World War II, in accordance with the San Francisco Peace Treaty, bilateral peace treaties, and other related treaties. The way in which compensation for war injuries are dealt with under the domestic law of Japan is quite diversified.

300. Most of the systems of compensation require recipients to be of Japanese nationality. However, they are based on rational reasons. For example, the nationality requirement is incorporated into the 'Aid Law for Surviving Family of the War Dead and Injured', for the following reason. Aid provided under this Law has the characteristics of government compensation for certain war injuries incurred by military and para-military personnel and others. The scope of the aid recipients, the contents of the aid, and other related matters are questions of legislative policy, whose policy decision is of an extremely high order. It is understood that, as part of the circumstances behind the enactment of the Aid Law, the issue of property and claims between Japan and the areas which became separated and independent from the former after the war, was intended to be the subject of special arrangements between the two. The nationality requirement of the Aid Law was established in these circumstances, and is difficult to be rescinded.

301. As for claims for war injuries by foreigners against the Japanese Government or Japanese citizens, they are not prevented from bringing them, those cases, in front of a domestic court in Japan. And these cases are decided individually by the court.

302. The Japanese Government, in any event, expresses its profound remorse and apologies for the fact that past Japanese actions caused unbearable suffering and sorrow to so many people. And Japan will demonstrate its new determination by contributing more than ever before to world peace.

(43) War time comfort women

303. And in this connection, there was a reference to the so-called comfort women. The Government of Japan started a study on the issue of war time comfort women in December 1991, by examining the relevant documents stored in several ministries and agencies, and announced the findings of the study in July last year. It then continued a search for relevant documents by extending the scope of the study and conducted detailed hearings on many former military personnel and others concerned, such as comfort station owners. In addition, the Government of Japan conducted hearings on former comfort women in the Republic of Korea, and announced the findings of the study on August 4th, this year.

304. In the review of the results of the study, the Government of Japan extended its sincere apologies and remorse to all those, irrespective of place of origin, who suffered immeasurable pain and incurable physical and psychological wounds as comfort women. The Government of Japan has sincerely dealt with the issue of claims, including the question of compensation to former comfort women, in accordance with the San Francisco Peace Treaty, bilateral peace treaties, and other relevant treaties and so forth.

305. On the other hand, apart from such legal aspect, taking into consideration its special nature of the question, the Government of Japan is now considering seriously how best we can express our sentiment of apologies and remorse.

(44) Equal opportunities for women in employment

306. There was the question in connection with my explanation to the question. Namely, I explained that, for women who are working in private enterprises, a law was formulated in order to protect those women's right to work, and so on. The law which I referred to in my explanation is the so called the 'Law For the Equal Treatment Between Men and Women in Employment'. And, according to the Law, if a complaint is submitted by the women workers to the employees, the employee is obliged to convey the complaint to the body which is in charge of settling down the complaint. And so on and so (forth).

307. With those kinds of provisions, this Law aims (at) the promotion of the equal treatment between men and women, as well as the enhancement of the status of working women.

(45) Ratification of the optional protocol

308. There was also a question on the expectations concerning the ratification by the Government of Japan of the original Protocol to the Covenant, or the Convention on the Prohibition of Torture, as well as the Convention on the Prohibition of Bad Hate, and so on. As I explained this morning, we are now very seriously and closely scrutinizing those Conventions, but we will take note the opinions of the distinguished members of this Committee that, as a great power, Japan is expected to ratify those universal Conventions or Optional Protocols as soon as possible. And we will take note of the opinion, your opinions, as well as the feeling of this Committee. And we will so continue our efforts by fully taking into account of those factors and aspects.

(46) Comments by Mr. Watanabe

309. Mr. Kunikata. Now, Mr. Watanabe, Director of the International Affairs Division, Criminal Affairs Bureau, Ministry of Justice, is ready to reply to your questions, concerning especially the treatment of children born out of wedlock, and other relevant matters. Now, with your permission, Mr. Chairman, I would like to give the floor to Mr. Watanabe.

310. The Chairman. Mr. Watanabe, you have the floor.

(47) Children born out of wedlock

311. Mr. Watanabe. I will speak in Japanese. Thank you, Mr. Chairman. First, let me touch on the issue of children born out of wedlock. If you look at the Civil Code, Article 900, paragraph 4, it says that there are children born out and in of wedlock, and if there are no specific provisions in the will regarding to the inheritance, it said that the inheritance of illegitimate children is limited to one-half of a legitimate child. In other words, the Civil Code differentiates two cases, where the successors are only children (who) are born in wedlock, and where there is co-existence of successors, both legitimate and illegitimate children.

312. And if in the will, it is clearly mentioned that the same amount of inheritance, or even bigger inheritance, should be given to the illegitimate children, I think such a provision is not included in the Civil Code. However, although it is not required by law, if there is not such a clear provision in the will, then the Civil Code will apply. That means that there is a different inheritance specified for legitimate and illegitimate children.

313. The purpose of this provision is to protect the lawful matrimonial relationships and the descendants of such marriage. Our legal system is based on monogamy and children who are minors. This is the unit that our legal system is based on. Therefore, protecting lawful matrimonial relationships or family is also required by our Constitution in other words. From this viewpoint, if there is any conflict of interest between children born out and in of wedlock, it is reasonable for us to protect the interests of children born in wedlock, and by doing that we are trying to protect the lawful matrimonial family, and this is the intention of (the proviso of the) paragraph 4, Article 900 of the Civil Code.

314. And we believe that this intention and the purpose of this Code is reasonable. As for inheritance, from the viewpoint of preserving the private property system, we would like to clarify that we would like to provide for the situation when there is no clear co-successors who should inherit the property in such a case. Seen from the successor's point of view, this is rather windfall profits brought about by the death of the property owner. Therefore, the difference in the amount of inheritance is not quite as large as taking away the inherent rights of a person. Therefore if you think of the reasonableness or rationality of the intention and purpose of this Code, we do not think that this difference is inadequate or unjustifiable.

315. And if you look at the Covenant in Article 23, it accepts the family as a natural unit, which the society is based on. And if you look at the footnote of the Draft Covenant which was submitted by the Director General of the United Nations, and if you take into consideration the elaboration process concerning this Covenant concerning the inheritance provisions, we do not think these provisions require the abolishment of the differentiation or differential treatment between illegitimate and legitimate children. Therefore, (the proviso of the) paragraph 4 of Article 900 of the Civil Code does not violate this Covenant.

316. Concerning this point, there are some opinions in Japan who say that this violates the Constitution. And there are judicial precedents by the High Court that agree to this point of view. This judgment was referred to earlier in one of the interventions by a member of this Committee.

317. On the other hand, there are judgments by the High Court which said that this does not violate the spirit of the Constitution. There is no judgment rendered by the Supreme Court on this point.

318. Now let me touch upon the awareness or consciousness of the people, or the feelings of the people, on this point. In 1979, we conducted an opinion poll. As for the differential treatment in inheritance as between illegitimate and legitimate children, only 16 (per cent) of people answered that they should receive the same amount of inheritance. And 48 per cent of the people surveyed said there should be a difference. In 1979, July, the Ministry of Justice asked for opinions to related circles such as juridical circles, universities, and layman organizations, and at this point, as I mentioned earlier, the majority of the people were opposed to the same amount of inheritance given to these two categories of children. And they also pointed out that it is quite still early to actually implement such treatment, and it goes against the national feeling, the feeling of the majority of the people in Japan. Therefore, as a result, we did not revise the law to make the inheritance amount equal as between legitimate and illegitimate children. In 1980, there was deliberation at the Diet concerning the revision of the inheritance law. And there were opinions opposed to such revision were expressed. Therefore we believe that there is not national consensus as to the same amount of inheritance given to illegitimate and legitimate children. There is no national consensus on this point.

319. Of course, we have to take balance between the protection of the legal matrimonial marriage and family, and protection that should be given to the children born out of wedlock. And we should listen to the opinions, because they are strong opinions, that we should seek legitimate measures to solve these problems, taking that balance into consideration. As for the future treatment of this issue, we believe that careful consideration is necessary, taking into consideration the change in the value of the people, and the tendency of the opinion polls.

320. Next, let me touch upon the family register. When a child born out of wedlock is acknowledged by the father, according to the Civil Code, Article 791 paragraph 1, with the approval by the Family Court, the child can have the father's family name.

321. As for the number of children born out of wedlock, I believe we have received that question on this point, in 1990 we conducted a survey, and according to this survey, one per cent of all the children born were born out of wedlock. One per cent.

(48) Acquirement of nationality

322. Next, there was a question concerning the acquirement of nationality, and if there is any differential treatment based on sex. I would like to mention here that there is no differential treatment based on sex in acquiring nationality.

323. And there was a question concerning the case when you cannot specify parents, and maybe the children would not (be) able to have any nationality. Stateless children. According to the Nationality Law of Japan, if a child is born in Japan, and if we cannot specify the parents, or if the child has no nationality, the child can be given Japanese nationality. Thus we have a measure to prevent stateless children. If I may add further comments on this point, when the parents are not known, the child can have Japanese nationality. It does not mean just that the location or address of the parents are not known. It means that you cannot specify clearly who the parents are.

(49) Korean residents in Japan

324. Next, let me touch upon the issue of Korean residents in Japan. As for the requirement of carrying the foreign(er) registration (card), and some restriction placed upon re-entry permit, and the question was asked on these two points.

325. Let me first touch upon the requirement of carrying the foreign registration card. The CCPR does not prohibit reasonable differential treatment between nationals and non-nationals. The requirement to carry the foreign registration card at any time stems from the fact that foreigners are different from the nationals. And they do not have the inherent right to stay in the country. They can stay as long as they are permitted to stay by the Japanese Government. In that sense, there is a basic difference between nationals and non-nationals. From that viewpoint, and for the purpose of managing the non-nationals, sometimes it is necessary to identify the foreigners or their families at the spot, immediately. And I believe that this is reasonable enough reason for such a requirement. This is not to discriminate the foreigners, or not to limit the movement of non-nationals in Japan. Korean residents in Japan who are not Japanese nationals are required to carry the foreign registration card at any time. But I do not think that such requirement is degrading. We cannot say that such requirement is degrading.

326. Now let me touch upon the issue of re-entry. As I mentioned earlier, Korean residents in Japan have historical background, and they have settled in Japan. Because of these two reasons, we have enacted a special law to the immigration law in order to stabilize their legal status in Japan. As for the special permanent residents, they are given re-entry permit which are valid for four years, and one year extension abroad is granted. Together, therefore, the valid period is five years at the time of re-entry, as long as they have a valid passport. They are permitted to re-enter the country, even if they have some problem concerning the landing permit criteria. This is because we are treating these residents, or Korean residents, taking into consideration fully their historical background, and the fact that they have settled in Japan.

327. If I may go back to the requirement to carry the foreign registration card at all times, then I believe there was a question concerning the number of violation of this requirement. And we are determined to enforce this system or requirement flexibly. In 1992, the Foreign Registration Law was revised. We have made the foreign registration cards smaller, so that it is easier to carry. One member has pointed out that there are about 20,000 people arrested annually for the violation of this requirement. If we look at the statistics by the National Police Agency, the arrest figure in the recent period is only 2 digits instead of five digit figures. The figure is only 2 digits.

(50) Protection of families at the time of deportation

328. Let me touch upon the protection of families at the time of deportation. As for the judgment whether they should be deported or not, we pay enough humanitarian attention and care so that there will be no separation of families. The background of the person in question and his family relationship are fully taken into consideration. However, even with the maximum humanitarian consideration, from the viewpoint of providing proper management and control of the re-entry and residence of non nationals in Japan, sometimes we have to come to the decision that a certain foreigner in question is not properly staying in Japan, therefore we cannot help but deport the person. In such a case, deportation will be carried out. Of course it is possible to appeal or place a complaint in a court against such deportation order.

(51) Name changes and naturalization

329. Now, let me touch upon the question concerning the name change at the time of naturalization. When a person is naturalized, the rules concerning the name on the family registrar are as follows: Chinese characters for every day use, and Chinese characters for a person's names, and Hiragana and Katakana, two alphabets, Japanese alphabets are allowed to be used in registering names in the family register. As long as they use these specified characters and alphabets, they do not have to change their names to Japanese names. There is no such legal requirement. And the Ministry of Justice has never done administrative guidance or any guidance for these people to change their names to Japanese names.

(52) Activities of human rights protection agencies

330. Lastly, there was a question concerning the Civil Liberty Commissioner. Let me now touch upon the activities, first. The number of human rights consultations which is conducted by this organization was 480,000 in 1992, and in the same year there were 16,000 violation of human rights cases. Of course, this number of the cases was the number of cases which were accepted by the Civil Liberties Commission.

331. Now, let me touch upon the functions of this Commission. Investigations conducted by this Commission are conducted by Civil Liberty Commissioners. This investigation is done strictly on a voluntary basis. They do not have any authority to conduct forceful or compulsory investigation. The reasons for this are as follows: The main task of this Commission is to raise the awareness of human rights and respect for human rights. By doing that they are to eliminate the cases of human rights violations, or improve the situation concerning human rights. Therefore, if a person who claims that his or her human rights are violated, then he or she can consult the Civil Liberties Commissioner, or she or he can take a legal action at a court. So there are two options. It is up to the person in question to which remedy or measures he or she would like to take. That's all. Thank you very much.

332. The Chairman. Thank you, Mr. Watanabe. I suppose that you, Mr. Kunikata, that you will continue now, answering the remaining questions. You have the floor again.

333. Mr. Kunikata. Thank you, Mr. Chairman. Concerning the remaining list of questions. So, part of them relat(ing) to the police authority, so, I would now also give the floor to Mr. Ono, Special Assistant for Detention Administration, General Affairs Division, Commissioner General, Secretariat, National Police Agency, Relating to Punishments.

334. The Chairman. Yes, thank you, Mr. Kunikata. Mr. Ono, you are welcome.

(53) Treatment of female detainees in custodial facilities

335. Mr. Ono. I will speak in Japanese. We have received several questions concerning the police and the police authority, and I would like to respond to these questions. The first question concerns police custodial facilities. And the question was (that) the treatment of female detainees in these custodial facilities are severer than the treatment given to male detainees. Now, let me try to answer this question. In the police custodial facilities there are separate facilities for men and women, and this is implemented thoroughly, so that there is no contact whatsoever between men detainees and women detainees. When we had to conduct certain physical checkup of women detainees, it is done by female police officers, so that we do not have to embarrass the female detainees. We pay full attention to this psychology of female detainees. So, compared to the male detainees, we have to say that there is no severer treatment given on the female detainees.

(54) Designation of harmful publications and censorship

336. The second question concerned the publication which is deemed to be harmful to juveniles. And the police agencies are now designating certain publications (as) harmful for juveniles, and then it was pointed out that isn't equivalent to censorship. The case pointed out, it is not quite true. The police agency does not conduct such designation of such publications. Therefore I believe I do not think that I am in a position to answer this question. However, there is a time restraint, so I would only briefly touch upon the facts, only factual information. In each prefecture in Japan, not all the prefectures, however, each prefecture has its local ordinance to protect juveniles. In such an ordinance, publications such as books, photographs, and magazines, which are deemed harmful for juveniles, can be designated as a 'harmful publication' by the governor of the prefecture. Such regulation, or restriction, excludes restriction on the publication activity itself, or sales to adult persons. So we are quite careful in placing such restriction. And there is a judgment given by the Supreme Court that such designation of harmful publication does not constitute censorship.

(55) Obscene publications and censorship

337. The third question concerns the police regulations on the obscene publications. And the question was..., or it was pointed out in the question that sometimes "isn't it equivalent to censorship?" In Article 21 paragraph 2 of the Japanese Constitution, it is clearly stated that there should be no censorship, and, of course, the police agency pays full respect to this Article. In Article 175 of the Penal Code of Japan, distribution or sales of obscene publications can be punished. It (is said so) in Article 175. Based on this provision we sometimes, of course, control the activities after the publication of such documents. However, we do not exercise censorship before publication.

(56) Control of welfare crime

338. Now the fourth question that concerns the welfare crime. At police agencies, to promote healthful development by young people, we of course control and investigate crimes which abuse and exploit young people, such as forceful prostitution of young girls. These crimes are called 'welfare crimes'. And we place quite an importance and focus on controlling these types of crimes. In 1989, we have detected or arrested 10,650 people for committing welfare crimes. Although the next point may not be directly related to this point, delinquency of young people, runaways, and suicide by young people are quite serious problems, and to prevent these, experts with enough knowledge of psychology and police officers with experience are giving consultations and counseling. We receive these consultations by phone. Consultations can be given to young people themselves, or parents who are suffering from their children's delinquency. And we provide advisory services to these people. That concludes my answers. Thank you very much.

339. The Chairman. Thank you very much, Mr. Ono. And Mr. Kunikata, you have something to add now, or have you finished? No, not yet?

340. Mr. Kunikata. Excuse me, Mr. Chairman, to have such a long time, of course, because a large number of questions were raised by the distinguished members of the Committee. And so, before giving the floor to Mr. Gotoh, (who) is from the Human Rights and Refugees Section, International Social Liaison Division of the Foreign Ministry, excuse me, I have forgotten to touch on two issues.

(57) Ratification of the Convention on the rights of the child

341. Namely, one is the Convention on the Rights of the Child. The situation of this Convention in Japan is as follows: We asked for the ratification of this Convention at the last session of the Diet, but due to the very sudden dissolution of the Diet we have not yet ratified this Convention. And well extensive discussion was conducted in the Lower as well as the Upper Houses, but at the last moment the Diet was very suddenly dissolved and we did not succeed to get ratification and approval for the ratification of this Convention. And we are now trying to get this Convention ratified as soon as possible.

(58) Defining Koreans residing in Japan and minorities

342. The second one. There was a question whether the Korean residents in Japan are the so-called minorities or not. The answer to this question is as follows. There is no established definition of minority or minorities; I mean (that) the internationally well established definition of minorities is not existing. But anyway, Korean residents in Japan are not denied their own rights to enjoy their own culture, religion and languages.

343. And, having said that, I would like to now give the floor, with your permission, to Mr. Gotoh, who will answer the questions concerning the status of the Covenant in Japan, as well as the concept of public welfare.

344. The Chairman. Thank you, Mr. Kunikata. Mr. Gotoh, you are welcome to the floor.

(59) The concept of public welfare

345. Mr. Gotoh. Thank you, Mr. Chairman. I will speak in Japanese. Now, first let me touch upon the question concerning the notion of public welfare. As was pointed out by the members of this Committee, in Articles 12 and 13 of the Constitution, it does not clearly say that public welfare, welfare of the public, cannot be the basis for refusing the rights. It does not clearly stipulate that. Whether this notion of public welfare can be used as a reason for restraining in some way human rights, there are difference of opinions in the academic circles. However, if you look at the judicial precedents, generally it can be interpreted that public welfare can be the reason to restrain, in some cases, to restrain human rights. However, there are some scholars who do not accept this, but still, some of this type of scholars do not insist that human rights should be the absolute rights. For example, when there is a conflict of the right of honor and the right of freedom of expression, if an act that defames somebody's honor constitutes a crime, scholars, who do not accept the notion of public welfare as the basis for restraining human rights, agree (that) this act constitutes a crime, (i.e.) the crime of defaming other people's honor.

346. Therefore, the issue here is not whether the notion of public welfare restrains human rights or not, but the issue here is how or what sort of criteria we should use when we specifically judge the compatibility of each specific case, and the spirit of the Constitution. As we mentioned in the answer to the question 1(b), there is a certain enough accumulation of judicial preceden(t), which was accumulated on a case by case basis.

347. Particularly it has been 46 years since the Constitution was announced and enacted. We have come to have enough principle to judge the constitutionality of each specific case in terms of the law, and justification of the purpose or intention are scrutinized at the courts, and by doing that the court gives very careful judgment on the compatibility of certain laws, that may restrict human rights, and the Constitution. As we mentioned in our answer to the question 1(b), there is absolute guarantee to 'one's beliefs'. There should be no violation of this. As for the freedom of the physical body and rules and regulations concerning criminal procedures, there can never be restraints placed on these by the notion of public welfare. As to the judgment whether the notion of public welfare justifies a certain law which may restrict human rights, if we look at the judicial precedents, then there is a larger (legislative) discretion given when it comes to the freedom of business or economical rights. When it comes to the interpretation of laws which may restrict psychological or spiritual freedom, then the interpretation is a lot more strict.

(60) Validity of the Covenant

348. Now let me touch upon the validity of CCPR. As we have repeatedly mentioned, we think it is possible that the provision of the Covenant could be duly applied in Japanese courts of law. Our interpretation is that, while individuals have rights within the terms of the Covenant, each of the nations that have ratified the Covenant has also taken steps to enact the legislation in line with the requirements of Article 2 of the Covenant, and until such time as obligations imposed by such domestic legislation becomes clear, it will not be possible purely on the basis of the Covenant for an individual to bring a case against the State on the grounds that it has not provided the protection (that) it is required to provide. Taking account of the fact that, as I explained earlier, an individual cannot bring a case against the state for malfeasance (i.e. inaction on the part of the state) purely on the basis of the Covenant. The Japanese Government has argued in court that the provisions of the Covenant are not self executi(ng). The Japanese Government considers this to be an entirely separate question from that of whether individuals can claim that legislation or administrative agencies, the disposition of administrative agencies, is an infringement of the Covenant.

(61) Legal binding force of the "general comments'

349. In judgments at the court whether certain domestic law violates the Covenant or not, and in such judgment the question was asked whether we take into consideration the interpretation given by this Committee, or the 'general comments' of this Committee are taken into account or not. It is rather difficult to say generally that in all cases such general comments are taken into consideration or not, because we have to look at each and every case separately in order to say that. However, generally speaking, it is possible for the complainant to quote the general comment given by this Committee at the court. It is understood in such a case that these comments do not have any legally binding effects, although it is very possible that such comments are actually taken into consideration at the judgments of the courts.

350. The Chairman. Mr. Kunikata, do you want to have the floor, for some finishing comments?

351. Mr. Kunikata. Thank you very much, Mr. Chairman. We did have some efforts to reply to answer the raised questions by the distinguished members of the Committee. But we are aware that we have not yet responded to some remaining questions, because we are now preparing our reply to those questions, including the asking for further information or checking the facts to the headquarters. And due to the eight hours or so time difference, it is almost impossible for us to get the answer within today. Therefore, as for the remaining questions, please allow us to come back to those questions at tomorrow morning's session. Thank you.

352. The Chairman. Thank you very much, Mr. Kunikata, for all the replies given. It has been very informative and very useful for us, and it has really enhanced the dialogue that we now have started with you. Now I have five members wanting to ask some additional questions. Perhaps we should try to get through these additional questions before we finish today, so the delegation can prepare answers to them for tomorrow morning. Then I hope that members will take account of the very short time that is available and make their questions as brief as possible. I, then, first give the floor to Mr. Prado Vallejo.

(62) Supplementary questions by Mr. Prado Vallejo (Ecuador)

353. Mr. Prado Vallejo. Thank you very much, Mr. Chairman. Mr. Chairman, I would like to ask for two clarifications, two points of clarification, that's all. I would like to thank the distinguished delegation for replying to some of my concerns, but I would like to make two comments. First, with regard to refugees. The distinguished delegation has told us that in the case of refugees there are quotas for their entry into Japan, those who are seeking asylum. I would say that it is not a question of quotas for refugees. The problem is in the policy and the machinery used in the case of refugees and asylum seekers. The policy of Japan seems not to be in accordance with the international principles concerning refugees and asylum seekers. The process of investigation before giving them refuge and asylum is very long. These procedures take place in secret, and the requirements for asylum are very restrictive.

354. There is a letter addressed to the Government of Japan by the Secretary General on the 18 August 1993 on these points. I would like to know if there has been any answer to this concern, any response. Amnesty International has brought this up directly with the Government, and I think it is a very important point.

355. My second point concerns discrimination against children born out of wedlock. The distinguished delegation says that it has sought a domestic consensus, and there is not agreement, most people do not want the current the legislation to be changed. I think that Japan has committed itself to bringing its domestic legislation into line with the Covenant. That is one of the first obligations under Article 2 of the Covenant. That is they have to take into account non-discrimination and establish measures to put an end to any form of discrimination, what ever it may be based on. You cannot say that the law cannot be changed. I think that the government should try to change public opinion, and bring the domestic legislation into line with the international legislation to discrimination this hateful discrimination which still exists against children born out of wedlock. Thank you very much, sir.

356. The Chairman. Thank you, Mr. Prado Vallejo. I now give the floor to Mr. Dimitrijevic.

(63) Supplementary questions by Mr. Dimitrijevic (Yugoslavia)

357. Mr. Dimitrijevic. Thank you, Mr. Chairman. I don't want to prolong the proceedings, and I shall reserve my comments on the ways of reasoning and the ways of interpreting the Covenant that are sometimes worrisome when they come from the delegation. I will reserve these comments to the end for my final statement, and I don't want to put any additional questions, because there are already too many.

358. But I must register now, in order to prevent any further misunderstandings that there is something curious about the interpretation given by the delegation on what is reasonable and not reasonable. This is a distinction to be made on the basis of law, and not on the basis of the vicissitudes of the public opinion. I was surprised to hear the absolutely wrongful differentiation made between legitimate and illegitimate children. Because if there is something, there is the paradigm of innocence. A child cannot be responsible for acts that have taken place before its birth, although it caused its birth. And in addition to the general provisions on non-discrimination, there is a specific provision of non-discriminatory provision regarding children in Article 24, which says they should be afforded protection irrespective of their birth. And protection does not only cover their property as to the Civil Code, but there are many other things that seem to be involved with illegitimate children; that they have problems in being registered (im)properly and (in) getting passports and so on.

359. And, then, to refer to the public opinion surveys conducted by the Ministry or by something else seems to me basically wrong. First of all, public opinion surveys are not referenda. And a referendum could be probably held in Japan, but only on the question of whether the Covenant should be ratified or not, but not on the validity of a provision of the Covenant on its interpretation, because it would be quite easy to find at certain times huge minorities for very unlawful interpretations of the Covenant or attitudes that are contrary to the Covenant in all countries in the world. Take for instance the death sentence, or flogging, the position of women and so on. I don't think the government could refer to that as an explanation for not trying to implement the Covenant.

360. And if I understood properly Mr. Prado Vallejo, it is exactly the failure of the government not to publicize the Covenant properly; that results in attitudes such as those favoring children born in wedlock against children born outside wedlock. Thank you, Mr. Chairman.

361. The Chairman. Thank you, Mr. Dimitrijevic. We can continue until five past six, but not any longer. I have three speakers on my list here. Please take account of that we have just seven minutes left now. I give the floor to Mr. Aguilar.

(64) Supplementary questions by Mr. Aguilar (Costa Rica)

362. Mr. Aguilar. Thank you, Mr. Wennergren. I also want to begin where Mr. Dimitrijevic left off. I am bothered to see that on the basis of acquiring an opinion a serious decision is taken on two important Articles of the Covenant. Article 2 says that the rights in the Covenant are guaranteed to all individuals. And the same is true of Article 26; they all have the right to non-discrimination. No differences (should be) made in or out of wedlock to justify some discrimination.

363. In this regard, we are told that Article 23 says that the family is something that has to be protected. That is true. The family must be protected. But it is very different. What the Covenant says, protecting the family, that is protecting a man, a woman and their children in the specific case, and protecting the institution of wedlock. We are here protecting the family. And I want that to be quite clear.

364. In addition, I also want to refer to what was said with regard to the position of the status of the Covenant. We have been told that in accordance with Article 2, the Covenant should be incorporated into the law so that people can enjoy it, and if the Covenant is not incorporated then it is not to be enjoyed by the people. I think the norm is Article 2 paragraph 1 which is the immediate guarantee of all the rights within the Covenant. Thank you.

365. The Chairman. Thank you, Mr. Aguilar. Now there are just three minutes left. Mr. Pocar, you have the floor.

(65) Supplementary questions by Mr. Pocar (Italy)

366. Mr. Pocar. Thank you, Mr. Chairman. I shall be very brief, because I could not find better words than those used especially by Mr. Dimitrijevic, but also other speakers to say what I was going to say myself. I do think that the... It is the duty under the Covenant of the government to enlighten the public opinion of the obligations under the Covenant, and explain that this legislation amounts to a punishment for a category of persons that is not for a situation for which they are not responsible.

367. And moreover, if I may add a word. I listened carefully to the answers to this point, referring especially to the tendency of opinion polls. But I could not hear any exact precise answer as to the arguments made by some of us as to this issue, that the protection of the family cannot be made at the detriment of children's rights, and that it is the parents themselves that do not protect the family when they behave against the family. So this argument, this is a good argument for not protecting the family before the children's rights. This right should be in any case be protected. I will stop here because we have no time. I thank you, Mr. Chairman.

368. The Chairman. Thank you, Mr. Pocar. Mrs. Higgins, you have about one minute at your disposal.

(66) Supplementary questions by Ms Higgins (U.K.)

369. Ms Higgins. Mr. Chairman, I want to say this, and it is not just empty introductory words; you will see the relevance of it. I have been extremely impressed with the careful preparation; there has obviously been to anticipate all questions the Committee might ask. Detailed preparatory work has clearly been done to provide us with the fullest information. But, at the same time, we do seek a dialogue and that requires beyond telling us the law, especially if we have understood it correctly, or telling us again the publicly stated reason for the law. So what would really help us would be: if the delegation could respond to criticisms made by Committee members of the stated reasons known to underlie a law or practice, that I think has a certain pertinence for the illegitimacy question.

370. Now on the question that I asked relating to the aliens registration cards, I find the answer given there as to reasonableness quite baffling. It is a reasonable distinction because foreigners can only stay in the country as long as Japan allows. But there are those with settled residence, sometimes third generation, who clearly don't fall in that category.

371. And so, what we are being told is that a person with a full residence requirement should be required to carry documents because other foreigners may not have that status. And I think that upon reflection the delegation might consider that that is not reasonable.

372. And finally in the last seconds, regarding the question of Korean names, I did not say that the law required them to be changed, although that's how the answer was formulated. I spoke rather of de facto pressures because of policies of assimilation, and of the manner in which the registered names appear on the passports. And I haven't had, in spite of their great helpfulness, answers to that. Thank you.

373. The Chairman. Thank you, Mrs. Higgins. That has finished the meeting for today, and the meeting is adjourned until tomorrow. We meet again at 10 o'clock sharp, and the Japanese delegation will continue and finish their answers under chapter 1, and then we will continue with chapter 2.

RECORD OF THE 1279TH MEETING

Held at the Palais des Nations, Geneva, on Thursday, 28 October 1993, at 10:00a.m.
Chairman: Mr. Wennergren
The meeting was called to order at 10:00a.m

(67) OPENING OF THE SECOND DAY MEETING

374. The Chairman. The meeting is called to order. We have today to resume our considerations of the Third Periodic Report of Japan. Before we do so, I have some announcements to make with regards to the schedule for the remaining two days of this week. This morning, we will continue with the considerations regarding the remaining questions under chapter one, and then, we will start with chapter two, and my suggestion is that we join chapter two and chapter three, and ask the delegation to answer to all the questions on the list of issues that remain under chapter two and chapter three. And then, we'll probably need part of the afternoon to finish with our considerations of the Japanese Report. In order to make effective use of the time available, I would like to ask both members and the delegation to be very precise and not to repeat things that have already been said. If there are any observations for the members to make, please present them when concluding remarks are being made.

375. If there will be any time left in the afternoon for other matters than the consideration other than the third periodic report of Japan, we could use it for discussions on General Comments (on) Article 27.

376. Then, tomorrow morning, we will have no translation, and it's suggested that we shall consider submissions of reports, and then, in closed session, the Committee's comments on the reports from Iceland and Norway. Tomorrow afternoon, we will have translation, and then we should deal with communications. That's the suggestion of the bureau. Are there any comments to the schedule for the remaining two days? If not, I would like to invite the delegation to the floor to make remaining comments and answers on questions under chapter one. You have the floor, Mr. Kunikata.

(68) CONTINUATION OF THE ANSWERS OF THE JAPANESE DELEGATION TO

THE REMAINING QUESTIONS UNDER CHAPTER ONE OF THE LIST OF ISSUES

377. Mr. Kunikata. Thank you, Mr. Chairman, and good morning distinguished members of the Committee. Before going on with chapter two, I would now like to reply to the remaining questions raised by the distinguished members of the Committee in chapter one.

(69) THE SCREENING PROCESS OF REFUGEES

378 There was a question concerning the refugee screening process in Japan, and our reply is as follows: In the screening process for every case, we are conducting a very careful examination in order to protect the human rights as fully as possible of the asylum seekers. We are facing with difficulties (of) the enough supply of qualified interpreters, because the Japanese language is totally different from those of the asylum seekers. Therefore, it takes rather a long time to come to the conclusion whether the asylum seeker is screened in or screened out. In the screening process of refugees, the Ministry of Justice is conducting the process in close cooperation and with the representatives of the United Nations High Commissioner for Refugees in order to ensure the objectivity of the screening process. Therefore, in conclusion, we are of the view that the Japanese refugee screening system is in compliance with the obligations of the Convention on Refugees, 1951.

(70) SUBMISSION OF A REPORT ON CHILDREN BORN OUT OF WEDLOCK

379. During the discussion yesterday afternoon concerning the treatment of children born out of wedlock, opinions were expressed by the distinguished members of (the) Committee which are different from that of the Japanese Government, and in order to save precious time, we would like to convey our opinions in detail in writing as soon as possible after this meeting is over, so that the distinguished members of the Committee's understanding of the Japanese situation will be deepened.

(71) PUBLIC RELATIONS CONCERNING THE COVENANT

380. There was also reference concerning the public relations of the Covenant, and we will continue our efforts on public occasions to make effective public relations on this Covenant to the public.

(72) PROHIBITION OF VISITING HOUSES DURING THE ELECTION CAMPAIGN

381. There was also the question of the prohibition of visiting houses in the election campaign in Japan, and we think that if the visiting houses is permitted in the election campaign in Japan, it might be the occasion of receiving bribes and so on, and the freedom and fairness of the election will not be fully secured. This is a concern, and we are of the view that this restraint is on reasonable grounds.

(73) RELIEF OF EMPLOYEES FOLLOWING DISMISSAL

382, There was also the question concerning the remedy of the employee who is fired or dismissed without any obvious reasons. The labor standards law of Japan very clearly stipulates that any discrimination based on nationality or creed or social status is strictly prohibited. If such a discrimination would occur, then, the labor standards inspection bodies will examine the case, and if the case is proved to be unlawful, then this body will demand the employers to rectify the situation.

(74) THE RELATIONSHIP BETWEEN THE COVENANT AND THE JAPANESE

CONSTITUTION

384. There was also the question of the status of the Covenant in Japan, especially the relationship between the Japanese Constitution and Covenant. We don't have much to add to what we explained yesterday, but at this stage I would like to explain the following: Though there is no express reference to the relation between treaties and the Japanese Constitution, but we are of the view that the Japanese Constitution would prevail, and therefore, if there would be any conflicts between the Covenant and the Japanese Constitution, the Constitution would prevail. However, as described in paragraph 12 of our report, there is fundamentally no difference between human rights guaranteed by the Constitution and those guaranteed by the Covenant, even if they are different in terms of expression. Therefore, we don't think that there is contradiction or conflicts between the Covenant and the Japanese Constitution.

385. Thank you, Mr. Chairman. We hope that we have replied to the questions at least as much as possible. Thank you.

386. The Chairman. Thank you, Mr. Kunikata, for your answers. Is there anything to be added from the members? If not so, then we could... Mr. Francis, you asked for the floor? You have the floor.

(75) QUESTIONS BY MR. FRANCIS (JAMAICA)

387. Mr. Francis. Thank you, Mr. Chairman. I suppose you are referring to the statement just made by the speaker. Are you referring to the statement just made by the speaker, Mr. Chairman? I would like to ask a question if you may...

388. The Chairman. Well, we should try to finish on chapter one, and if you have any comments, you might make them when you make you concluding remarks. If there is now particular point that you wanted to have clarified...Yes...You have the floor to ask for that clarification.

389. Mr. Francis. Thank you, sir. I was rather distressed to hear from the speaker that if there is a conflict between the Constitution and the Covenant, then the Constitution would prevail, because I'm quite sure the delegation is aware of the fact that in the Law of Treaties, I think it is Article 27, I can't recall, but surely in the text of that document, it is provided that a state shall not use a reference to its constitution or other law to prevent it from clearing its obligation under the treaty. This is something which I am sure the delegation is aware of, and in the light of this provision, in the light of this statement, I should like to ask how is it reconciled with the obligation under the Law of Treaties with reference to the Covenant.

390. The Chairman. Thank you, Mr. Francis. Mr. Kunikata, are you ready to give an answer to this reconciliation issue, or reconciliation, between Article 27 of the Law of Treaties and your position in Japan? If your are not ready, because I suppose you don't have the Law of Treaties in front of you, you could come back to that in the afternoon then.

390.1. Mr. Kunikata. Thank you very much.

(76) RESPONSES OF THE JAPANESE DELEGATION TO THE QUESTIONS UNDER

CHAPTERS TWO AND THREE OF THE LIST OF ISSUES

391. The Chairman. Then we could, then I think, continue with the considerations under chapter two and chapter three, and I would like to invite Mr. Kunikata to present your answers to the written questions under chapters two and three. There are together twelve issues on the list with regard to those two chapters. Mr. Kunikata, you have the floor.

(77) CURTAILING THE NUMBER OF OFFENSES PUNISHABLE BY THE DEATH

PENALTY

392. Mr. Kunikata. Thank you very much, Mr. Chairman. The list of issues in chapter two. I would like to reply in order of the list of issues: 2(a): The question is as follows: Are there any plans to revise the relevant law with the view to curtailing the number of offenses punishable by the death penalty?

393. Our reply is as follows: In 1974, the Legislative Council, it's the standing committee for the Ministry of Justice, recommended in its report of the draft of the Revised Penal Code that the number of crimes to which the death penalty may be sentenced should be reduced to eight from the present number of seventeen. The Japanese Government, giving regard for its recommendation, is making efforts to find the ways and means to introduce a bill (for) the full revision of the Penal Code to the Diet. The Government, however, has not yet been successful because of the opposition of the Japanese Federation of Bar Association(s) and others. It concludes our reply to 2(a).

(78) TORTURE OR INHUMANE TREATMENT BY PUBLIC OFFICIALS

394. The question 2(b) is as follows: "Have their been any complaints during the period under review of torture or inhumane treatment by public officials? If so, what measures have been taken to punish those who have been found guilty; to provide compensation to the victims; and to prevent the recurrence of such acts?"

395. Our reply to this question is as follows: In case that a complaint is submitted by the victim or his family seeking for a penal punishment up on a public officer on the grounds that torture or inhumane treatment was inflicted by the said public officer, the following explanatory statement (is necessary) in addition to the report: In case that a person is tortured or ill treated by a public officer, he or his family is able to file a complaint or accusation to the public prosecutor. In case that the public prosecutor has made disposition not to prosecute the case of complaint or accusation, he must promptly inform the complainant or accuser of such fact. When the complainant or accuser has received the notice of non-institution of prosecution from the public prosecutor, and when he is dissatisfied with such disposition, he may request to the 'committee for the inquest of prosecution' for examination of whether the said disposition of the public prosecutor not to institute a public action is proper or not. The committee is established for the purpose of examination of whether the disposition of non-institution of prosecution made by a public prosecutor is proper or not from the view point of the general public. The committee comprises eleven members of the inquest, and there are about two-hundred committees throughout the nation. Members of the inquest are selected by lot from the public registered on the election list of the House of Representatives.

396. Furthermore, the complainant or accuser of the said case may apply to a court for committing the case to a court for trial separately from the request to the inquest committee aforementioned. Special criminal proceedings, called "analogical institution of prosecution", are provided in the law that prosecution is deemed to have been instituted when the court has rendered the judgment to commit the case to a court for a trial, accepting the application of the complainant or accuser. When the case has been committed to a court for trial, the court is to designate, from among practicing attorneys, one who sustains the prosecution on such case. Procedural safeguards are thus provided to prevent an unreasonable investigation (i.e. institution) or non-institution of prosecution with respect to disgraceful affairs brought about by police, or correctional officers, or public prosecutors.

397. Incidentally, the number of persons to whom complaint or accusation was received by public prosecutors' offices has decreased remarkably; namely, the number of 1,652 for the year of 1986 shows a steady decrease, for example, 798 persons for 1990, and 364 for 1992. The number for 1992 shows a decrease of 78% in comparison with that for 1986. The number of 959 false cases were received by 'committee for the inquest of prosecution' for the year of 1985 has also decreased rapidly to the number of 82 for 1990, 87 for 1991, and 68 for 1992.

398. In addition, the number of persons whose cases the complainant or accusers applied to the district court to commit to a court for its trial shows a tendency of a decrease, too; for example, the number of 1,182 whose applications were received for the year of 1986 decreased to 260 for 1990, 167 for 1991, and 106 for 1992. The number for 1992 shows a decrease of about 91% against that of 1986. For the consecutive five years from '88 to '92, the number of persons who were prosecuted by public prosecutors on the basis of complaint or accusation of the victims is 4, and the number of persons who were ruled by the committee for the inquest of prosecution either disposition of institution of prosecution is proper, or that of non institution of prosecution is improper as a result of examination of this proposition of non-institution of prosecution made by public prosecutors, is only one; and further, the number of persons whose cases caused judges to commit to courts for trial is three.

398.2 The four persons who were prosecuted by public prosecutors were all police officers. Three of them were found guilty, namely, imprisonment with labor for three years, two years and six months, and one year respectively, and the remainder is now under trial for the first instance. The three whose cases caused judges to commit to court for trial were all police officers as well. Although two of the three were found not guilty, their designated practicing attorney who played the role of the public prosecutor has lodged 'koso' appeal and they are at present pending in court. One of the three was found guilty in the first instance,(with) eight months imprisonment with labor with suspension of execution of sentence, but both the defendant and the practicing attorney who exercised the function of the public prosecutor have appealed to a high court, and the case is also pending in court.

399. The number of cases prosecuted by public prosecutors in relation to complaint for accusation is rather small. However in the light of the extreme rareness of the cases in which disposition of non-institution of prosecution of public prosecutors is found to be improper as a result of examination by the committees for the inquest of prosecution, as well as hearing by court, it is deemed that disposition of public prosecutors has been made adequately.

400. Incidentally, all the complaints against inhumane conduct by public officers has decreased sharply as aforementioned. There are still some cases of complaint as a matter of fact. It is therefore deemed natural and necessary not just to impose a strict punishment up on the public officers who committed inhumane conduct, but to adopt proper measures to prevent recurrence and to redress the victims.

401. As regards the redress of the victims, in some cases the police officer himself who were prosecuted paid compensation to the victim; and in some other cases, the local public body paid it to the victim in accordance with the judgment of the court on the claim of the victim against the said body, which the said police officer belongs, for compensation for damages. In respect to the measures to prevent recurrence, we have been exerting ourselves to tighten discipline by reprimanding the superior officers who were in the position to supervise the police officer, as were the police officer himself, who was prosecuted and subject to disciplinary dismissal. We are also doing our best to prevent recurrence of the same kind of cases by making a practice of examining the cause and other related matters of the disgraceful affairs once they took place to make them known to all officers.

(79) IMPRISONMENT WITH LABOR AND THE CONDITIONS OF IMPRISONMENT

402. The next question is 2(c), is as follows: "Please clarify under what circumstances a person may be sentenced to forced labor under Article 12 of the Penal Code, or detained in a workhouse under Article 18 of the Penal Code, and provide further information on the conditions of such imprisonment".

403. Our reply is as follows: Before giving our explanation on this matter, we would first like to point out that in its third report on the subject, the term "choeki", which is one of the punishments of restricted freedom determined by the Japanese Penal Code, was translated into English as "penal servitude", or "imprisonment with forced labor". However, this may give a rather distorted view of the real meaning of the term, and we would like to request to correct the English translation as "imprisonment with labor".

404. The main sanctions provided in the Japanese Penal Code are the death penalty, punishments of restricted freedom, namely imprisonment with labor, imprisonment without labor and penal detention; and penalties, namely fines, minor fines, and confiscation. Of these, imprisonment with labor is the statutory penalty for a wide range of crimes, including murder, bodily injury, and theft. Of the 37,237 convicts in Japanese prisons at the end of 1992, 37,090 were serving sentences of imprisonment with labor, 147 were serving sentences of imprisonment without labor, and there were none under sentence of penal detention.

405. A prisoner who is sentenced to imprisonment with labor is confined to prison where he is obliged to carry out prescribed labor as part of the prison industry program. The imposition of prescribed labor is intended as a means of correcting and rehabilitating prisoners by ensuring that they remain in good health, while at the same time cultivating the will to work, and acquiring the knowledge and the skills necessary in the work place. There are more than twenty different programs of prescribed labor covering from woodcraft and printing, to dress making and metal work. The programs also have provisions for vocational training to enable prisoners to obtain licenses and qualifications for labor outside prison, and for the commutation of sentences to enable prisoners to work in work places in the private sector.

406. Prisoners sentenced to imprisonment without labor can also opt to do work of some sort, and in practice, almost all prisoners in this category choose to work. At the end of 1992, there were 35,439 prisoners, including prisoners serving sentences of imprisonment without labor involved in prison industry of one sort or another. The only exceptions being those who were either sick or serving periods of disciplinary punishment.

407. The prison industry involves a forty hour working (per) week

with suitable breaks for rest and relaxation. From the health and

safety point of view, the prison industry is managed in accordance

with the requirements of the Labor Safety and Hygiene Law as it

applies to work places in society at large. Workers in prison

industry also receive remuneration.

408. The punishment of confinement in a workhouse is normally imposed on those persons who are unable to pay a fine or minor fine in full. The term of confinement, which is specified by the judge at the same time as the fine, is two years or less. At the end of 1992, there were 96 persons serving this type of sentence. Those sentenced to confinement in the workhouse carry out their daily work in a workhouse on prison grounds. The work is much the same as that performed by prisoners sentenced to imprisonment with labor. It concludes our reply to 2(c).

(80) DETENTION BEFORE INDICTMENT IN "ORDINARY CASES"

409. 2(d). The question is as follows: "Please provide further information on the maximum duration of detention before indictment and comment on its conformity with the provisions of Article 9 Paragraph 3 of the Covenant. In this connection, please clarify that is meant by the term "ordinary cases" in Paragraph 136 of the Report".

410. Our reply is as follows: The "ordinary cases" mentioned in Paragraph 136 of the report refer to crimes other than those concerning insurrection, foreign aggression, foreign relations, and riots. It is expected that the number of suspects of these group crimes is large, or that international relations are involved. As they require certain amount of time for investigation, the extension of detention period of five days can be added to twenty days when a decision is made by a judge in an exceptional case. In fact, however, there were no cases of detention for nearly twenty years for these crimes. That is why they are not referred in the Report, and only "ordinary cases" were mentioned.

411. The maximum pre-sentence detention period in ordinary cases is as described in the Paragraphs from 133 to 135 of the Report: Two days after the arrest when judged by the police; one day when judged by a prosecutor; twenty days including ten days extension, namely twenty-three days in total. There are no exceptions to this rule, even though a case with a large number of people are involved.

412. Practically speaking, detention is not provided for twenty days in all cases, but in principle, the detention period is less than ten days. For example, 1992 statistics show that the percentages for which detention period was less than ten days were as follows: about 58% of ordinary cases except professional traffic negligence and road traffic violations; about 63% of violations of the Stimulant Drugs Control Law, which are the most frequent drug crimes in Japan; and about 78% of theft cases, which composed more than one quarter of the entire crimes.

(81) ARREST BASED ON OTHER INSUFFICIENT GROUNDS OF SUSPICION

413. Our criminal procedure does not prevent arrest or detention at other times resulting from other facts. For example, when a suspect commits theft and murder at different times and places, arrest and detention can be conducted for each case. In the past, it was permitted to conduct investigations for another charge during one detention period. This procedure is effective for shortening pre-sentence detention period as a whole, but it may infringe human rights by conducting arrest and detention based on the relatively insignificant crime which provides sufficient grounds for suspicion, and by investigating a more serious crime for which there are insufficient grounds for suspicion. Subsequently, the theory has been put to practice that necessity of arrest and detention is to be determined for each case to prevent infringements of human rights.

414. In addition, a suspect is to be arrested and detained for as many cases as possible, and investigated simultaneously while under physical restraint to eliminate any inconvenience imposed on a suspect by prolonged investigation. Furthermore, the necessity of arrest and detention is to be reviewed by a judge so that a suspect should not be arrested and detained for another crime to investigate a case which does not provide sufficient grounds for suspicion. A suspect can also make a complaint against detention through the "quasi-kokoku appeal".

415. As a matter of course, the appropriateness of these arrests and detentions will be reviewed at subsequent trials, and if they are proved to be illegal, admissibility of evidence obtained during detention will be denied, or a request for compensation by a state will be approved as redress measures.

(82) PERIOD OF DETENTION BEFORE FINALLY PROVED TO BE GUILTY

416. Although there are no statistics that directly show the number of days required until indictments are completed for all cases concerning a suspect who commits more than one crime, the statistics on the detention period of suspects in first instance cases are very useful. According to these statistics, the number of defendants detained who are sentenced or released on bail or for other reasons within two months is about 63%; within three months, about 83%; within six months, about 96%. This period refers to the detention period after the initial indictment, namely for the trial procedure, and include(s) periods of arrest and detention for other crimes after indictment. Consequently, examination and investigation have been conducted simultaneously within the aforementioned period for the percentages described before and when the suspect is sentenced or bailed out, regardless of the number of arrests and detention.

417. The first part of the first sentence in Article 9 (paragraph) 3 of the Covenant states that: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or another officer authorized by law to exercise judicial power". As described in the report, a suspect is required to be detained and brought before a judge within seventy-two hours after arrest, and the reason and the necessity of arrest and detention will be examined by a judge at each stage of issuing an arrest warrant, except arrest on a flagrant offender, determination of detention and extension of detention period. This law will be applied in exactly the same way in a case where arrest and detention is conducted for another case after initial arrest and detention. Therefore, we understand that our system and administration of pre-sentence arrest and detention are in accordance with the aforementioned provisions of the Covenant.

418 The second part of the first sentence in Article 9(3) states that: " A person who is arrested and detained on a criminal charge shall be entitled to a trial within a reasonable time, or to release". As described previously concerning pre-sentence (i.e. pre-trial) restraint, a suspect will be sentenced (i.e. tried) or bailed out within twenty-three days in ordinary cases, and there is no exception to this rule. More than one half of the suspect detained for ordinary crimes, except professional traffic negligence or traffic violations, were sentenced (i.e. tried) or bailed out within ten days of detention. Therefore, our legal system concerning arrest and detention is considered to be in accordance with the aforementioned article of the Covenant.

419. The general opinions (i.e. general comment 8(16)) of the Committee state that a pre-sentence (i.e. pre-trial) restraint should be exceptional and as short as possible. In Japan, the Code of Penal Procedure regards a criminal investigation (be) conducted on a non-compulsory basis as a basic principle. In fact, 1991 and 1992 statistics show that the percentage of pre-sentence detained persons of a total of 2.2 million suspects for all criminal cases was only 3.6%, and the pre-sentence (pre-trial) restraint is exceptional with a period within twenty-three days, and more than half of the suspects were sentenced (i.e. tried) or bailed out within ten days. Therefore, we consider that our legal system of pre-sentence (i.e. pre-trial) restraint meets the requirements of the Covenant.

(83) RELIEF OF PERSONS COMMITTED TO PSYCHIATRIC INSTITUTIONS

420. The next question is 2(e) is as follows: "Please clarify what remedies are available to a person who has been committed to a psychiatric institution upon the decision of a prefectural governor or the Psychiatric Review Board".

421. Our reply to this question is as follows: As for persons with mental illness who are placed under involuntary hospitalization by the order of the prefectural governors in accordance with the Mental Health Law, they are able to request discharge at any time. When such a request is made, the Psychiatric Review Board, the third party organization, will review whether that person should be continuously kept in hospital or not. It is also possible for patients, who are not involuntarily admitted to a hospital by the order of the prefectural governors, to request discharge, and such a request will be reviewed by the Psychiatric Review Board. When a patient is deemed to be hospitalized as a result of the review by the Psychiatric Review Board, it is possible for him to make such a request again for discharge. In that case, in order to conduct the review independently and objectively as much as possible, another Psychiatric Review Board is in charge of the review.

422. The designated mental hospitals are requested to submit periodic reports about patients' conditions to prefectural governors every six months in the case of involuntary hospitalization by the order of prefectural governor, and every twelve months in the case of involuntary hospitalization for medical care and protection. Based on these reports, the Psychiatric Review Board will review whether patients should be continuously kept in hospital or not.

423. Furthermore, in the case that the prefectural governor decided that a patient should be hospitalized, a patient can request an examination to the Minister for Health and Welfare in accordance with the Administrative Appeal Law or State Tort Liability Act. The purpose of the hospitalization measures under the Mental Health Law is to provide appropriate medical care and protection for those in need. We will continue our efforts to apply relevant laws and regulations properly to ensure that human rights of those suffering from mental illness will be fully respected.

(84) CONTACT BETWEEN DETAINED PERSONS AND THEIR FAMILIES AND

LAWYERS, AND POWERS OF PUBLIC PROSECUTOR

424. The next question, 2(f), is as follows: "Please clarify whether a person detained by the police can immediately contact his family and a lawyer, and what the powers of the prosecutor are in that regard."

425. Our reply to this question is as follows: Upon arrest of a suspect, a police investigator or public prosecutor is required to immediately inform the suspect of his right to retain a defense counsel. It is provided in Article 203 of the Code of Criminal Procedure. When the suspect applies for the retainer of a defense counsel by designating a defense counsel or a bar association, the police investigator or public prosecutor shall immediately inform the defense counsel or the bar association covering the area of that effect as provided in Articles 209 and 78 of the Code of Criminal Procedure.

426. In the case that the suspect has been detained, the court shall immediately inform the defense counsel of that effect, as provided in Articles 207 and 79 of the same code. In this manner, the access of the suspects to their defense counsels is fully guaranteed. On the other hand, the Code of Criminal Procedure stipulates that a suspect under arrest or detention may interview his defense counsel or person who is going to be his defense counsel without any official being present, and may receive documents or articles therefrom, as provided in paragraph 1, Article 39 of the Code of Criminal Procedure.

427. As explained in the report based on paragraph 3 of Article 39 of the Code of Criminal Procedure, a public prosecutor (and) a police investigator, etc., may, in case it is necessary for the investigation, designate the day, place, and time for interview. From the time of the arrest of a suspect until his transfer to a public prosecutor, the police are in charge of such designation, while after transfer of the suspect to a public prosecutor, in principle, the public prosecutor is in charge of designation. The same paragraph 3 of Article 39 of the Code of Criminal Procedure stipulates that such designation shall not unreasonably restrict the rights of the suspect to prepare for defense.

427.2 In practice, utmost attention is paid both by the police and the public prosecutor's office so that the suspect's rights to defense are respected properly. When the defense counsel applies for interviews with the arrested suspect, the police make it a rule to grant them immediately. Even if such interviews are to interrupt and impair the ongoing investigation remarkably, the police will grant them at the earliest convenience in due consultation with the defense counsel concerned. Inmates' interviews with their defense counsels are permitted even out of the office hours as freely as possible if such interviews do not affect the proper management of the police custodial facilities.

428. In a case in which a public prosecutor expects to designate the time and place of a suspect's interview with his defense counsel, the public prosecutor will notify the chief of the prison of that effect. According to a survey conducted by the Ministry of Justice in June, 1992, out of a total of 7,808 detainees throughout Japan, only for 278 detainees, for only about 3.6% of the total, such notifications were issued. As for the remainder of about 96.4% of the detainees, their interviews with their defense counsels have been conducted freely, without any designation of the time or the place of the interview. In this way, the interview designation by public prosecutors has been conducted sparingly. In case the defense counsel does not agree to the interview designation by the public prosecutor, he may ask the court for relief. According to another report by the Ministry of Justice conducted during the same period, a total of 483 requests for interview had been made by the defense counsels, or persons who were going to be defense counsels, of the 278 detainees about whom the notice had been issued. Out of the above 483 requests for interviews, 389 interviews were designated, and only in 16 interviews thus designated, the requested interview time was slightly restricted.

429. 'Consultation committee on suspects right to interview' was created between the Ministry of Justice and the Japanese Federation of Bar Associations in February 1988. The Committee has deliberated on the practice of detainees' interviews with their defense counsels. We believe it has contributed greatly to bringing about an understanding for the various operational improvements recently made relating to the practice of interview.

430. The next point is concerning the access to the family. In case a police has arrested a suspect, his family or person to represent them is notified of that effect, including the place of detention and so on; except when such notice is gravely impair the ongoing investigation, for example, when the police intend to search his dwelling later, and the notice would lead to the destruction of evidence. If a suspect has been detained and no defense counsel has been appointed, the court shall inform one of the relatives or other persons designated by the suspect of that effect, including the place of detention, as provided in Articles 207 and 79 of the Code of Criminal Procedure.

431. In case the police receive a request for interview from the suspect's family members or other persons who are not his defense counsels, the police grant it except when such interview is to impair the ongoing investigation, or to affect the proper management of the police custodial facilities. In principle, a detained suspect may interview with his family members or any other persons who are not his defense counsels as provided in Articles 207 and 80 of the Code of Criminal Procedures. In case the court has convincing reason to believe that the detained suspect may escape or destroy evidence, it may, upon request of the public prosecutor, or upon its own authority, forbid the detained suspect to interview with persons other his defense counsel or person who is going to be his defense counsel, as provided in Articles 207 and 81 of the Code of Criminal Procedure.

432. However, cases in which the public prosecutor makes such a request to the court have been limited only to those cases where there is a high probability that the evidence will be destroyed, such as stimulant drug offenses. According to the survey conducted by the Ministry of Justice in June, 1992, such cases had concern about 18.7% of the total of the detainees. It concludes our reply to question 2(f).

(85) CONTENT AND APPLICATION OF THE POLICE CUSTODIAL FACILITY BILL

433. Question 2(g) is as follows: "Please elaborate on the content of the Police Custodial Facility Bill referred to in paragraph 161 of the report. Do the provisions of the Bill apply to pre-trial detention, and to the serving of a sentence of imprisonment following conviction?"

434. Our reply to this question is as follows: The purpose of the Police Custodial Facilities Bill is to guarantee the appropriate treatment of the detainees, and operate the police custodial facilities properly, paying due attention to the human rights of the detainees, as provided in Article 1 of this Bill. It aims at, firstly, to stipulate clear legal provisions for the treatment of the arrested; and secondly, to guarantee the equal treatment of the arrested and detainees in the police custodial facilities as well as those detained in detention houses. In order to guarantee the human rights of the detainees, Article 1 of the Bill provides that appropriate treatment shall be given to the detainees, with due attention to their human rights; and Article 5 of the Bill provides the respect for human rights of the detainees by detention officers, and a clear separation of detention from investigation, thus guaranteeing as a system in which the investigation and detention will not be mixed up.

435. Chapter 2 of the Bill guarantees equal treatment of the detainees in the police custodial facilities and those in the detention houses by providing details on their treatment. There are some examples: Article 9 provides the separation of female and juvenile inmates; Article 11 provides notice to the inmates of the beginning of detention; Article 21 provides the supply of commodities; Article 23 provides hearing of the health conditions of the inmates; Article 24 provides medical examination and treatment by doctors; Article 25 provides freedom of religious activities; Articles 28 and 29 provide interviews with defense counsels and others; and Articles 30 and 31 provide sending or receiving letters to and from defense counsels and others. The Articles 36 through 38 provide detailed statutory procedure for the inmates to file a complaint.

436. The Police Detention Facility Bill does not apply to the convicted inmates serving imprisonment sentence, because Article 166 of the Penal Institution Bill provides that they are not (to be) detained in police detention facilities. It concludes our reply to 2(g).

437. And with your permission, I would like to go on with our replies in chapter three. The question of 3(a) is as follows: "Please clarify whether..."

438. The Chairman. Madame Chanet, did you ask for the floor? You have the floor then.

439. Ms. Chanet. Mr. Chairman, forgive me, I thought I had understood that Mr. Kunikata was going to go on to chapter three.

440. The Chairman. That is correct.

441. Ms. Chanet. Oh, I do apologize. Fine. Perhaps it was yesterday evening this was decided, and of course I wasn't here. Thank you.

442. The Chairman. Mr. Kunikata, you have the floor.

(86) RESPONSES OF THE JAPANESE DELEGATION TO THE QUESTIONS UNDER

CHAPTER THREE OF THE LIST OF ISSUES: ORDERS OF DEPORTATION

443. Mr. Kunikata. Thank you, Mr. Chairman. Chapter 3(a), the question is as follows: "Please clarify whether the lodging of a 'kokoku appeal' against a deportation order has suspensive effect".

444. Our reply to this question is as follows: In the process of the disposition (to) issue a writ ordering deportation, a suspect, who is found to be subject to one of the reasons for deportation by the examination of the immigration inspector, has the right to request a special inquiry officer for a hearing. Furthermore, a suspect has the right to file an objection with the Minister of Justice in case he does not accept the findings of the special inquiry officer. The suspect shall never be deported pending these procedures. A foreign national, who was issued with a writ ordering deportation through those careful procedures, is able to file a request for the cancellation of the disposition to the court. However, merely filing a request does not cause the suspension of the execution of an administrative disposition. In this case, the foreign national accused can file a request for the suspension of the execution to the court. If a decision is made by the court to suspend the execution, the execution of the writ ordering deportation will be suspended.

(87) LAWS AND PRACTICES RELATING TO TELEPHONE TAPPING

445. Question 3(b) is as follows: "Please provide information on the law and practice relating to telephone tapping and the use of listening devices".

446. Our reply to this question is as follows: Wire tapping is an indictable offense prohibited by Article 104 of the Telecommunications Business Law and by Article 14 of the Wire Telecommunications Law, and violators are subject to criminal proceedings. Similarly, in the case of using listening devices, if the placement of a device involves trespassing in the residence of another person, the offender can be punished under the provisions of Article 130 of the Penal Code for the crime of house breaking.

447. The law makes no special provision in respect of the use of wire tapping and listening devices as a method of criminal investigation, and its use has been more or less confined to the following sorts of cases: In his ruling on the case of a criminal organization which made use of the telephone in pursuit of illicit stimulant drug sales, a judge has gone on record as saying that the tapping of the suspect's telephone and the recording of the conversations were appropriate means for the police to use to collect evidence of a crime, given that the proper steps were taken to obtain a warrant of inspection beforehand. It is extremely rare, however, for the judiciary to give this kind of open approval to the use of wire tapping during official criminal investigations, and this lack of guidance has itself become a serious problem, given the rapid increase of crimes involving the use of telephones in recent years. As for the use of listening devices, there have been no cases that we are aware of in recent years. Which concludes our reply to the question 3(b).

(88) ACT FOR PROTECTION OF COMPUTER PROCESSED PERSONAL DATA

448. The question 3(c) is as follows: "Please elaborate on the functions and activities to date of the Management and Coordination Agency established under the "Act for Protection of Computer Processed Personal Data Held by Administrative Organs" of October 1989".

449. Our reply to this question is as follows: The "Act for Protection of Computer Processed Personal Data Held by Administrative Organs", and herein after referred to as the "Personal Data Protection Act", which was formulated to protect the rights and interests of individuals, defines the basic legal requirements for the handling of personal data held in the computer files of the nation's administrative organs.

450. It is part of the work of the Management and Coordination Agency to supervise the work of the nation's administrative organs, and it is in this context that the Agency also involved itself in the administration of the Personal Data Protection Act in so far as it impinges on the management of personal data handled by said administrative organs. The Management and Coordination Agency was not, I repeat, was not established on the basis of the Personal Data Protection Act.

451. The Personal Data Protection Act makes a variety of provisions for restricting the activities of the administrative organs that actually hold personal data. These include, for example, restriction on holding personal data files, namely, because of personal data written on magnetic tape or similar recording mediums; an obligation to ensure the security and accuracy of personal data; and restrictions on use of, or providing, personal data for purposes other than the file holding purpose. The Act also provides the rights of individuals to request disclosure of the contents of their own personal data files, while at the same time establishing a duty whereby administrative organs must in principle disclose all such personal data as may be requested by the individual to which it relates.

452. The Management and Coordination Agency also takes responsibility for the following matters to ensure the unified and proper implementation of this Act. Firstly, receipt of prior notification of the intention to hold a personal data file. The agency must be issued with prior notice by any administrative organ that intends to hold a new personal data file. Secondly, public notice of personal data files in the official gazette; namely, the Agency uses the official gazette to make public a list of all public data files, in respect of which notice has been received from administrative organs. Thirdly, request for submission of materials and explanation and statement of opinions; namely, the agency may, wherever it seems appropriate to do so, call upon administrative organs that hold personal data in computer files for administrative purposes to supply specified materials and/or explanation and may state opinions. Forthly and lastly, preparation of guidelines etc.; namely, the Agency prepares guidelines and provides advice to ensure that the provisions of the Personal Data Protection Act are properly applied by the various administrative organs.

(89) CONTROLS EXERCISED ON FREEDOM OF THE PRESS AND MEDIA

453. The next question 3(d) is as follows: "Please provide information on the controls exercised on the freedom of the press and mass media".

454. Our reply to this question is as follows: Article 21 paragraph 1 of the Constitution provides that freedom of assembly and association, as well as speech, publication, and all other forms of expression, are guaranteed. Although the freedom of the press is not expressly referred in the Constitution, judicial precedent concerning the freedom of the press states as follows: "Reports made by the press provides important information for the people to decide on national political issues in a democratic society". In this sense, the freedom of the press contributes to the people's right to access. Therefore, it is obvious that the freedom of the press as well as the freedom to express one's inner thoughts is guaranteed by Article 21 of the Constitution. Moreover, the freedom to correct information should be, in addition to the freedom of the press, fully respected on the basis of the spirit of Article 21, so that the contents of the reports made by the press is correct. This is the judgment of the Supreme Court on 26th November, 1969.

455. While the freedom of the press is guaranteed by Article 21 of the Constitution, newspapers and broadcasting are treated differently from each other. Broadcasting makes exclusive use of the resource of electronic waves whose available number is limited, and broadcasting is a medium which instantly transmits a great volume of information with pictures to a great number of people over an extensive area. Accordingly, some discipline is stipulated in the broadcasting law regarding the contents of broadcasting. The disciplines on the contents of broadcasting provided for in the law are, for example, as follows: Firstly, broadcast programs should not damage public peace and good morals; secondly, they should be politically fair; thirdly, they should not distort facts; and forthly and lastly, problems around which opinions are divided should be treated from as many viewpoints as possible. The broadcasting which claims to destroy the Constitution or Government of Japan by violence is prohibited as provided in Article 107 of the Electric Waves Law.

456. On the other hand, there exists no laws regulating newspapers. In Japan, newspaper companies establish the newspaper ethics themselves, and these ethics are used as the guidelines in fulfilling the social responsibility of newspaper companies. If news are to have correct contents, the freedom of gathering of correct information should also be guaranteed. But in some cases, information gathering activities may infringe the right of the third party. As to the limit to these activities, a judicial precedent states as follows: "The freedom of the press is restricted to some extent for certain reasons. For instance, it can be restricted in cases where other interests, such as the necessity of conducting fair trials needs to be attained." Article 215 of the Code of Criminal Procedure Enforcement Regulations provides restrictions on information gathering activities as follows: "No photographing, recording, or broadcasting in the courtroom is allowed without the prior approval of the court". Article 100 paragraph 1 of the National Public Service Law stipulates the obligation of national public employees to keep the secrets known to them in their job. Article 111 of the same law provides that a person who instigates a national public official to disclosure, such servant will be punished with imprisonment with labor not exceeding one year, or with a fine not exceeding 30,000 yen. It concludes our reply to the question 3(d).

(90) FREEDOM OF EXPRESSION, ASSOCIATION AND ASSEMBLY

457. The last question 3(e) is as follows: "Please elaborate on the restrictions to the freedom of expression and the freedom of association and assembly".

458. Our reply to this question is as follows: The rights to freedom of expression and the freedom of association and assembly are guaranteed under Article 21 of the Constitution, and greater respect is paid, especially to the right of freedom of expression as essential factor to the maintenance of democracy. On the other hand, the right to freedom of expression has a social nature, unlike freedom of one's inward thoughts. Because of this, some restrictions are put on this right as those described below, but all of these restrictions are the minimum, and meet the provisions of paragraph 3 of Article 19 of the Covenant.

459. The first one is the prohibition of the distribution of obscene literature, as provided in Article 175 of the Penal Code. The second one is the prohibition of defamation and insult, as provided in Article 230 and the following paragraphs of the Penal Code. The third one is the certain restrictions on documents and pictures used in election campaigns as provided in Article 142 and the following paragraphs of the Public Offices Election Law. Forthly, the forth point, is the prohibition of false or exaggerated advertisement of medicines, etc., in Pharmaceutical Affairs Law, and restrictions on outdoor advertisement as provided in Outdoor Advertisement Law, etc.

460. Japanese laws and by-laws enacted by local public bodies regarding the restrictions on assemblies and collective marches are as follows: Article 5 of the Subversive Activities Prevention Law have restrictions on those organizations which were engaged in violent subversive activities. And the Article 19, paragraph 1, item 3 of the Contagious Disease Prevention Law provides restrictions on assemblies for the cause of contagious disease prevention. The by-laws of local public bodies provide restrictions on demonstrations or collective marches on the roads and in parks and other public places, and the Article 77, paragraph 1, item 1 of the Road Traffic Law provides restrictions on collective marches and demonstrations on the roads. These laws are limited to the necessary minimum, and in conformity with the provision of Article 21 of the Covenant.

461. The Subversive Activities Prevention Law prohibits collective demonstrations, etc., in Article 5, or designates dissolution in Article 7 to such an organization which was engaged violent or subversive activities as an organization and is highly likely to continue or repeat such activities in the future. These measures are taken only when they are needed for maintaining public peace, and by no means violate the freedom of assembly and association. And no organization has been dissolved or controlled in accordance with this law.

462. Mr. Chairman, it concludes our replies to the series of questions in chapter two and chapter three. Thank you very much for the long time, and thank you very much for your attention.

463. The Chairman. Thank you very much, Mr. Kunikata for your very informative and very relevant answers to these twelve questions that we had among the list of issues. Now, the floor is open for members that want to make additional questions. I have ten members on my list here, and you know the limited time that is to our disposal. I think everyone is aware of that, and I don't need to remind you of it anymore. Madame Chanet, you are first on the list. You have the floor, Madame Chanet.

(91) SUPPLEMENTARY QUESTIONS BY MS CHANET (FRANCE)

464. Ms. Chanet. Thank you, Mr. Chairman. Allow me first to thank you, Mr. Kunikata, for having given all these answers to these twelve questions. I was particularly grateful, although I don't entirely agree with his interpretation for his reply to question 2(d), because he cited the terms of the Covenant and the general comment of the Committee, and it is in this way that our questions should be answered, comparing the internal legislation with the Covenant, and not internal legislation with internal legislation or with policy or public opinion.

465. My questions concern chapter two. The first concerns the implementation of the death penalty; the cases in which the death penalty is handed out in Japan. According to what was told (to) us this morning, there is a reform under way, but it hasn't yet reached the Diet because of opposition by part of the Bar. My question is: I'd like to know a little more about the kind of opposition, and what is envisaged in the review of the impressive list of penalties, of crimes punished by the death penalty.

466. You are aware that, under the Covenant, the death penalty is only possible for the most serious crimes, and the general comment of the Committee on this point is that this should be restrictive. In this list, we have killing someone on the roads by mistake, also homicide as a result of a plane accident. Now, I wonder about the definition of the most serious crimes, taking into account the result (of) the death of a number of people, and the degree of responsibility of the person responsible. It (should be) very rare to see the most severe penalty being applied when the person responsible did not really want to kill someone, and to use the consequences of the crime to describe the severity of the crime. So I'd like to have some clarification from the delegation on this point.

467. Now with regard to Article 10 of the Covenant, which provides that "anyone deprived of their freedom should be treated with humanity and respect for the dignity of the human person", I would like to refer to the disciplinary regimes in prisons. According to the information we have received from non-governmental organizations, it would seem that certain prisons in Japan have a very harsh regime, for example, if one speaks to another detainee outside the regular hours, it would lead to isolation in cells, and so, I'd like to know if this is correct; if people are held in isolation after having spoken to another detainee, and if the regime is as harsh as we're told, and we have some photographs as well; in these isolation cells, there are rules concerning the gestures that one can make: one can't lie down during the day; one has to remain facing the door so as always to be visible, and so a person cannot change their position, and in certain cases the wrists of the detainee are attached, and it's not possible to undo their wrists even for meals, so everyone can see that it's absolutely impossible to use your hands to eat in this case. Is this information correct that we've received?

468. Mr. Chairman, I come now to a question now concerning the system of "Daiyo-kangoku" prison systems, I'm not sure that I've pronounced it correctly. This system is custodial, it's being held in custody for a maximum of twenty-three days, and one is at the disposal of the police and it's under police control, and we have a document with a photo: the policeman is in the center and he can see all the cells, including the furthest corners of them, and they're all lighted and there is twenty-four hour surveillance.

469. The question of these replacement prisons was brought up when we considered the Second Periodic Report, and Mr. Kunieda told us in the Committee that there were plans to improve the conditions of living for those who are detained, and their contacts with their family. The Committee pointed out that that was a good improvement, but there was a risk of institutionalizing a system, which raised a number of problems of a very serious nature under various articles of the Covenant, in particular Articles 7, 10, and 17; particularly the constant surveillance of the policemen raised the same problem as in prisons, and the general comment on Articles 7 and 10 is that a person who is detained enjoys the same rights as a person who is not detained, except of course what is in here in detention, and a detainee has a right to a minimum of a private life, which is absolutely not the case if he is under surveillance twenty-four hours a day and every gesture is watched, every movement is watched. Now, it is not just the material conditions, there are also the legal conditions under Articles 9 and 14 of the Covenant. First of all, the time limit of twenty-three days is not the short time covered in the Covenant or in the general comments or in the precedents of the Committee.

470. But there's also the question of a free trial in Article 14, and equality of the defense and the prosecutor. One could ask whether this kind of total control by the police, that is a party in the trial, is not an advantage, a considerable advantage, to one party because the other party can be held for twenty-three days, and during that period, how can the person who is going to be accused of a crime, how can he exercise the rights guaranteed by the Covenant and prepare his defense? How can such a person not be subjected to pressure which will constrain that person to confess, which is contrary to Article 14, paragraph 3(g) of the Covenant. There is no control, in other words; the magistrate controls the legality of the detention, but he doesn't control the conditions of detention. The detention is done by the police; the interrogations are carried out without any limitation in their duration; I don't think there's any intervention by a doctor; there can be recourse to a lawyer, but in certain cases it would seem that the lawyer can be excluded if the requirements of the inquiry so demand.

471. So, my question is to know whether this regime is not something that creates pressure, which brings pressure to bear with only one aim in mind, that is, to get confessions, and it, therefore, limits the right of the person accused of a criminal offense, preventing them from preparing their defense freely. This regime has been denounced by the Supreme Court of Japan, which annulled certain procedures; it is the result of procedure under Resolution 1503, it has been denounced by the non-governmental organizations very vigorously, and as I see it, it raises a serious problem under Articles 7, 9, and 10 of the Covenant.

472. Mr. Kunieda, when he came in 1988, said that he could announce with regard to this procedure some better news in the next periodic report. So, I'd like to ask the delegation whether today it can give us some news that would enable us to see that a person who is accused of a criminal offense see their rights guaranteed under the Covenant. Thank you.

473. The Chairman. Thank you, Madame Chanet. I now give the floor to Mr. Dimitrijevic.

(92) SUPPLEMENTARY QUESTIONS BY MR. DIMITRIJEVIC (YUGOSLAVIA)

474. Mr. Dimitrijevic. Thank you, Mr. Chairman. I am very thankful to the delegation of Japan for providing us with detailed answers to the questions in the list of issues, but unfortunately these answers are only a refinement of the statements in the report, which is reference to laws, reference to regulations, reference to norms, the normative part of reality, but not to the existing situation. Of course it is well known that the existence of norms that are in accordance with the Covenant does not cover all the human rights situations, or for that matter the obligations of the government, and I think we would appreciate and hope we will get it in reply to the specific questions; we would appreciate a glance at the reality which is behind these norms, and which is as repeatedly said here, covered by this provision in Article 40 referring to the factors and difficulties.

475. I am afraid from the experience we had yesterday that sometimes the government tends to understand these difficulties not as difficulties that have to be surmounted, but as excuses for not implementing the Covenant, which is a policy as several speakers have indicated yesterday, which is not in accordance with the Covenant or the spirit of the Covenant, because I noticed that the delegation very often refers to the "spirit of the Constitution" and the "spirit of the laws", but if there is something like a spirit, most lawyers are not very fond of this expression, then there is the "spirit of the Covenant", and certainly the "spirit of the Covenant" is that it is a major social effort to increase the awareness of the human rights and the catalogue of human rights which has been universally accepted. I imagine there are some people who don't believe in human rights at all, but you know those people should not ratify the Covenant in the first place.

476. Well, I shall heeding your advice to save time, I shall only concentrate on two or three issues. It has been made easier for me by the intervention of Madame Chanet, (who) has saved me the effort of repeating most of what she said in a less brilliant way, but I still have...

477. I would like to draw the attention of the delegation to Article 10 paragraph 3 of the Covenant, that says the penitentiary system "shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation". So, according to the Covenant, serving a time sentence is not a punishment, is not a vengeance of the society; but it is an effort of the society to reform its members that have violated the law. It seems to me that from the illustrations that we got by the perusal of the relevant information we have received from various places and from the press, and from the points highlighted from Madame Chanet, we see that there are serious doubts whether the prison system in Japan is geared to set such a result, if we take for instance the solitary confinement, which is a disciplinary measure ,is a very severe restriction of movements; it's forcing people to sit for hours in a position that must entail difficult problems for the nerves and for the blood vessels. I don't see the point of this system, and don't see how this can be reconciled with Article 10, and an interesting, a symptomatic way of finding out whether Article 10 has been really observed would be to know what has been the success of penitentiary treatment, so I would like to, if the delegation can avail themselves of these facts, I would like to have the facts on the number of recidivists. I am afraid that this kind of treatment will not be conducive to social rehabilitation.

478. The other issue that already has been raised by Madame Chanet is the notorious problem of the 'Daiyo-kangoku', and I think it is high time that in the interests of the image of Japan in the international community, this particular way of treating people under detention be abolished, because these two words unfortunately have become famous throughout the world. And even when you look, you know when you speak about problems of prison detention, we are used to problems that stem from the lack of means; we are used to hearing about real detention centers where people are not fed properly, they are not heated properly, where the staff is incompetent. But you know if you look at some of the pictures you see of 'Daiyo-kangoku' as a very modern institution which belongs to something that you see in science fiction in the so-called "negative utopia", a very perfectly built institution, perfectly equipped, but you know geared to constant supervision of the inmates. And you know, in addition to the problems that are raised under Article 9, and in addition to this being in itself already an inhumane and degrading treatment.

479. And as far as we know from experience, an invitation to further treatment of that kind, an ideal possibility for action that is torture or approaches torture, it to me raises important doubts as to the implementation of Article 15 as to the presumption, no, not 15. Article 14 paragraph 5, the presumption that these people are by definition to be presumed innocent. Their detention can last for a fairly long time, the detention that is justified by some kind of suspicion and indication, but it is not, these are not people who have been committed, and to keep people, who are by definition not guilty under such circumstances, amounts to a treatment that is degrading and inhumane. It becomes more degrading because these people are to be considered as innocent.

480. Another question that was touched upon yesterday in a general fashion by Mr. Pocar relates to again a provision, a part of Article 14, that has frequently been neglected, where Article 14 says that "in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law"; this provision has to be understood as offering an opportunity for every citizen and every person under the jurisdiction of the State Party, to have real access to court and to have the possibility that he has the right to be vindicated by the court, and examined properly.

481. And as Mr. Pocar noted, if the system of remedies is also related to remedies in Article 2, if it is so, if the experience shows that it takes an inordinate amount of time to have your claim decided by court, this reduces this possibility to nothingness. I will give only an example which I have, which the delegation will correct me, but there seems to be a case related to the privatization of the Japanese National Railways, where the new private company has, under certain conditions using and this has often happened in history and especially if you know the history of the labor movement, in using an opportunity to re-employ his people, it seems to be that those people who are not re-employed or who have been sent to some kind of retraining, seem to be, most of them seem to belong to a trade union which was very vocally against this change.

482. It is already suspicious that these people seem to stem from that group, and for everyone who has some knowledge about the history of the labor movement or the trade unions, this is already a suspicious thing. And what happens, these people have a recourse before the labor commissions; they have to go to the regional labor commission; then it goes to the National Labor Commission; but then when they receive a favorable opinion by the Labor Commission, then the government or the management of the railroads can start proceedings of this recourse, and as Mr. Pocar has indicated, this can last for a number of years, which in fact means that there is no opportunity in a labor situation, which is very important for many peopleÕs lives, there is no opportunity to have a decision by a competent court. So, I would like to know what are the general figures about the duration of the proceedings, and how can these things be improved, apart from ratifying the Optional Protocol in which case, according to judicial or jurisprudence of the Committee, these cases would come to the Committee in spite of the rule of the exhaustion of local remedies because the Committee has found that in the cases where these remedies are prolonged, there are no remedies.

483. So, this is another point that I would like to have some qualification. And then, in relation to..., there seems to be a problem about privacy (under) Article 17. In many aspects of life in Japan, there seems to be that the employers, that the authorities, are so intent to know too much about peopleÕs private lives. This starts already with the catalogues with the register, where everybody can look at the register, and judging by what comes after some of these names, if it is the 'eldest son' or only 'male', they can know from the very beginning whether these people are legitimate or illegitimate, then employers telephoning to their employeesÕ parents and advising, which is another problem related to the position of women, advising girls that have married to quit their jobs, telling their parents that they should advise their daughters, or indicating that the company doesnÕt like that the girl, unmarried girl, takes another apartment, doesnÕt live with the parents. There seems to be too much invasion of privacy, and I just wondered what is being done in this respect.

484. And in view of frequent reports about wire tapping of potentially subversive people, I would like to raise an issue of general nature. And that is what about the secret police, the political police, which exists in every country, and which has to be controlled. How are the workings of the political police controlled by democratic instances? Is there a special branch of the Parliament that does it? Are there other ways of inspection, because this is a very sensitive area and these are the institutions that tend to be the first ones to invade the privacy and to abuse their powers to look into personÕs lives. And this is the beginning of another futuristic nightmare where you would live in a society that is totally transparent and which doesnÕt allow you room for any kind of private life. Thank you, Mr. Chairman.

(93) SUPPLEMENTARY QUESTIONS BY MS HIGGINS (U.K.)

485. The Chairman. Thank you, Mr. Dimitrijevic. And I now give the floor to Mrs. Higgins. You may have the floor, Mrs. Higgins.

486. Ms Higgins. Thank you, Chairman. IÕll try and be brief though we are dealing with two sessions, so necessarily it will take a little longer than usual. Again, I thank Mr. Kunikata for his very informative answers so carefully prepared for us.

487. I begin with Article 6, and IÕm particularly interested in the position of the people who are on death row. I understand that, first of all, people are often a long time on death row because of the possibilities of applying for retrial or review. And so that by the time one comes to execution, the potential population for execution is rather elderly. I understand also that theyÕre sometimes held in solitary confinement, and I would like to know why.

488. I believe that visits to prisoners on death row can be curtailed, it is said, for reasons of their stable condition. Now, what does that exactly mean? I believe that it is up to the decision of each director of each prison to decide upon that, (and) that there are no national guidelines for curtailing visits, which I find disturbing. Furthermore, I believe that the regulations provide that they can only see close relatives or lawyers, and indeed may not even write to people outside of a permitted list of recipients of communications. Finally I would like to know why there are no published regulations of a national wide sort on execution procedure.

489. I now have to say some words about 'Daiyo-kangoku'. I will seek not to repeat what has already been said, but I do associate myself with what colleagues have already said. And what I would like to do is in a sense go through the documents that have been so kindly prepared for us by the delegation. ItÕs extremely helpful to us and I have read it with great care. I start by saying that I, too, am disturbed that this is now institutionalized and defended with all sorts of reasons.

490. Instead of being--as we rather had the impression last time-- a temporary difficult matter because of lack of prison resources, but, now, it is institutionalized and indeed praised. The two underlying reasons offered are that, first, you have to look to see whether it facilitates the system, as a whole, working well. Well, my answer to that is (that) I do not accept that view. There are many things that of themselves are specifically prohibited under the Covenant, and whether if they were allowed they would facilitate the system as a whole working well, and the better administration of criminal justice is not the test.

491. And the second reason offered, and itÕs one that we heard yesterday, is the public donÕt mind it. And again as Mademoiselle Chanet has clearly said, that is not the test when one ratifies the Covenant. One provides leadership about formulating public opinion on what has to be done to be compatible with the Covenant.

492. I now turn to the specifics. First, there is the reference to this being a good system because of itÕs put the shortness of the period of detention. I can think of all sorts of dreadful things that would allow someone to be there very very shortly, if you torture someone youÕll get your answer extremely shortly. This canÕt, of itself, be a reason. In any event, the 23 days, from the Committee perspective, does not look a short period. And in any event, people are detained for successive 23 day periods. I believe they may be bought, kept within the substitute prisons on succession of different charges, and furthermore they may be interrogated on matters going beyond those specified charges.

493. Well, I would also like to say that it does not seem to me sufficient to say that these are places where investigation and interrogation, I am reading now, "can be made easily and smoothly and the assignment of personnel may be made conveniently". Again, this cannot be the criteria, and if this could perfectly well be done elsewhere, and the convenience of the state is not the criterion in the protection of human rights.

494. We are told of course about the number of prisons in Japan being no more than a hundred and fifty-four. Whereas, these custodial facilities at police stations total over 1200. But thatÕs exactly because the decision has been made to build and institutionalize these facilities, and not to provide the extra prison facilities. That is a choice that has been in your own hands.

495. And then finally on this point, although I see on page 9 (of the report) the regulations about the complete separation of the investigation procedures from custodial management in a police station. Those who are detained there apparently regard this as a more honored in the form than in reality. I see the reference to the system of filing complaints, but many of the procedural documents, and I refer to here the time of the detention, the time and hours of interrogation which seem extraordinarily long, doctorÕs visits, these are not made available to the detainee or counsel. They will be made available only if the court itself at the subsequent trial requests them.

496. And moreover, one has not to lose sight of the fact that the suspect is not entitled to have his counsel with him during the interrogation. And when one has endless hours of interrogation over a period that can amount to several weeks even with the 23 days system, this, I have to say again, is unacceptable, and I do hope for the reputation of Japan that the Government will not as it were dig itself in more insistently to defend it, but will reconsider the matter.

497. Now my question on Article 9(3) is purely a question seeking information, and it relates to the new procedures on mental health. We do see some certain definite improvements there that we appreciate, and what I want to know is, how are the psychiatric review boards working? How many people have in fact been released as a result of an application to them, and are you pleased with the way the procedures are working?

498. And, I have a final comment, too, related to Article 22. Here again IÕll keep my comments very brief and not repeat what Mr. Dimitrijevic has said. But one does have the impression of an anti-trade union culture; that companies are permitted and indeed, state owned companies are permitted, to require employees to attend residential sessions in order it is put to change their consciousness. And the changing of consciousness really amounts to the requirement that they leave the trade union. And a retraining for new work again amounts to showing a willingness that you will leave the union; and there is data showing that those re-employed after retraining are indeed those who choose to leave the union. I wonder what action is being taken to ensure that the rights in Article 22 of the Covenant, the true freedom of association without these permitted pressures, are being carried out. Those are my questions and observations. Thank you.

(94) SUPPLEMENTARY QUESTIONS BY MR. LALLAH (MAURITIUS)

499. The Chairman. Thank you, Mrs. Higgins. Mr. Lallah, you now have the floor.

500. Mr. Lallah. Thank you very much, Mr. Chairman. I will start by congratulating Mr. Kunikata for the very crisp and concise answers he has given to the written questions. And IÕm also grateful as Mrs. Higgins was for having this document, which most unfortunately we had to read while listening to the answers of Mr. Kunikata. I wish it had been given a little before because it certainly gives some idea of the thinking that Japan has, that the authorities in Japan has, with regard to very important matters which affect the physical integrity and the guarantees provided by the Covenant to the individual who finds himself in the most unequal of situations of having pitted himself against the huge arsenal of the state, in the shape of the police and the judicial authorities.

501. I say this with some insistence because these articles of the Covenant, that we are dealing with, Article 7, Article 10, Article 9 and Article 14, all are relevant in their various ways to guarantee the liberty of the individual. I have a feeling looking at the system that the dice is loaded, certainly on the side of the state, when the government provides for freedom, for the principle of presumption of innocence, and fairness of trial. And like Mrs. Higgins, I find that you tried to justify this by having recourse to public opinion; and what is most strange is perhaps an inelegant comparison with other countries where you say that the police is of low education or low qualifications, whereas your own police... The quality of police person is generally low, that is what you say of other countries. And the communities do not trust their police very much; but fortunately in Japan the police persons are given advanced and unified training and education throughout the country, and the public confidence in them is high. This is a very good thing if it were true in practice, and if the system within which they operate allowed outside investigation of this by the individuals concerned.

502. But we are not concerned with all this, the attitude that Japan has; we are concerned with whether it is consistent with the Covenant.

503. Looking at your system of substitute prison, I wonder whether there is not a misreading of Article 9(3) of our Covenant, because Article 9(3) covers not only the pre-trial process, but the actual trial process. I do not think that you are being very generous in putting accused persons under executive controls for 23 days which may be renewed. They should have been under proper judicial control as soon as they are arrested. I have a feeling that you have not quite interpreted Article 9 correctly.

504. But this doesnÕt stop here, because what happens to an accused person under executive control for this length of time may have an adverse impact on the guarantees of his right to a fair trial during the actual trial process. And I here refer to absence of counsel or difficulties put in the way of counsel to be of assistance to his client. Your system seems to put the burden always on the accused, he has to go to court to get the release; it should be the other way round. It is for the prosecution to justify the need before a court of law to keep a person beyond what would be prompt. Here, it is the other way round.

505. I, of course, take note of the fact that the police are trusted. Trusted. They have power. Too much power corrupts.

506. Mr. Chairman, there is the other little point that there is always a warrant before arrest. These warrants as we know exist in all countries that we have, whose reports we have examined. But it is what happens after the issue of the warrant that matters, and I will not prolong any further comments on that.

507. We have information, I think; the (Japan Federation of) Bar Association gave us a paper which gives a little bit of a different picture. And what I found amazing was that they cite a figure of 75% of cases where people are detained until the verdict. I would like some comments on that.

508. Secondly, I see that you have in your paper, I think paragraph 9, you have..., it's the last page of your paper, paragraph 9, you do say that "the principle of excluding from evidence confessions obtained by coercion, and procedural requirements that the court must examine the voluntariness of the confession before admitting it as evidence". This is a good procedure, but where does the burden of proof lie? How do the judges approach this problem of the admissibility of confessions? You will realize... I donÕt think I need go further into this.

509. ..But, when a person is in detention, of course, he is at the weakest psychological point; he may say anything. Are his statements read over to him? Does counsel have access to any statements that he makes? We donÕt know anything about this. In actual practice. We have been told the law: Counsel may ask that the interviews where he is allowed to be present, or may be postponed, but the counsel has to go to court. (But), the burden seems to be always on the accused.

510. We have heard that the law provides for bail. And we have complaints in the Bar Associations' paper that bail may be excessive. Is there any procedure in Japan for allowing bail on oneÕs own personal 'recognizance'?

511. Let us come to the trial process, now. I have some difficulties here. In the paper submitted to us by the Bar Association, I find that it is said that the record of the police is not made available to the defense. There is a duty on the part of the police; after all, it is just one part, and the accused is the other part; and the court must look at them with an impartial eye. If things are kept secret in the police records from the defense, how does he prepare his defense? We have Articles 14(3)(b) which says that the accused must have time and facilities for the preparation for his defense. If the record becomes known at the trial, what is it that happens? Can counsel say I am sorry these are things which I am seeing for the first time, please give me time so that I can consult my accused and prepare my defense accordingly. Are trials postponed or do they have to accept the system as it is, because the police are trusted, and the courts presumably accept whatever the police put in front of them. And the accused is put in a situation where he has, in the course of the trial, to conduct his defense.

512. I do not think that our Covenant in Article 14(3)(b) simply says facilities means, you know, putting a chair when heÕs interviewed, or the accused is interviewed. These are facilities which are closely connected with the defense of the accused, and this means the availability of the case that the accused has to meet in the course of the trial. And it is in the course of the trial that he comes to know about it. This is not, in my view, in compliance with Article 14(3)(b) of the Covenant.

513. I also..., maybe this is right, maybe this is wrong, the information..., I also have information from the Bar Association, which I believe the government also has in its possession, that heresy evidence can be used for the purpose of convicting an accused party. And IÕll be precise here. What is said in the paper is that the statement of a co-accused, of the co-defendant, may be relied upon to convict an accused party. But we have Article 14(3)(e) of the Covenant which gives the accused the guarantee of cross-examining and the opportunity of cross-examining any witness. But if a statement is produced and the accused is in the dock with the accused, how does he cross examine? Or, are these statements only used when the co-defendant is put in the dock, in the witness box, and is subject to cross-examination.

514. Mr. Chairman, I also have a further point on Article 14(5) of our Covenant, which guarantees an accused party, a person convicted of a crime, to have the right to have his conviction and sentence reviewed by a higher tribunal. I understand, maybe this is wrong understanding, that appeals are restricted on various grounds. They do not cover findings of fact, and what is more important, they do not cover the case of the reversal of the verdict of innocence into one of guilty by the court of appeal. I will remind you that Article 14(5) of the Covenant doesnÕt require that the finding of innocence of an accused party can be appealed from, and if it is appealed from, whether he has the right under Article 14(5) to have his conviction by the court of appeal reviewed. You are not alone in this, because I think at this very session we have some problems with another country. This is what I had to say about Article 14.

515. About Articles 7 and 10, there are informations that the privacy of persons are sometimes not respected in the sense that they are made to undress and their private parts are examined on some occasions, and maybe they hide things. I know that in some drug cases people have been found to hide drugs in their body. But, these should be exceptional, and I would like some indication of what are the measures of control to ensure that the police do not unnecessarily violate the dignity of persons in this way.

516. This morning I had an information. I think we talked very much yesterday about the obligation of people to carry their identity cards, and this is for aliens. I received some information this morning that there was a person called Huang Huai from China who carried an identity card but he didnÕt have it on him at the time, and he was stopped and when he said "my identity card is at home", he was restricted physically by the police. He was taken to the police station and eventually released, but some three hours later he was again stopped by the police and one of them was the same chap who stopped him before. I bring this up, Mr. Chairman, to suggest that there might be some way of dealing with this situation. If people have to carry identity cards and they donÕt have it on them, why are they not just told "Well, bring it tomorrow or the day after to the police station", otherwise some kind of action might be taken against them.

517. On another point, joining Mr. Dimitrijevic, about the delayed remedies in industrial cases. I wonder whether Japan shouldnÕt look at this properly, because we have had a large number of endurers who have complained about the difficulty of getting remedies, sometimes taking 16 or 20 years. What I would suggest is that perhaps some way might be looked into in order to prevent employers to make an abuse of their rights to appeal. Perhaps in the eventual verdict, some kind of further compensation might be given, like interest at the bank rate or various other measures to compensate for the time that they take to give these verdicts. Mr. Chairman, this is all I had to say on these two very important chapters. Thank you, Chairman.

(95) SUPPLEMENTARY QUESTIONS BY MR. PRADO VALLEJO (ECUADOR)

518. Mr. Chairman. Thank you, Mr. Lallah. I now am going to give the floor to Mr. Prado Vallejo, and then I still have six speakers on the list. Mr. Prado Vallejo, you have the floor.

519. Mr. Prado Vallejo. Thank you, Mr. Chairman. Mr. Chairman, I associate myself the questions raised by the distinguished members of the Committee, Mr. Dimitrijevic and Mrs. Higgins, for example. In my view, sir, it is a matter of concern to see what is happening with the second point under the list of issues, to see what is going on in Japan, I mean. A society of a democratic and free nature, developed and prosperous, how can such a society have matters that seem out of kilter with this penal system. I think there must be something wrong with the prevailing system in Japan, otherwise there can be no explanation of the number of questions that have already been raised, and probably will continue to be raised with regard to the second section of the list of issues.

520. Mr. Chairman, it seems clear that Japan has legislation which substantially is in concordance with the Covenant. But between the written law and the practical situation, there is a difference. And the information we have heard from various sources shows all the serious problems that do exist with regard to penal and criminal legislation and laws in the matters reflected under section 'roman 2' under the list of issues.

521. For example, Mr. Chairman, torture is prohibited, we read, and ill treatment also. Nonetheless, we have received information repeatedly with specific and practical details about torture carried out by policeman and ill treatment or mistreatment. And this happens in a lot of parts of the world. It happens in my country as well. But there seems to be no measure of investigation or no measure adopted to deal with these successive difficulties which seem to be repeatedly occurring. We've had claims of torture and mistreatment. What have been the results of any investigations entered into? Has there been punishment for those found guilty of such offenses? Have policemen been punished when found guilty of such matters that are in conflict with the Covenant?

522. It seems to me that detainees spend such a long time in the hands of the police, not only 23 days, successively can be extended to a further 23 days. But there are cases (or) instances where you can have people held 130 days successively with renewals of the delay. Well, this is one of the distortions, it seems to me. And given this enormously long interval to have detainees in the hands of the police, they are subjected to all sorts of ill treatment for the purpose of obtaining confessions or simply as a process of investigation. I think that such a highly developed society with so many means available to it, police force should have proper preparation and training so as not to use mistreatment in order to get to the root of the matter in order to discover the truth. You don't have to humiliate or beat people. You do not have to proceed in a manner we have heard about in the complaints received in order to arrive at the right outcome. There are investigative procedures which, I'm sure, would apply particularly in a country such as Japan. And when there are problems arising in particular, because as I say we have had comprehensive complaints.

524. Now Mr. Chairman, there is a publication from the Federation of Jurists called 'Human Rights in Japanese Prisons'. This publication existed and certainly must be available to the Government of Japan. The Federation of Jurists is a very responsible body made up by a legal foundation and that examines problems that relate to jurists. But in this book 'Human Rights in Japanese Prisons', details of a number of situations and ill treatment that really demand measures to be taken by the Japanese Government. The Federation of Jurists, for example, complains of the very food which they say are inhuman. That is the qualification, that's the description given in some prisons. We are told that they are very small portions. I'm sorry very small rooms, ones that are several people there, and there's a lack of medical treatment.

525. They say that the policeman do not allow private consultations of detainees with their lawyers. And they have to be there and hear what is being said. And so, the policeman is present at the interview. Well, I really have to ask whether the government has really appraised itself of the situation and what it intends to do, given these complaints from the Federation of Jurists, which I say complains even of small seats. Just recently some position must have been adopted by Japan to remedy the complaints which such a responsible body has publicly made, that's the Federation of Jurists.

526. There is another problem, Mr. Chairman, that gives rise to questions about the police interrogations, during interrogations or questioning sessions. These go on for long long hours. We are told ten hours a day of questioning of detainees, ten hours a day; and such long periods of questioning go on over periods of weeks. Well obviously this is a psychological and material pressure of enormous scope. And the object is to obtain confessions. I know that the law in Japan gives no value to confessions obtained under such duress. But this is the way that the procedure is going on; so why allow it? I think that if there are proceeding which allow the proceeding to go along in this way, then what can the detainee do to make known what has happened? And how can the judges take this into account and what measures have been implemented by the Japanese legislator to avoid such a continuing or persisting situation?

527. There is another situation, Mr. Chairman, that perhaps might give rise to further confusion. The fact that there are different departments dealing with detainees or inmates. Police on the one hand, police officials on the other; and there seems to be no coordination between the departments as each of them goes to detainees for questioning and to continue the investigative process. Hence, the periods of detention are so long, 23 days. Because several departments are involved and concern themselves with the detainees and seek to investigate the case. Can a single department not be made responsible for taking action and carrying out the investigation? Can no coordination be arranged to avoid these situations? I think that a society, which is so developed as is Japan and which is so deeply cultured as Japan, can adopt the appropriate measures to avoid situations which are really exasperating the situation for detainees.

528. I know, Mr. Chairman, that the delegation has told us that there is no possibility of abolishing the death penalty as yet, and consensus has been sought, and there is no consensus in Japanese society. But I want to say that in these matters of consensus, there are some subjects on which it cannot be achieved. The central government has to take the lead; it has the obligation to guide society in the proper path. And to seek to harmonize the internal position with the international community where there is a current of view, where there is a school of thought which obviously goes towards abolition of the death penalty. Societies still sometimes have the death penalty, but there is a whole tide of opinion calling for the abolition of the death penalty, and it's not just a matter of seeking consensus, but one must promote a broader agreement in one's own society.

529. I'd like to refer (further) to the question of the death penalty. Here there is a problem that should not occur because of the situation prevailing in Japan. Death sentences are carried out in secret. This is what we're told. This information tells us also that it's just only the police know when a detainee is going to be executed. His family doesn't know. Neither is the person sentenced to death aware on which day he will be executed. And so they don't really know; they can't give their last wishes on their inheritance. And they can't tell their family. They don't even know when they are going to be executed. I think that this is a treatment that is also inhuman. It gives me the impression that things like this could be prevented.

530. And another thing, Mr. Chairman, with regard to people sentenced to death; they spend a lot of time in solitary confinement. Particularly those who have been sentenced to death. In other words, they have a sentence of death; they are going to lose their life and then also held in solitary confinement for long periods. Why? Why are they held in solitary confinement when they are going to lose their lives? How can you explain this kind of situation?

531. Not all the accused have legal assistance. The Daiyo-kangoku system that is notorious. When they have people under this system, they're not given legal assistance, and that's contrary to the Covenant. This affects one of the fundamental rights under Article 14 of the Covenant. I think, Mr. Chairman, that Japan will have to review the spirit and the letter of the Covenant. They'll have to look at it again.

532. Not just Article 14, but Articles 6, 7, 10 and Article 22 to which Mr. Dimitrijevic and Mr. Lallah referred with regard to the right to association, which is not fully recognized in Japan. I refer to the railway workers who have been sacked or who are going to be. The right of association is covered by Article 22, and I think this I will say in my final comments that the entire policy and domestic legislation should be reviewed to bring it into line with the Covenant, and this is an obligation under Article 2 to implement fully all the articles of the Covenant. Thank you, sir.

(96) SUPPLEMENTARY QUESTIONS BY MR. MAVROMMATIS (CYPRUS)

533. The Chairman. Thank you, Mr. Prado Vallejo. Mr. Mavrommatis, you have the floor.

534. Mr. Mavrommatis. Thank you very much, Mr. Chairman. I'll try to be as brief as possible. But, Mr. Chairman, we are engaged in a very lively, a very constructive dialogue with, willing to look like the government, in the face of difficulties, so there are bound to be, in the face of difficulties in the county, with its constraints with the Covenant. So if we have to have some effect, there are bound to be certain contradictions or certain underlining of certain facts.

535. And I begin with the death sentence. How on earth could a member of the Committee not speak on the question of the death sentence, and the supreme right. I'll try not to repeat what has been said. But I want to state, I want to state that I very much regret that the moratorium which came into effect in 1967 came to an end. But I'd like to know that since the country is prone to polls, statistics etc., during the time that the moratorium was in effect, was there an increase in really serious crimes that merit the death sentence and will come to that? And how does this compare with the general increase in serious crime in the country?

536. Now Ms Chanet has already mentioned, and if one really looks at the list of offenses punishable with the death sentence has already mentioned this, if I went to look at this, under any stretch of the imagination, this is page 25, many of them could be considered to be serious cases meriting the death sentence, and you cannot come and say that it's because that the reduction of the number is because of the Bar Association; because I understand the Federation of the Bar Association to be in favor of total abolition. So anybody would welcome abolition of certain of them, at least would we deduce from the information that has been given to us. But where there is no premeditation to take away life, and in cases like destruction by explosives, mind you I do take it and I stand to be corrected; that this is not mandatory, death is not mandatory; it is simply the maximum with a discretion of the court to impose any other lessor sentence, probably serve the minimum. But there is considerable room for reduction of these maximums.

537. And if the Federation of Bar Associations is the obstacle, why was it not obstacle in doing away with your Daiyo-kangogku which they want to be abolished, and to which I'm coming? It was mentioned the delays. There is a discrepancy between the Federation and Amnesty International. One of them mentions 25 years on death row and the other 10,400 days. I'm not very good at figures but I think it's well over 30 years. So if there is any discretion, it is in respect of a colossal delay on death row. There comes a time when the mere fact that they are staying on death row is per se cruel. Its per se. There comes a time in 30 years, 30 years. It's..., I'm sorry I cannot understand it.

538. And as Mr. Prado Vallejo mentioned, the secrecy. Don't families have the right, if they're religious, to pray on the night that man takes away the life of another man? Or if they are not religious, (right) to give some thought to him or to meditate. So I can not see how it is that these people are not informed. It is certainly the (matter) of the family; is he going to be executed tonight or tomorrow or the day after tomorrow or in the next of the 10,400 days that he is on death row? So these matters should be regularized, and regularized the sooner they should be.

539. Now I already mentioned..., it was already mentioned by all these police custody. What I want to add is this: is it true what is alleged, what the information before us, that any time that a judge orders that the suspect be kept in proper prisons, the prosecution appeals against it, or very often they appeal against it? And if this is so, why should they appeal, why should they appeal? Is (it) because it obstructs the continuous cross examination of a witness. I cannot, I cannot see.

540. And this, coupled with the fact that Japan is probably the only country that is regulating by law, or through subsidiary legislation, the right to arrange the visits of counsel. Yes, there are countries which do use every trick by moving around prisoners to obstruct counsel from visiting them. But nobody admits it in writing in the law that you have to apply for permission. Maybe, it's only three per cent, it's three per cent; too much. We find that the right of counsel to see somebody, his client, during all reasonable hours is one of the ways to reducing incidence of torture or undue treatment. So, what is the reason why it was felt necessary to regulate the right of counsel to see his own client?

541. Now on, I'll move to Articles 17 and 19, Mr. Chairman. And I have a couple of questions on criminal defamation or criminal libel. Now, you'll find that most of the modern systems of law are trying to do away with criminal libel as a criminal offense. Now, you have a series of offenses of pertaining to criminal libel, and there is always the risk that this is an unnecessary gap to freedom of expression. Now, you have not only a person defaming and insulting another, but defaming a deaf person even from olden times, defaming in a civil suit, defaming all persons was not sustainable because it was an act of (expression) and (lack) the ties with the person.

542. How can you have these, how can you have these defaming?; I know the respect to the dead. Then I'd like to know, because it is only mentioned defamation is based on a falsehood, what are the defenses that are open to them? Is justification a defense, a complete answer to the criminal charge, proving truth of what you are doing. (This is the question #) 1. And, number 2 is criminal intent to defame and not merely to pass a comment on a matter; let's say of public, political or other interest. Is that also..., is it a necessary component part that there should be criminal intent to defame? Then, if it's not enough; that defamation generally it's an offense; then you say to injure the credit of another, how? And what do we mean by injuring the credit of a person? I mean the saying that he hasn't paid off his debts or what? How? What, why is it really? Try and explain to us.

543. Then, on Article 19, if you go back, and I'm sorry that you have to refer back to your public welfare. to your public welfare, I'm sorry. Now you refer in paragraph 15 of your report to the Covenant which says in sub-paragraph 3, which states as you say that if laws are provided, the restriction of the exercise of the rights of freedom is permissible. But it is permissible only on the grounds which are mentioned there, and they are respect for the rights and traditions of others, protection of national security and public order or public health or morals. If public welfare goes anywhere beyond that, then it's contrary to the Covenant. And it cannot be used, it cannot be used to restrict further this very importance, this vital right on which after all democracy depends.

544. And another one. In respect of one type of the mass media, the broadcasting, which I presume it's also applicable to television, you say that what they publish, because of their wide circulation, should be politically fair. Now who judges if something is politically fair? Do eventually degenerate to everything which is against the government in power is politically unfair and everything which is against the opposition is politically fair. Who decides? Who is doing the vetting or the censorship to decide on that matters? And then it seems, and you stressed it, that the only things you do not restrict is inward thoughts. I do not know how they can be restricted, by the way. How can one restrict another's inward thoughts? These are left free. But these are left free because I don't think they can be restricted.

545. Finally, Chairman, I think I'll not repeat about certain tendency against unionizing, and against trade unions which was mentioned by firstly Mr. Dimitrijevic and then the three speakers that followed him, and the delay in remedies with particular reference to the privatization of the railways and the still pending cases with discrimination in respect of trade union, active trade unionists. Thank-you, Mr. Chairman.

(97) SUPPLEMENTARY QUESTIONS BY MS EVATT (AUSTRALIA)

546. The Chairman. Thank you, Mr. Mavrommatis. I now give the floor to Mrs. Evatt.

547. Ms Evatt. Thank you, Chairman. Chairman, I'll try to be brief in view of the time. If I could, first of all, thank Mr. Kunikata for the important information given to us today in response to the written questions.

548. Referring to Article 6, I'd like to comment that the rather small number of executions which have been carried out in the last few years does suggest to me that the death penalty is now playing very little part in the criminal justice system, either as a punishment or deterrent, and that it's clearly time to think about total abolition and ratification of the Second Optional Protocol. And here too, as Mr. Prado Vallejo has already mentioned, it is a question of the government playing a leadership role in regard to public opinion towards that standard.

549. I have to say that for me, too, the death penalty can't be disassociated in my mind with the question of fair trial, as we have been informed of several convictions and sentences which were later set aside on that ground.

550. Mr. Chairman, there are many issues in chapter two to cause concern to this Committee. And the treatment of detainees is a major issue, and other members have referred to specific instances which include the treatment of people who have been arrested and not yet charged; body searches and so on; the treatment of people held in police custody and those who are subjected to punishments after conviction. In all those cases there are matters of concern. But the particular focus of our attention has been the Daiyo-kangoku.

551. And it seems to me that if proper procedures, the procedures required by the Covenant, are not followed from the very beginning, the validity of the fair trial process will be put into question. And there are matters of serious concern. People can be held for up to 23 days without charge and without bail. And although we're told that the average is less, the period is still too long. And in this period, interrogation will take place without a lawyer, and without any electronic recording or safeguard of any kind.

552. We're told that there is a high rate of conviction and that confessions are an important factor in this. This makes it absolutely essential to ensure that there are safeguards, and the document we are given today agrees that effective measures should be taken to prevent the coerced confession of suspects in detention, and to protect their human rights. And the kind of measures that are envisaged to comply with the Covenant would be to limit the detention period to that permitted to enable lawyers to be present at the interrogation, to ensure preferably that there is taping, video taping, and there is technology for this.

553. It is really unacceptable that these long periods of detention occur without bail. In any case, in no cases allowed in that period and that certainly does not comply with the intention of Article 9(3). But even after indictment, we hear that bail is an exception; that only 23 per cent were granted bail in 1988, and that the amount which must be deposited for bail has been increased considerable over the years. And I would ask for confirmation of those figures for the granting of bail, for the current figures.

554. Others have mentioned this, Mr. Lallah has mentioned this that an essential element of the fair trial is that the accused and his legal counsel have access to all necessary documents and evidence, including the file in possession of the prosecution. Now, there are laws that provide for this, but we are informed that defense must ask for specific documentation of which the defense may already have knowledge. And that's not good enough because the defense may not know of all the material in possession of the prosecution.

555. And I would ask that is the case that the prosecution need not disclose evidence in its possession that it does not intend to use and thus frustrate the defense from preparing its case. It seems to me that mistrial can occur when evidence of value to the defense is not disclosed because there is no specific request for it due to lack of knowledge.

556. Mr. Lallah has already referred to the ways in which the prosecutor's file can be used in court, and the propensity to introduce hearsay evidence in this way, and I join in his comments on that matter.

557. They are part of the whole story that raises in my mind many doubts about the compatibility of the criminal justice system with the Covenant. And I stress once again the wholeness of all these issues, they all reflect upon each other.

RECORD OF THE 1280TH MEETING

Held at the Palais des Nations, Geneva, on Thursday, 28 October 1993, at 3:00p.m.
Chairman: Mr. Dimitrijevic
The Meeting was called to order at 3:00p.m.

(98) REOPENING OF THE MEETING--LAST SESSION

564. The Chairman. I would now like to proceed with the examination of the Third Periodic Report of Japan. We are now entertaining the members of the Committee who wanted to put additional questions under chapters two and three of the list of issues. I have still..., in addition to Ms. Evatt who has to finish her statement, I have four speakers to go. Then we'll have to allow some time to the delegation to reply, and we have to give some time to the members to make their concluding observations. You are aware that we are supposed to finish today before six o'clock. Therefore, I earnestly appeal to all speakers to be as succinct as possible, and especially not to deal with matters that have been dealt already by other speakers, because the delegation of Japan is noting (that) all the questions and the answers will be provided anyhow. Excuse me for this injunction; but we have this as a very important examination, and our time is limited, and we should use it to the best effects. I now give the floor to Ms Evatt.

(99) CONTINUATION OF SUPPLEMENTARY QUESTIONS BY MS EVATT (AUSTRALIA)

565. Ms. Evatt. Well, thank you, Chairman, and I would be very brief to finish the points that I was making earlier under Article 19. Mr. Chairman, I was referring to a case which is referred in the appendix to the report at page 50 of the English version. It is the second case there, where it was ruled apparently in 1951 that the disciplinary dismissal of an employee was lawful where the employee had been fired for publicizing without any firm evidence that the company had taken unfair and unjust measures in reshuffling the personnel.

566. And I was commenting that freedom of speech must include the freedom to make criticisms and to say unpopular things. But what I really wanted to ask about this case was whether the result of it means that the public welfare provision in the Constitution can justify action of this kind, which might be thought to restrict freedom of speech. And I would like to ask in that connection also, bearing in mind that Article 19 allows certain restrictions provided by law, I'd like to ask in what way the law itself supported this particular restriction.

567. There is another case referred to in paragraph 14 of the report about taking notes in court. And I want to ask whether that case means that no one can ever take notes in court, or was it simply a ruling made in the circumstances of the case, where the order, public order, might have been thought to required it in a particular situation, because as mentioned the freedom of the press and the freedom to report on what happens in the courts is a very central element in the democratic process.

568. And the final point that I wanted to make on Article 19 was about the practice, the administrative practice, of the screening school books and the exclusion from school books of certain parts of Japanese history. I'd like to ask how that is thought to be compatible with the Covenant, and I would very much stress the point that the truth itself is a very important element if we are to have understanding and forgiveness of past events. I thank you, Chairman.

569. The Chairman. Thank you, Ms Evatt. The next speaker is Mr. Sadi.

(100) SUPPLEMENTARY QUESTIONS BY MR. SADI (JORDAN)

570. Mr. Sadi. Chairman, I'll be brief because I don't wish to, as you said, cover territory already well covered. And I would not like to add to the agony of Mr. Kunikata. I think he has enough on his hands already. But let me begin by making an observation first on an issue that is obviously..., everybody was concerned about..., and that is the death penalty. Mr. Mavrommatis this morning asked what brought an end to the fact of the moratorium on executions in 1989. And I would like to go one step further by asking what brought on the moratorium in the first place. The reason I would like to take an additional step (is) in order to understand or comprehend the nature of the national debate on the issue and try to comprehend the swings in opinion on the death penalty. I mean we have it once and then we don't have it, and then we reintroduce it. I think it will be interesting from our point of view to understand what brought about the moratorium and in addition to what brought an end to it. This way we might be in a better position to understand the issue.

571. Now, I understand that in Japan there has been considerable efforts to reduce the number of crimes for which the death penalty may be invoked and applied. I think this is very encouraging and I understand that you had difficulty as you told us this morning. My question is the following: Would you be in a position as the Government to use the jurisprudence of this committee as justification for pushing forward with the original plan to reduce the number of crimes for which the death penalty would be applied? In other words, that would be as it were reason or, whatever you want to call it, justification, (or) part of your public policy to the Bar Association for example, or the legislature or whatever, that the Committee, which is the main international organ mandated to interpret the Covenant, views the death penalty in such a way. So I was thinking..., I was wondering whether this could help the cause or the government in its effort to reduce the number of crimes for which the death penalty is applied.

572. Now, I would like to go into a completely different terrain, Mr. Chairman. In order to do that, I started examining the criminal laws of Japan. And I would like to just pick (up) samples, but, this is not an exhaustive list, but only samples to show that indeed there are problems in the Penal Code of Japan as far as the Covenant is concerned, and I would like to refer to some of them only to just give you an idea. For example, I'm reading the 'Criminal Justice Legislation of Japan'. I'm reading Article 92, for example, where you say (that) "the person, who for the purpose of insulting a foreign state, damages or destroys or removes or defiles the national flag of another, or other national emblem of such state, shall be punished with imprisonment and forced labor for no more than two years or a fine of not more than two hundred yen, provided", this is the catch, "provided that the crime shall be dealt with only on the request of the government of such state". Now, don't you..., do you accept that, with this proviso, you have an element of discrimination in the administration of criminal justice in Japan. In other words, when a state requests you prosecute, and when the state is silent you don't prosecute. Yet, two individuals could be doing the same kind of act, one would be pursued and prosecuted and one would not. I see personally an element of discrimination in this procedure. I'm not personally against punishing a person who would damage an emblem of another state or whatever, but the element of discrimination I found a little bit troublesome.

573. Then, I go to Article 93, where it's stipulated that "a person who prepares or plots to wage war privately upon a foreign state shall be punished". How can a person wage war privately upon a foreign state? But unless there is a problem in the translation, and I am willing to entertain that possibility, I do not comprehend how can a person be punished for waging a private war on another state. I think that this (is) something that needs to be clarified.

574. Then, I go on to Article 133. This is something that has to do with Article 17 of the Covenant. You stipulated that "a person who without good reason opens a sealed correspondence shall be punished with imprisonment at forced labor". Now, how do you, how can you construe the words "without good reason", and how would you be willing to use such criteria against the backdrop of Article 17. It would seem to me that a person need not, whether he has a good reason or no good reason, cannot open sealed correspondence unless there is a court order for example, unless there is a legal reason. So, the element of "without good reason" or "with good reason" to me is troublesome, and again it could be a problem of translation that you can redress.

575. Then, I go on to Article 175 where it states that "a person who distributes or sells an obscene writing, picture or other object and so on and so forth will be punished". Now, my question is in view of Article 19 of the Covenant. Who will determine what..., Is there a board, a censorship board, or is there a governmental board that will determine whether a film or writing or a picture is obscene or not; and again this is relevant in view of Article 19.

576. In Article 177 there is mention of rape. Of course under the chapters we are discussing, discussing criminal jurisprudence, criminal prosecution and so on and so forth, it reads in a sort of strange way, and the definition of rape, you say "a person who through violence or intimidation has sexual intercourse with a female person of not less than thirteen years of age". What is, what is the background of this number 'thirteen'? Where did it come from? Why would it not be again rape under similar conditions if not less than twelve, or not less than fourteen, or not less than fifteen? And there must be something to it that I cannot understand. And then the punishment is only two years. If somebody rapes a thirteen year old child and gets a sentence, a lenient sentence of two years, how can you justify that against the background of the Covenant which calls on us to protect children. I think this is something perhaps the translation have problems, with the translation.

577. Then, there is a whole series of articles with gambling which I find, I don't want to go into them, but again they seem to be a little bit difficult for my estimation.

578. Then, Article 230 on defamation. This is also relevant for the chapters we are discussing. And you stated there "a person who defames another by publicly alleging facts shall, regardless of whether such facts are true or false, shall be punished". I find this a bit difficult to believe that this is an accurate translation, because defamation is based on falsehood. And it's stated here that, "irrespective whether the allegations are true or false", you would still have a case for defamation. And this would again in my estimation be contrary to the Covenant.

579. Mr. Chairman, the other questions I had in mind have already been covered, and I'm heeding your request that we don't repeat questions already been asked. And so I will confine myself to these questions, and I thank again Mr. Kunikata for his answers this morning, and I'm sure we will hear equally good answers to some of our observations for this afternoon. Thank you, sir.

(101) SUPPLEMENTARY QUESTIONS BY MR. CELLI (VENEZUELA)

580. Chairman. Thank you, Mr. Sadi. I give the floor to Mr. Bruni Celli.

581. Mr. Celli. Thank you, sir. It's a privilege for me to speak almost the last, and I don't want to waste the time of my colleagues or the distinguished delegate of Japan, so I am going to reduce my comments and questions to just one of the issues that has been analyzed by other colleagues. But there is one aspect that I want to deal with that hasn't perhaps been dealt on by them. First, Mr. Kunikata told us that since 1974, the government has tried to reduce from 17 to eight the crimes for which the death penalty may be imposed. And he said, and my colleagues have said this, that it hasn't been possible because of the opposition of the Federation of Lawyers (Japan Federation of Bar Associations). So, what were the reasons put forward by that Federation of Associations of Lawyers, because here I have a publication by them, April 1993, it's dated, in which it refers to the death penalty, and rather denounces the serious irregularities of certain trials that have led to the death penalty. In the case of Mr. Menda, the case of Mr. Taniguchi, Saito, Akabori and so on and so forth.

582. And in this, on the same subject, I see, for example, that the clause eight for the death penalty is 'manslaughter caused by the endangerment of traffic'. Now what does this mean? Manslaughter, what we call "culpable homicide", that is, 'harm caused by carelessness, imprudence and non observance of the rules', this excludes intention in fact. And so, such a crime, because there is not an intention behind it, calls for a much lesser penalty.

583. And we're here connected with Article 6 of the Covenant, and it says for the most serious crimes that the death penalty can be imposed. And it says that this penalty will only be imposed in very exceptional circumstances because the crimes are very serious. Now, I ask whether the seriousness of the crime is measured only by the results in Japanese penal law. Isn't the intention, the will of the person involved in the consideration of a crime?

584. Then, with regard to number 10, which is murder; this is a crime that is often qualified in many different ways than maybe extenuating circumstances that take away the responsibility. Or maybe, there may be aggravating circumstances.

585. And I would like the delegation of Japan to explain to us whether the death penalty may be imposed, or is imposed on all forms of murder as we have in paragraph 110 of the report.

586. And I forgot on the way to mention another problem. With regard to the traffic, endangerment of traffic, this is the most common thing that may occur..., endangering traffic if the translation into Spanish is correct, as we have it here in the report. Then, it is something that is rather difficult to understand.

587. Then, there's (number) 16, 'manslaughter caused by seizure of aircraft'. Once again, here manslaughter is not premeditated; there is no intention to commit the crime. And even when manslaughter in such case may be the result of a premeditated action, that is, hijacking of an air plane, there is something that we need to link in here. Normally, I wouldn't say in all cases, but in many cases these crimes of air hijacking have some link with political events. Even though nothing is said in the Covenant about non-imposition of the death penalty for political related crimes, nevertheless this is part of what we might called the doctrine in the area of human rights protection throughout the world. There are various conventions on the subject, and in general terms those who have considered this problem of the death penalty think along these lines. So, I feel that on this subject, I would be glad if the distinguished delegation of Japan would tell us whether really this kind of crime in practice in Japan is one on which the death penalty is imposed, if, and when there are air hijackings, this aspect of a possible political connection, is it taken into account? Thank you.

(102) SUPPLEMENTARY QUESTIONS BY MR. AGUILAR (COSTA RICA)

588. The Chairman. Thank you, Mr. Bruni Celli. I will give the floor to Mr. Aguilar.

589. Mr. Aguilar. Thank you, Mr. Chairman. In view of the time, we have to be as quick as possible. I also have problems with regard to Article 6 of the Covenant. That is the one that is of the most concern to me, and perhaps I shall limit myself to this in view of the time. The catalogue of offenses, the list of offenses as Mr. Bruni Celli has just said, is a very long one, and there are various cases of manslaughter. He's already described what this means. Manslaughter is punished with the death penalty. This is a matter for concern. But there are other offenses in which it would appear there are no victims, but despite that, a person can be condemned to death apparently. Now, I would like further explanation of this, because it would appear to go further than what would seem to be acceptable.

590. 'Damage to inhabited structure by inundation'; so, a house is damaged by flooding, and a person can be executed for that? Sincerely I really don't understand how someone can be condemned to death for that.

591. However, I would like to refer to something a little different in this regard, and that is detention in 'Daiyo-kangoku', with regard to the death penalty, (or) in connection with the death penalty. And I would like to express my concerns about the statement by Mr. Kunikata that the death penalty has not been abolished for certain offenses because of opposition from the Association of Lawyers, the Federation of Associations of Lawyers. I'll give this book which says the opposite to Mr. Kunikata, later. A lot of people in this kind of detention, which is really unbearable because all the rights of the accused are violated, rights under Article 7, it's inhuman treatment; and we can see how people are subjected to torture and other inhuman and cruel treatment with a view to extracting a confession. But in various cases it is something to take more serious..., and it's that these confessions have been obtained; and they've led to a death penalty, a death sentence, and the person has in fact been executed.

592. So, this means that I would like to ask a question, and it is the following: Mr. Kunikata spoke to us about the means available to a person for an appeal. And this is a procedure that is extremely lengthy and very complicated, so a normal person could probably not make use of this system, and he wouldn't be allowed to go directly to the courts. He has to act through the prosecutors. And he also told us that the prosecutors did not accept in all cases, to take the police or the people who had taken the action, to take them to court. And we come back to the question of how to prevent abuse, in order to prevent abuse of the system. And he spoke about the fact that it was to prevent abuse, and I'm using his words here, "disgraceful affairs should not be used". And I think that this is a euphemism for human rights violations.

593. 'Disgraceful affairs against the police'. And this is a matter that concerns me. Firstly, because in Daiyo-kangoku the prosecutors and the police interrogate the accused in a totally free way. Whereas the defense lawyers cannot. The police and the prosecutors work together, so it's logical that the prosecutor uses the person being remanded in custody by the police. He's not going to act in the same way with regard to the accused. Why? Because they form one party in the dispute, the police and the prosecutor. And so, there is inequality between the parties here. One of the parties essentially has his rights diminished and the other party is the judge and the jury at the same time. In the cases in which there were violations of due process, and this has led to endangering the life of a person with the death penalty, threat of the death penalty, this is a violation of Article 6, and in this case it is extremely serious.

594. And if we see the list of crimes for which the death sentence may be used, and this includes things like manslaughter, then I would like to know whether a prosecutor or a policeman who has tortured or who has forced a confession in some way which has subsequently led to the death penalty; I'd like to know whether they have been taken to court at least for attempted manslaughter, as when they obtained the confession, and this confession was used in a trial knowing that the person's life would be endangered since it could lead to the death sentence, if the policeman could ultimately be, or the prosecutor who accepted the confession, if he could be brought before the court as responsible or an accomplice of a crime of murder, if knowingly he tortured or forced a confession from someone who could be condemned to death by making that confession.

595. That was what I wanted to say, and I'd like to conclude in order to save time by joining my colleagues who asked questions particularly with regard to Article 17, namely the right to privacy, and which apparently there isn't really a right to privacy, and Article 22, the right to association. For example, what you were saying this morning, Mr. Chairman, about trade unions of railway workers which seem to be persecuted, and Article 25 under which people have apparently been imprisoned for having invited people who went to a political rally outside working hours. Now, in addition to raising questions of discrimination, this also is a violation of the exercise of Article 25. Thank you.

(103) SUPPLEMENTARY QUESTIONS BY MR. NDIAYE (SENEGAL)

596. The. Chairman. Thank you, Mr. Aguilar. I call on Mr. Ndiaye.

597. Mr. Ndiaye. Thank you, Mr. Chairman. Mr. Chairman, I am going to be very brief indeed. I'd just like to ask the delegation of Japan to give me further clarification on paragraphs 202, 203 and 204. I'd like to know whether there is a ceiling on expenditure for electoral campaigns, and whether the state covers some of these expenditures, and if so, what proportion.

598. I would like in conclusion to ask whether Japan has a system of trade union federations, because here we have a figure which seems to me to be rather high. They speak about 720,202 local unions. Now I don't know very well what that corresponds to. Are they company unions or are they decentralized collectivity unions? I'd like to know exactly what these correspond to and whether the system of federations and confederations exists in Japan. Thank you.

(104) SUPPLEMENTARY QUESTIONS BY MR. POCAR (ITALY)

599. The Chairman. Thank you, Mr. Ndiaye. Now the last speaker on my list is Mr. Pocar.

600. Mr. Pocar. I thank you, Mr. Chairman. I would like me to thank Mr. Kunikata for the answers given this morning. And this together given with the questions raised by my colleagues up to now reduce substantially the list of the problems that I wanted to raise. First, let me associate myself with the questions that have been raised by colleagues, especially as they concern various issues concerning Article 17, Article 6, the death penalty and others. I will not go back again to these questions. I would like also to associate myself with the questions concerning Article 9.

601. But I would like to add some considerations on why I think that this system of detention of accused persons should be changed to comply with the provisions of the covenant, especially with Article 9. That Article declares in paragraph 3 that "anyone arrested shall be brought promptly before a judge". And the purpose of this provision is not only to verify the verification by a judge that the arrest is legal, is not arbitrary and that therefore the person should be released, but also to put the arrested person under judicial guarantee, and to prevent him from being exposed to arbitrary treatment by the police. And we all know in all the countries police tend to behave arbitrarily. Notwithstanding the education and training that may be given to the police officers in many countries, and I do note with appreciation of the efforts made by the government of Japan in this respect.

602. But the point is that the arrested person after having been brought before a judge cannot, later on, receive the same treatment as before being brought before the judge. In particular he or she is entitled to a treatment with judicial guarantee that is under the supervision of a judge. That didn't happen before he is being brought before the judge. So, if the accused, as it happens in Japan, is sent back to a police station for a detention, and is therefore is under the sole control of the police, according to what normally happens following the information we have received, he may be exposed to ill treatment. That is precisely what Article 93 wants to, (and) is intended to prevent.

603. And this has all the necessary bad negative consequences that we heard this morning that..., and we see from the information received, and that arrested persons may be forced to confess, not necessarily under clear cut acts of torture by police officers, but simply because of the quality of the treatment that is made to suspects who do not confess as compared with those who confess. And I would stress that this is even more serious and more serious issues when we consider that detention in police station is not prolonged only until indictment, but may go on for a longer term after indictment until the trial. So, it's really something that goes against the guarantee provided for by the Covenant and is something that should be removed.

604. I noticed... Ms. Higgins has already referred to these issues. I noticed the arguments made by the government to justify why the system is not changed, and after..., among them also the expenses and the difficulty to find places for new detention houses. But, I think that both these arguments shouldn't be sufficient to impede revision of the system. I visited Japan. I can't imagine that one cannot find, although the country is overcrowded, the territory is overcrowded, to find places to build detention house or to transform certain buildings into detention houses. And the problem of expenses of course, it is maybe a problem.

605. But, as one of my colleagues has pointed out, it shouldn't be a big or a serious problem for a big country as Japan is. And in any case it is obvious that human rights protection requires a cost. And this cost should be supported when the provisions of the Covenants require. Well these were my comments, and I would like really to hear if there are any other justifications for not changing a system that was supposed, when it was initiated, to be temporary. But that was more than eighty years ago. I thank you, Mr. Chairman.

(105) REPLY TO ADDITIONAL QUESTIONS BY THE JAPANESE DELEGATION

606. The Chairman. Thank you, Mr. Pocar. That concludes the list of speakers who put additional questions under chapters two and three. I now give the floor to the delegation of Japan to reply to these additional questions. And I should also like to draw their attention to the fact that we should economize with time, that there should be time for the members to give their general observations on the whole endeavor. You have the floor.

607. Mr. Kunikata. Ah well, thank you very much, Mr. Chairman, first of all, and thank you very much for the distinguished members of this Committee for their questions. And, after having streamlined a series of, a large number of questions, first of all, I'll take the floor in order to reply to some of them, and thereafter I would like to ask other colleagues here in this room to address the remaining questions. This time, please let me allow to reply to your questions at random basis.

(106) POLITICAL NEUTRALITY OF BROADCASTING

608. First of all, there was a question concerning the broadcasting law in connection with who will decide the political neutrality of broadcasting. We checked the broadcasting law, and according to this law it has the very self disciplinary nature, and it has no so-called criminal sanction provisions. And, in order to ensure the political neutrality of broadcast, every broadcasting company is requested to establish an internal review committee which will control the content of the broadcast.

(107) TREATMENT OF PERSONS WITH MENTAL ILLNESS

609. There was a request to give further information concerning the treatment of persons with mental illness, especially the law of the psychiatric review board. The answer is as follows. The psychiatric review board is created to conduct for the purpose of securing the human rights of the persons with mental illness, and it will examine the need of the continued hospitalization of the persons with mental illness and the proprietary of treatment in mental institutions.

610. To meet the other objectives of the psychiatric review board, the members of the board are carefully selected from the people of the following three categories: The first one is those who have knowledge and experience in medical care; Secondly, those who have knowledge and experience in related laws; and thirdly and finally, those who have knowledge and experience in other fields. When an examination of an individual case is made, three members of the first category, one of the second and one of the third are appointed.

611. The psychiatric review board is required to examine periodic reports of the condition of patients who are involuntarily hospitalized, and as well as all requests from in-patients for discharge from the hospital. The prefecture governor should take the prescribed step, such as an order for release from hospital on the basis of the outcome of the board's examination. And the examination will be carried out independently.

612. And there was also a question; the number of the people who were discharged from the hospital on the basis of the decision of this psychiatric review board. In 1989, the number was 267; in 1990, 131; in 1991 the number was 174. After the examination of all requests or all relevant reports concerning the involuntarily hospitalized persons with mental illness.

(108) POLITICAL FUND CONTROL LAW

613. There was also a question in connection with the paragraphs 203 and 204 of our report whether there is a ceiling of flow of money for political activities. The answer is yes. Namely, we have a law which controls the flow of money for political activities in order to ensure the fairness and 'impairness' of the political activities, so that the sound development of democracy will be secured.

614. According to this law, every money transaction more than fifty-thousand yen should be reported to the relevant authorities. And there is also a ceiling of the amount of money. For example, as far as individual is concerned, the ceiling is 20 million yen. And as for the companies (and) corporations are concerned, individually 7.5 million yen, 15 million yen and 30 million yen according to the size of capitals of those companies or corporates.

(109) NATIONAL FEDERATION OF TRADE UNIONS

615. And there was also a question concerning whether the trade unions federations is existing in Japan. The answer is yes. And in Japan the trade unions are organized on the company or branch basis, contrary to the 'category of industry basis' like in the United States. And this is the reason why the number of trade unions in Japan are so large as described in our report.

(110) DISMISSAL OF WORKERS

616. The next one is the program of the dismissal of workers or employees in connection with the freedom of inner thought. On this issue, I have to reiterate (and) repeat what I said in the morning session: namely, the Labor Standards Law strictly prohibits any discrimination in terms of the employees or workers, regardless of the nationality, creed or social status. And it is the violation of this provision to dismiss a worker on the grounds that he believes in a specific thought, (or) on the ground that he has a specific creed. So it is a violation of this law and if such a case proved to be established, then the labor standards inspection bodies will demand the employers to rectify the situation.

617. And the Trade Union Law of Japan stipulates in Article 7 Paragraph 1; it is also prohibited to treat workers or employees unfavorably on the ground that he is a member of the trade union. If a complaint is made in this connection, the local Labor Relations Commission will investigate the matter, and if the complaint is well found, well grounded, then the appropriate order for the remedy will be issued. And if the relevant worker is not satisfied with the decision of the local Labor Relations Commission, then he is able to submit a complaint further to the central Labor Relations Commission. And in addition to that, he is also able to file a suit to the court to the effect that the court will declare the dismissal as null.

(111) DISMISSAL OF EMPLOYEES OF THE FORMER JAPANESE NATIONAL RAILWAYS

618. There was also a question the treatment of workers in connection with the privatization of the former Japanese National Railways. During the course of the privatization of the former Japanese National Railways, their statutory framework was established for enabling the re-employment of the former National Railways workers to the possible maximum extent. Within this legal framework, the Government of Japan has made the utmost efforts to procure new jobs for the former workers. The Government of Japan believe(s) that equal and enough opportunity was guaranteed for all those who had the willingness to get new jobs. I'd like to further emphasize (that) the complaints raised by the former workers are now under careful consideration by the central Labor Relations Commission, which is the administrative tribunal for labor affairs, independent from the government.

(112) INTERPRETATION OR TRANSLATION CONCERNING PARAGRAPHS OF THE PENAL CODE

619. There was also a question concerning the interpretation or translation of a series of paragraphs of the Penal Code. But, in order to..., we are afraid that it will take a long time to explain the interpretation or the meaning the specific words and so on and so on. Therefore, if it is acceptable to you, we would like to reply to this question in writing afterwards.

(113) THE VIENNA CONVENTION ON THE LAW OF TREATIES

620. Now, with your permission, Mr. Chairman, I would like to give the floor to my colleague, Mr. Gotoh, who will reply to the question concerning the Vienna Convention on the Law of Treaties. Thank you.

621. The Chairman. Mr. Gotoh, you have the floor.

622. Mr. Gotoh. Thank you, Mr. Chairman. I will speak in Japanese. In Japan, concerning the relationship between the Constitution and Treaty, it is commonly taken that the Constitution is superior to the treaty. This may..., the question was raised that this may violate the Vienna Treaty of Laws, Vienna Law of Treaties. I'd like to answer this question. We respect and observe the Law of Treaties, and we never use the Constitution in a way that violates this Treaty. And, in the future, we will not use the Constitution in such a way. Therefore, there is no violation of the Articles 26 and 27 of the Vienna (Convention of the) Law of Treaties. That's all. Thank you, Mr. Chairman.

623. Mr. Kunikata. Thank you for the opportunity of speaking again. I would like to call on Mr. Watanabe and Mr. Ono and Mr. Nagai in this order, in order to reply to the questions concerning the so-called 'substitution prison' (Daiyo kangoku) system. And before giving him the floor, frankly speaking we were rather shocked by the fact that there are a misunderstanding among the distinguished members of this Committee concerning the fundamental factors of the Japanese system. Having said that, with your permission, I'd like to call Mr. Watanabe to take the floor.

(114) DETENTION BEFORE INDICTMENT, AND THE ORDER OF JUDGE

624. The Chairman. Mr. Watanabe, you have the floor.

625. Mr. Watanabe. Thank you very much, gentlemen. I will speak in Japanese. As was mentioned by Mr. Kunikata, I would like to give an explanation on the criminal procedures, taking the reports and questions into the consideration and also taking into consideration that the explanation on this point has not been sufficient so far. Taking this opportunity, I'd like to touch upon some of the important points so that we will be able to provide correct information to you. I hope this information will contribute to a more productive measures. In addition, in providing this information, in order to help your understanding, I might quote some of the systems abroad. However, this quotation is not done in order to criticize that aspect of foreign systems.

626. First of all, please refer to the issue (pamphlets) of the 'substitute prison systems' which have been delivered to you today. Every country has a system of physically detaining suspects prior to prosecution. But, no one can deny that such physical detention in itself restricts their freedom and human rights in some way or other. Japan has paid the most careful attention to this point in designing of its current system, being very cautious in the detaining of suspects. First of all, Japan has a principle that never proves an arrest without a warrant, as for example, it's recognized in the Police and Criminal Evidence Act 1984 of the United Kingdom, or in the non-judicial detention by the police ('garde-a-vue') such as in France.626.2 Instead, Japan observes a principle of arrest with warrant under which no suspect is arrested without a warrant issued by a judge. We are very strict in at this point. And this principle of requiring a warrant also applies to the detention of the suspect. In order to detain him, a double check, quasi-judicial and judicial, must be carried out by a prosecutor and a judge.

627. Next, indictment in Japan basically corresponds to a decision by a judge in France to put a case to trial by the court of adjudication. The period of pre-indictment detention is limited to a maximum of 23 days. I think this strict limitation must be emphasized. That is, any suspect arrested by the police must be sent to a public prosecutor within 48 hours unless he is released during that period. And he must be sent together with the records of the case. Then the prosecutor examines the records, and after hearing the explanation of the suspect, applies to a judge for the suspect's detention only when he believes such detention is necessary for a jurist stand point.

628. I will repeat it again, paraphrase it again. That is: any suspect arrested by the police must be sent to a public prosecutor within 48 hours together with the records of the case unless he is released during that period. Then the prosecutor examine the records, and after hearing the explanation of the suspect, applies to a judge for the suspect's detention only when he believes such a detention is a necessary from a jurist's stand point. This judgment of the prosecutor must be made within 24 hours of the suspect's referral. Upon receiving an application for detention, the judge issues an order of detention if he believes the application is well founded after hearing the explanation of the suspect. But the period of detention is up to ten days. The extension of a detention may be approved by a judge only for a maximum of another ten days upon application by the prosecutor. Criminal investigations during the period of pre-indictment detention in Japan are quite similar to the investigations made during the period in the countries which ad(o)pt that system.

629. But the period of the physical restraint of a suspect before indictment is limited to a maximum of 23 days. And this period is quite short compared to the period of detention at the stage in France. In this (French) case there is a maximum (detention) of two years for a minor offense and an unlimited period for felonies. So, this (23 days) is a strict limitation imposed on our investigating agencies. But, considering that physical restraint in itself is the most severe burden on a suspect, Japan limits the maximum period of pre indictment detention to 23 days to fully protect the suspect's human rights by an established system. This is the main point that I would like to convey.

630. However, I'd like to point out some of the factual information, correct information. In arrest, unless the criminal was arrested on the spot, we have to have arrest warrant issued by a judge. It's a must. In Article 210 of the Code of Criminal Procedures, it stipulates about the urgent arrest; except for such a case, we have to have a permission beforehand. Then, we are quite cautious in issuing arrest warrants. If there is no need to detain the person, he will be released. Application for detention by prosecutors: as for this application, judge has to examine the reasons and the necessity of such detention as well as the place of detention. After such examination the person will be detained either at a detention house or a substitute prison. Police does not have unlimited authority in carrying out this type of detention. This detention will only be carried out by an order from a judge. In this sense, I would like to emphasize that the detention is carried out by an order from a judge.

631. As for the extension of detention period, this is also decided by a judge. Police or public prosecutors do not have authority in deciding the extension of the detention period. Some of the members seem to believe, and has pointed out, that in some cases a person might be arrested and detained for a longer period on a separate charges. In such a case as for arrest and detention, the same procedure by a judge will be applied, the procedure I have just explained will be also applied. If there are two cases of arrest and detentions, there will be two examinations by a judge. In other words everything is under the control of a judge, and I would like to emphasize this point. Of course if there is any coercion to obtain confession during detention period, this type of confession will not be admitted as evidence due to the provisions of the Code of Criminal Procedures and the Constitution. Madame Chanet asked a question; that is, it may be similar to ('garde-a-vue'), but it actual is not. This detention is done strictly by an order from a judge.

(115) CONFESSION BY COERCION

632. Now, let me touch upon the situations concerning the confession by coercion, since there were questions asked on this point. And now, I would like to give the floor to Mr. Ono, who is in charge of that question. The question concerning if there is any coercion to obtain confessions in the substitute prisons.

633. Mr. Ono. I will speak in Japanese. A brochure titled 'Police Custodial Facilities in Japan' was delivered to you, I believe, and I would like to base my explanation on this material. Please refer to page 5. Separation of detention and investigation is explained in this page. There is a criticism, or in order to prevent criticism that there is a violation of human rights in prisons, after 1980, police has been carrying out strict separation of detention and investigation. And this is enforced very strictly. Investigators cannot control the treatment or the conditions of suspects detained in a facility, nor can he exercise any sort of influence on this.

634. As for the interrogation of suspects, it is not conducted in the substitute prison. There is a special interrogation room which is located outside of the police custodial facility. I think that there was some confusion on this point. Investigators are not allowed to enter the police custodial facility. When the suspects has to (be) taken out the custodial facility, the investigator has to get a permission from the head of the prison through the person in charge of the investigation in the police. In addition, the time of the entry and the exit from and into the facility will to registered on the book. If I may add some more points: At the trial, both from both the defense and the prosecutors ask for material (the book), and then sometimes this material I'm referring to is asked for, and we are proud of the fact that this (book is) a very objective material.

635. Now, I would like to touch on the hours of interrogation and investigation. Investigators are not allowed to interrogate the suspects before breakfast, and the suspects have to be returned to the facility for lunch and dinner. If investigation continues outside the office hours, it should not exceed the time for suspects to go to bed. So, as you can see, the treatment and conditions of the suspects are strictly under the control of the persons in charge of detention. And those people who are in charge of detention are not in charge of investigations, and they are under the control of the chief personnel who are in charge of detention. And this chief personnel for detention is under the supervision of departments of detention in the police agency. If you refer to the page 12 of the said material, separation of detention and investigation, under the title of 'separation of detention and investigation' you can get a good idea. As for the procedures necessary at the time of arrest, and as for the going out and the re-entry into the facility by a suspect, please refer to page(s) 13 and 14.

(116) PROBLEMS AND CONDITIONS RELATING TO THE SO-CALLED 'DAIYO KANGOKU'

636. Now, please turn to page 7. You can see item 7, titled so called 'Substitute Prison System'. The Code of Criminal Procedure provides that suspects shall be detained in prison. And the Prison Law stipulates that the police custodial facility may be substituted for a prison. This system originates in Meiji era. As for the detainees waiting the sentence, this system is not (necessarily) understood as a provisional system. There was a discussion in the Diet at that time, but the discussion at the Imperial Diet was concerning the detention less than one month. Therefore, that means that the discussion was concerned on the convicts, and which it stipulated in the Article 1 paragraph 3 (of the Prison Act).

637. The question was asked as to the necessity of using the police custodial facility as a substitute prison, and the (Japanese) reasons are mentioned below in the following paragraphs. As Mr. Watanabe explained earlier, in the criminal procedure in Japan we have to complete all the necessary investigation within the time limit of 23 days. Otherwise, suspects will not be prosecuted and the suspect will be released. This is a must. Therefore, we have to carry out efficient and speedy investigation, and in order to achieve that, if the place of detention is close to the investigating authority and there are sufficient number, there should be sufficient number of investigation rooms attached to that facility. And it is also necessary to secure enough guards for sending suspects. The police custodial facilities fulfill all these conditions. And at present in Japan there isn't any other facility that fulfills these conditions. The number of police custodial facility is 1,267 all over Japan. However, the number of detention house is only 154. And with this few number of detention house it is very very different (i.e. difficult) for us to complete the necessary investigation within the time limit of 23 days. As was pointed out by some of the members, of course this relates to the issue of cost.

638. The Legislative Council (i.e. the Deliberative Council on Legal System), which is an advisory body to the Minister of Justice in Japan, has been carrying out discussion on the revision of the Prison Law, and of course the discussion was held as to the possibility of abolishing substitute prison. However, the answer to this question given by the Ministry of Justice at that time was as follows: In order to abolish this system, we need to build 420 detention houses, new detention houses. And in addition to that we need extra staff, additional 7,200 staff who will be working at these new detention houses. Another 7,200 personnel or guards will be necessary for sending suspects in or out, or in between the facilities. And of course we will have to provide housing for these personnel. Based on the current price of things in Japan, even the conservative estimation gives us the amount of one trillion yen to carry all of these things out. Even though Japan is a rather wealthy country, but one trillion yen is still a very large sum of money. In building a new detention houses, there may be land available. However, we always face a strong oppositions from the residents in the near community. On the other hand, the police custodial facilities are usually located more conveniently than detention houses, and this is not only for the convenience of the police in carrying the investigations, but it is also conveniently located for the detainees (and attorneys).

639. Now, please refer to the last line in page 2. Item 3, titled 'Life Under Police Custody'. I will not go into details here, but if you read this item and the paragraphs, I'm sure that you will understand that enough and careful attention is being paid to the human rights of detainees. Some members have asked questions, such as that there is 24 hours supervision or monitoring of suspects or detainees. As for the police custodial facility we have some pictures here. On your right is the rooms where detainees will be put. The lower part is screened, there is some sort of shade. So, the supervisors or guards cannot look through this shade. This shows the location of prison guard. So, as you can see, from this place the prison guard cannot look into the cell. This is an enlarged picture. Therefore, the detainees are not under 24 hours constant supervision and monitoring.

640. It has also been pointed out that food is not, that food is rather bad, low level. Before I came to Geneva, I ordered some persons to go and take pictures of meals in one prison, and this is some of the pictures taken on that occasion. This breakfast: four slices of bread, tuna salad and milk and so forth. Lunch is what we call 'Tendon', which is tempura, deep fried vegetables and fish on top of rice with some sauce on top of it. Dinner; dinner consists of chicken, ham, beans, grapes and so forth. We didn't pick a special day, we just picked an ordinary day. Therefore, we have this guideline to provide at least 2300 kilo-calories a day and the nutritionists also check the menu.

641. It is of course possible for detainees to take any posture they like in the cells. There was also question concerning medical facilities. In police custodial facilities they all have designated doctors, and these designated doctors come to visit the facility twice a month to do medical checking. In the police custodial facility, although there are some restrictions are placed, but newspapers and radios are available, and religious activities are allowed. Contacts, communications with family members are allowed also. These points are also said in the referred said materials, so please refer and read them later.

642. The points I'd like to emphasize here is as follows: First of all, there is strict separation of detention and investigation. There are different organizations for these purposes. As I mentioned earlier, there are independent (and) different procedures for detention and investigation. The organization of supervision is also different.

643. The next point I'd like to emphasize is as follows: As you have correctly pointed out, there were some problematic cases in investigation. However, these problems do not relate to the substitution prison system. There may be various reasons for the judgment of a suspect being innocent: insufficient evidence, not enough statement, not enough reliability in the statement of a witness; and there may be some insufficient (and in)voluntar(y) statement. However, all these problems are related to investigation itself. So, these cases and problems are not related to the substitution prison system, and there is no logical connection between the two. As I have been mentioning, we are quite confident that there is no violation in our operation, that there is no violation of this Covenant. But if you have any specific cases which clearly shows the violation, I'm sure that we will be able to rectify the situation and we have that willingness to do it.

644. You can clearly see that there is enough care and attention provided to protect and ensure the protection of the human rights of detainees in the substitute prison by listening to the following points: In the recent not guilty cases, if you look at the reasons why it was not guilty, there is no single case where they cited the substitute prison system. There is another example: as was explained by Mr. Watanabe, the place of detention will be decided by a judge. Ninety-seven per cent (97%) of the persons arrested will be detained in the police custodial facility, and this is decided by a judge. If a judge has the awareness that the police custodial (facility) violates human rights of a detainee, I do not think (that) a judge will issue such an order. We are very confident, therefore, that there is no problem concerning human rights in the facility.

645. In the counter report submitted by the Japan Federation of Bar Associations, I find quite interesting argument. It says that if a judge tries to decide a detention house as a place of detention, in such a case public prosecutors systematically complains; and there is a tendency that the judge may change his opinion under such pressure from public prosecutors. If this is true, this is quite serious problem, because it implies that there is no independence of judiciary in Japan, or Japanese judges disregard human rights, because this is what is implied by this statement. The counter report submitted by the Japan Federation of Bar Associations, while giving this statement, does not give any concrete grounds for saying this. And this point is not referred to any further than this. If this is the true situation, this is a grave violation of human rights. We, however, believe that judiciary is independent, and that independence is secured, and that Japanese judges make the utmost efforts to ensure and establish the human rights of the people. And if such Japanese judge decides police custodial facility as the place of detention, I hope that you will take this fact into consideration fully.

646. Although this may have a personal note, I would like to mention that when I have a conversation with attorneys, some attorneys say that police custodial facility is better for the suspect or detainees. And some attorneys did say to me that it is easier to conduct interview with their clients at the police custodial facility. As I have been saying, the situation surrounding the police custodial facility has changed enormously: facilities and organizations have been improved and developed, and this improvement in one sense is thanks to the NGOs and Japan Federation of Bar Associations. If you have any doubts to what I have just said, if you have a chance to visit Japan, please visit a police custodial facility in Japan. In 1989, senior human rights officer, Mr. Mueller of the United Nations Human Rights Center visited Japan. And he said as follows, and his statement made a big impression on us. He said: " We have received complaints concerning Japan, but what I have read in the material, and what I have seen and heard directly by visiting the facility was very different. There is a big difference between what I have (been) said and what I have seen and heard directly".

647. We have made various efforts, but we are determined to make further efforts to clarify the legal system for the police custodial facility in order to provide further assurance of human rights of the detainees, and in order to give further systematic assurance and even more clarified separation of detention and investigation. So far, due to the stronger position from Japan's Federation of Bar Associations, the revised Criminal Code Bill has not been enacted yet at the Diet. But, we'd like to make our utmost efforts for the enactment of the bill. And I'd like to take this opportunity to ask for your understanding. Thank you very much.

648. The Chairman. Before I give the floor to Mr. Nagai, I would like to ask for the indulgence of the delegation of Japan that we have very little time, and that it would be advisable..., they have to reply, but I would like that..., it would be..., it is important to reply to the questions put by the members of the Committee, and not to engage in any kind of debate with somebody else. And then there are maybe some details that could be omitted if question was not detailed enough. Of course I don't intend to prevent the delegation from using all the time necessary, but I ask for their cooperation in this respect. Thank you. Mr. Nagai, you have the floor.

(117) INVESTIGATIONS BY THE POLICE

649. Mr. Nagai. Thank you, Mr. Chairman. I will speak in Japanese. Mr. Ono has covered almost all the questions concerning the police. Therefore, I would like to briefly touch upon some of the points. There is a strict separation of detention and investigation, and therefore I'd like to answer the part that is related to investigation. There is a question asked as to the existence of coercion to obtain a confession in the investigation process. Japanese NGOs including the Bar Associations of Japan mention in their counter report that there exists torture and coercion to obtain confessions. However, this is not based on the objective facts, and they quote the statement unilaterally from the accused, which was not substantially verified. For example, they quote a case where there was a misjudgment due to the confession coerced by torture. In the counter report submitted the Japan Federation of Bar Associations, such a case where the original death penalty was revised and in the end the accused was sentenced not guilty. But in any of these cases, there is no unfair or unlawful misuse of the substitute prisons in order to obtain confession by coercion. And in some of these cases, therefore, confessions of the accused were admitted as evidence because there was no such (coercion). Or in some of these cases, the substitute prison was not the place of detention. Therefore, there is no logical connection and there is no logical ground to say that the substitute prison system is a 'hotbed' of misuse or obtaining confession by coercion.

650. Since 1963, the police has developed various guidelines, and based on these guidelines, each prefectural police agencies try to enforce the proper investigation procedures and enhance their training for all the investigators and police officers. As a result of such efforts, there are only exceptional cases where a not guilty verdict was given due to the fact that there was involuntary confession obtained by coercion.

651. The Chairman. Thank you, Mr. Nagai. It will be Mr. Watanabe. You have the floor, Mr. Watanabe.

(118) THE DEATH PENALTY

652. Mr. Watanabe. Thank you, Mr. Chairman. I will speak in Japanese. Now let me touch upon the issue of the death penalty since we have had so many questions concerning this point. However, the time limitation should be taken into consideration in answering these questions, so I'd like to touch on only the main points.

653. First of all, let me touch upon how the spirit of the Covenant is utilized in death penalty cases in Japan. Well, as an example, there is a judgment by the Supreme Court in Japan as to sentencing of the death penalty. It is ruled in the judgment of the Second Petty Bench that the death penalty should be chosen only when there is no alternative. And then the method, or modus operandi of murder, and its consequence should be well taken into consideration in giving such sentence, particularly the number of murdered victims; the sentiment of the family of the victims and the social influence; the age of the criminal; former record of crimes; the conditions and the repentance after committing the crime; all these points should be taken into consideration. And only when the crime is grave, and from the viewpoint of fair punishment, and as well as the general prevention of crime, only when the capital punishment in the light of these points cannot be helped, only in such a case, should the death penalty be chosen. This is the standard in Japan for sentencing the death penalty, and this was in the judgment given by the Supreme Court. In line with this guideline, sentencing the death penalty is practiced very cautiously and in a very restricted manner.

654. As some members pointed out, there are too many crimes in which the death penalty will be applied, and some members said that there are too many crimes, and these statutory penalties does not mean that the death penalty is not the only punishment, because in some countries, when it says that the statutory penalty is the death penalty, that means that the death penalty is the only punishment. However, in Japan, there is certain discretion on the part of the judge to sentence imprisonment with labor or imprisonment without labor, instead of the death penalty. I would like to point this fact.

655. We have received many comments on the crimes for which the death penalty may be sentenced. When we look into the detainees sentenced to the death penalty, all of them have committed murder or robbery and murder. Next, in the draft of Revised Penal Code. As for this draft, there is such an argument as to the types of crimes for which the death penalty may be sentenced, but also, there are many conflicting opinions concerning other parts of the systems. And because of that, the bill has not been yet submitted to the Diet. Well, I'd like to conclude my remarks here.

(119) WIRE TAPPING

656. The Chairman. Thank you very much. I would like to ask Mr. Ono to reply to the questions regarding wire tapping.

657. Mr. Ono. I will speak in Japanese. We have received a question regarding wire tapping. Although I am not in charge of it, I would like to report of the findings after we have checked. The question concerns the case that occurred in November, 1986; and this is a case of wire tapping of a main member of a certain political party. The Tokyo District Court [sic, Tokyo District Prosecutors Office?] carried out the investigation in this case, and the conclusion was that there was no abuse (of power) by the national public servants (concerned), and the prosecution was sustained [sic, suspended?] as for the Telecommunication Communications Business Law related crimes, the prosecution was suspended. And the not guilty verdict concerning the abuse of rights [sic, power?] of public national servants, this was reconfirmed by a higher court later. As for the two policemen for whom the prosecution was suspended, they were dismissed in a disciplinary measure. And there was a large handling by the mass-media in Japan. So in that sense, they have been sufficiently 'punished'.

657.2 And, in any of these cases, every decision was reached through (appropriate) legal procedures. And, the notice was further given by the police based on this case, so that there will be reconfirmation among the police officials that they have to carry out their duties in a lawful (and proper) way. There are two civil cases concerning this incident, and the trial is still continuing for these two civil cases. By utilizing the procedures and systems to ensure the proper conduct by police and public prosecutors, in this case, all the local domestic remedies were ensured and applied, and part of such remedies are still going on. In such process, we believe that the rights of victims have been protected.

658. In addition, I would like to answer the question concerning the secret police in Japan. Since Japan is a judicial country [sic], and the rules of law [sic, the rule of law?] are strictly enforced; therefore there is no such thing as secret police in Japan.

658.2 The Chairman. Thank you, Mr. Ono.

659. Mr. Kunikata. Thank you, Mr. Chairman. Please give us just ten minutes, and we will stop after Mr. Mitani has finished his answer to the question. Thank you. In view of the time restraint.

660. The Chairman. Mr. Mitani, you have the floor. And, thank you for your cooperation.

(120) CONDITIONS OF PRISON AND PRISONERS SENTENCED TO DEATH

661. Mr. Mitani. Thank you, Mr. Chairman. I will speak in English, no, Japanese. I would like to explain on the situation of prisons in Japan. Brochure titled 'Prison Administration in Japan' has been delivered to you, and I may sometimes quote this brochure in my explanation. The treatment of prisoners in Japan of course has as its goal the correction and rehabilitation of the prisoners. There are several different systems of treatment, and if you will refer to page 11, you can find some explanations on these points.

662. In the questions, someone has touched on the issue of recidivism. Of course, we believe it is our grave duty to reduce or abolish the rate of recidivism. Although we admit that it is very very difficult to decrease the rate to zero, we can say that it is decreasing year on year. If you turn to page 16 and 17, you can see the actual figures.

663. Now, let me touch upon the issue of solitary cell (detention) in Japanese prisons. Some prisoners may be a bit feisty and fight very easily with other prisoners since there are many different types of prisoners in the prison, so there are some prisoners who cannot live with other people. We put these types of prisoners in a solitary cell. This is called 'strict solitary confinement'. So-called 'strict solitary confinement' means that a prisoner is on his own, alone in a cell. And then, he may do some work in his cell, and of course regular exercise, taking bath, and interviews are granted, so on these occasions he is allowed to go out of his cell. Every day, thirty minutes is granted for exercise. If it is not possible to do exercise outdoors, then prisoners can do some kind of exercise indoors. There is regular provision of medical services by doctors. When prisoners work indoors, then a seat where he is supposed to be seated is designated. However on other occasions, the prisoner is free to move in the room. However, they should not disturb other prisoners, for example, making loud noises. But, the number of persons under strict solitary confinement is very small. As of the end of May this year, only 1.4% of all the prisoners are under so-called strict solitary confinement.

664. A question was also asked as to the medical service in prisons, and this point is also explained in the brochure I mentioned earlier. If you read page 19 and the following pages, you can see the living conditions of prisoners. I would like to touch upon medical care, in particular. There are 355 doctors in total, including 226 'living-in' doctors. And these 355 doctors are responsible for 45,000 prisoners. And the ratio of doctors and prisoners is not less than any other foreign country.

665. A question was also asked as to the treatment of persons sentenced to death. Those on the death row are of course very cruel criminals that entails us to take a very cautious custodial approach. Therefore, we take care to separate those people from other prisoners. For that reason, prisoners sentenced to death are put into solitary cells. But this is quite different from what I called 'strict solitary confinement' which I explained at the outset of my intervention. If there is no special problem, they (are) allowed to do some exercise, allowed to watch movies or television, and in doing that we collect all the persons sentenced to death, and they do it together, exercising and watching television and watching movies and so forth.

666. Now let me touch upon interviews given to persons sentenced to death. It is possible for these persons sentenced to death to exchange letters or meet with family members and close relatives. As for having interviews with other people, other than family members and close relatives, there is certain restriction, because it is necessary to separate them from the society, and we have to be very strict in our custodial measures concerning these people sentenced to death. And since they are probably suffering from severe mental strain and instability, insecurity, we have to avoid situations where some insecurity is given or uneasiness is given to the society or surrounding communities where there is some danger as to the securing safe custody of these people sentenced to death, or if it is deemed to contribute to the insecurity of the people sentenced to death. In these cases, we have to restrict in granting interviews. As for the execution, carrying out of the death penalty, we take enough care not to hurt the feelings and honor of related family members of the convict. We also have to take into consideration the mental stability of other prisoners sentenced to death.

667. Because of these reasons, when and who was executed is not publicized. This information is not published. So we just give annual figures by cities[sic]. A question was also asked why we do not notify the family members on the dates of execution. That is because if the date is known to the outside, then there is a risk that the execution may be hindered. There are of course some issues such as inheritance between the convicts and family members. We give plenty of opportunity in the interviews that convicts are allowed to have with the family members before the execution. That concludes my explanation. Thank you.

668. The Chairman. Thank you, Mr. Mitani. Mr. Watanabe, do you have any comments? Mr. Kunikata, do you have any comments?

669. Mr. Kunikata. I don't have any additional comments at this stage. In view of the time, with your permission, may I stop answering your questions, but we believe that almost all, almost all of the main points raised by the distinguished members of the committee were replied faithfully by the delegation. Thank you.

(121) CONCLUDING REMARKS BY THE MEMBERS OF THE HUMAN RIGHTS

COMMITTEE

670. The Chairman. Thank you very much, Mr. Kunikata. We are very grateful for the understanding and cooperation of the delegation, because we are fully aware that under no circumstances for various reasons, we can prolong this examination until tomorrow. So, I shall now entertain the members of the Committee who wish to make their concluding remarks. The first speaker on the list is Mr. Sadi. I intend to close this list soon, so I ask those members, who have not asked for the floor and are not in the list, to give me a sign now so that we can distribute the time properly, because we have to think about non-discrimination in the Committee, and it is not fair that the first speakers have more time, and then at the end we urge the other speakers to speak a minute or a minute and a half. Mr. Sadi, you have the floor.

(122) CONCLUDING REMARKS OF MR. SADI (JORDAN)

671. Mr. Sadi. Thank you, sir. First let me thank once again Mr. Kunikata and his colleagues; those who took the floor with him to help him in this very arduous task, and those who were silent, and I'm sure they were all contributors to the Japanese reporting.

672. Let me start on a light note, after seeing the pictures of many of the prisoners, it looked like even better food than the U.N. cafeteria food sometimes, so on that score I was impressed. But on a more serious note, this has been a rather long short-dialogue. I think we have spent this day covering so many contentious issues, ranging from the death penalty; children; detention and trial conditions; minority and foreign national rights; trade unions; and so on and so forth; each and every issue would probably take a whole day. So it has been such a long and difficult day for you, I'm sure, and I would like to congratulate you on your candid presentation, and your dedicated efforts to paint to us as complete a picture as possible in this short period.

673. This morning, Mrs. Higgins said something that got me started to think about something else, when she said that, maybe I'm rephrasing her remark, that she noticed that perhaps there is a culture against trade unions in Japan; and you, Mr. Kunikata, said this afternoon that the Committee may have not understood the fundamentals of the situation in Japan. This got me into a line of thinking that perhaps we have a cultural dimension to what is happening today. This fundamental dimension is something that the World Conference (on Human Rights) talked a great deal and debated a great deal about it in June. This is what we referred to as cultural peculiarities, and I'm sure you're familiar with it. And I think if I remember correctly, in Vienna, it was decided that cultural differences may only enrich the cause of human rights, and cannot be used as reason to apply human rights conditions which are less than what the U.N. system calls for.

674. I would like, once again, to be brief because I know we only have half an hour. Let me just say, Mr. Kunikata, that this is not really a plaintiff defendant dialogue. We're not trying to acquit one another, or to out match one another. I think this is basically a dialogue that we try to identify for you what we think are problems or omissions, and possible areas where corrections could be introduced. And I think, I hope that you will take our comments as a body which is mandated to formulate the interpretations of the Covenant. I think by and large (that) I noticed that your efforts have been to defend your position, and I hope this is not the whole purpose of the dialogue.

675. I think we understood your position much better than before. I personally..., when I started to begin to understand the situation of Japan, I think it will take another day or two to have a better picture. But the task or the function of this debate or this dialogue is not to enter into confrontation; it is not an adversarial system of dialogue. At the end of this dialogue, the Committee will articulate its final comments. Its final comments will not exactly be a judgment on the situation in Japan, but in my humble opinion, it will be very close to that. I hope you will take these comments on your situation back to your government with the hope that it could be used and deployed for the purpose of correcting some of the omissions. There is no country in the world that doesn't have omissions or some pockets of violations, so Japan is no exception like all other countries in the world, and hopefully this dialogue will be fruitful in this sense, that our comments will be used to identify the problems that were there, the areas of problems, and hopefully they will be addressed in due course. And once again I would like to thank you, Mr. Kunikata, you and your colleagues. You have done a splendid job, you have given us many detailed information that no one could do in such a short time. Thank you again. Thank you.

676. The Chairman. Thank you, Mr. Sadi. Well, simple arithmetic tells me that comparing the list of speakers with the clock, that each speaker will have three minutes. So, I would like you, of course, there will be no enforcement of that limit, but I'd like you to know that any liberties you take is at the expense of our very indulgent interpreters who will have to stay longer. So, in that sense I thank you in advance for your cooperation, and I give the floor to Ms Evatt.

(123) CONCLUDING REMARKS OF MS EVATT (AUSTRALIA)

677. Ms Evatt. I thank you, Chairman; I will keep my watch in front of me. Could I thank the delegation of Japan for the most comprehensive information they have given to us during this session, and for the detailed responses to our questions, and for their very serious approach to these issues, and their clear commitment to implementing their obligations under the Covenant? And I especially commend the efforts that they have made to bring here, or to enable to come here so many NGOs.

678. I limit myself to the few points that I myself have raised. It seems to me that there is a lack of certainty about the exact nature of the obligations under the Covenant, both as to their content and to their binding nature. We've been refereed to issues such as public opinion, public welfare; it was suggested that the Constitution was superior to the Covenant, and I think it was heartening today to hear the very firm commitment to implementing the obligations.

679. I'd like to stress that the Covenant has both a letter and a spirit, and neither can be understood without the other, because they are indivisible, and what we are trying to do is to throw light on both these matters for the benefit of Japan.

680. I will mention only one point of the matters that still remain of concern to me, and that is the question of the period of interrogation in the absence of lawyers and without recording of any kind. Now, this is a practice which in every country of the world can lead to confessions under coercion. It's a problem everywhere, and when the system depends very heavily on the confession and the prosecution file, it is so important to have the safeguards which your own document recognizes as necessary, and I would therefore encourage attention to that particular aspect of the investigation process. There are other matters, others will raise them. I wish you a good journey home. This has been a most fruitful dialogue. Thank you.

681. The Chairman. Thank you, Ms Evatt. The floor is for Madame Chanet.

(124) CONCLUDING REMARKS OF MS CHANET (FRANCE)

682. Ms Chanet. Thank you, Mr. Chairman. I'd like to thank Mr. Kunikata and the entire delegation of Japan for having made so many efforts and showing such skill in continuing with the dialogue that has already been begun with the Committee. I regret the fact that the delegation seemed to be somewhat on the defensive as Mr. Sadi said, justifying its policy using public opinion instead of concentrating on the Covenant. Domestic legislation should be viewed in connection with the Covenant, and this should be justified. If it doesn't meet the exigencies of the Covenant, then that does not mean that Japan meets its commitment under the Covenant, and the Japanese delegation will understand that on a number of points the Committee does not share the analysis of the conformity of its practices and legislation, and I'm sure this will be transmitted to the government on these various points where we differ on our views.

683. I would refer to the various problems of illegitimate children and their status with regard to inheritance and registry on the birth register, which is not in accordance with Article 24 of the Covenant; the numerous cases in which the death penalty is imposed; the disciplinary conditions in the strict regime described seems to me to be deprivations that are contrary to social rehabilitation that is aimed at in the Covenant.

684. Finally, the most worrying problem seems to be the substitute prison system. I think that this system should be suppressed purely and simply, so that Articles 9 and 14 are complied with. These substitute prisons do not meet the norms imposed under the Covenant in my view.

685. The right to a defense, for example; this is incompatible with the presumption of innocence. It doesn't make it possible to ensure an equitable trial, a fair trial because it gives an exorbitant privilege to one party in the trial, a criminal trial.

686. And I think that perhaps the delegation, the Japanese delegation, which referred to France as being the reference in this area should come to France and see that in our country where we don't have the equivalent of a million, a billion yen for detainees and prison warders, that the police custody is counted not in days but in hours, and as of the twentieth hour, the presence of a lawyer is compulsory, and no one who is accused can be heard even by a judge without a lawyer. Those are the very few remarks that I wanted to make, Mr. Chairman, and I'd like once again to thank the Japanese delegation for its competence, and I hope that we will see substantive progress in the Fourth Periodic Report. Thank you.

687. The Chairman. Thank you, Ms Chanet, for giving the necessary consideration for the time restrictions. I now call on Mr. Prado Vallejo.

(125) CONCLUDING REMARKS OF MR. PRADO VALLEJO (ECUADOR)

688. Mr. Prado Vallejo. Thank you, Mr. Chairman.. Chairman, I would also like to thank the distinguished delegation, because I believe that this has been a very useful dialogue, useful for the delegation to know about the concerns of the Committee, and useful for the Committee because it now knows in greater detail about the system in Japan, its legislation, and the position of its authorities, particularly in regard to criminal matters.

689. Mr. Chairman, throughout these two days, it has been proved that there are various sources who have supplied us with information on problems that exist in Japan. Reference has been made in the past few days to various articles; all the articles that have been referred to by the members of the Committee that are not being complied with, and I hope that you will have noted those in order to improve the implementation of the Covenant.

690. I would just note the policy on refugees; children born out of wedlock and the discrimination against them; the preventive detention that can be prolonged over twenty-three days; police acts which have led to very serious suffering for detainees; and the substitute prison system that should be suppressed because it's contrary to the norms of penal law. I would like to express the hope that this dialogue will serve to ensure progress is made in the legislation and policies so that the Covenant can be implemented more effectively and guarantee human rights. Thank you very much, Mr. Chairman.

691. The Chairman. I call on Mr. Herndl.

(126) CONCLUDING REMARKS OF MR. HERNDL (AUSTRIA)

692. Mr. Herndl. Thank you, Mr. Chairman. I, too, will be very brief. I will make one general comment and one more specific comment at this stage. First of all, I would like to thank the Japanese delegation for the information, I mean the very comprehensive information they have provided us with; in written form and in oral form in addition to the report.

693. And I think the point I want to make at this stage is rather that this Committee is not a tribunal where one has to defend one's actions. It is a committee that is supposed to advise, to give its views and to advise the countries on how they should perceive the Covenant and its provisions. I am fully aware that the Japanese Government is determined to implement the Covenant, and I think the necessary action will in the future be taken on the basis of the views of this Committee. It is not a matter here to defend one's legislative system or defend one's practices, but rather to explain them to the Committee, and then in turn to take the Committee's comments at their real value as the basis of a dialogue and the basis for making changes in one's system if that is necessary to bring it in line with the Covenant.

694. We have defined here a number of practices which are not completely, let me say that, not completely in line with the provisions of the Covenant. Other speakers have referred to them. I just want to single out the practice of "daiyo kangoku", and I think the government will surely consider what we had to say in that respect.

695. My specific remark concerns the Optional Protocol, and I should like to express the hope that no artificial barriers will be erected towards ratification in respect of the ratification of the Optional Protocol. I note that in 1988, the delegate of Japan stated that the government was favorable to the ratification of the Optional Protocol, and it had undertaken a study of the legislation in order to identify any inconsistencies between the Japanese legal system and the Protocol, but the process had not yet reached the stage where the ratification was imminent. So, five years ago the government was favorable. It appears to me that currently the attitude is less favorable, but I hope that the reasons we have invoked in favor of giving serious consideration to the ratification of the Optional Protocol, that those reasons will be appreciated and will be accepted.

696. I also refer to the call of the Vienna Conference on the World Conference on Human Rights, which called for all states to consider ratifying communications procedures attaching to international instruments. With this, I would again thank the delegation for having explained its views, and I would wish you a good return, a safe return to your country. Thank you.

697. The Chairman. Thank you, Mr. Herndl. The next speaker is Mr. Lallah.

(127) CONCLUDING REMARKS OF MR. LALLAH (MAURITIUS)

698. Mr. Lallah. Thank you, Chairman. Like my colleagues, I congratulate Mr. Kunikata and his delegation for all the help that they have given the Committee to examine the report. I congratulate the government, particularly for sending us not only foreign service people, but people who are actually engaged in the appropriate sectors of Japanese administration, like Mr. Ono and Mr. Watanabe and his colleagues.

699. Mr. Chairman, I will not be long. I associate myself with the remarks made by Mrs. Evatt and Madame Chanet, particularly on the question of the administration of justice. My concerns; I will list them out, Articles 9, 2 and 3; and Articles 14(2), 14(3)(b), and 14(3)(e). I say this because I know notes are being taken, and they relate to the proper administration of justice in terms of the obligations under the Covenant. I really think there has been a misapprehension by the Japanese delegation of the meaning of these various articles, and I also think they have been misled by an improper incorrect analysis of what happens in other countries as Madame Chanet pointed out. Mr. Chairman, I will stop here. Thank you, and thank the delegation for their assistance.

700. The Chairman. Thank you very much, Mr. Lallah. The next speaker is Mr. Wennergren.

(128) CONCLUDING REMARKS OF MR. WENNERGREN (SWEDEN)

701. Mr. Wennergren. Thank you, Mr. Chairman. I want to thank you, Mr. Kunikata and his colleagues, for their dedicated contribution to the dialogue we have had, and for all valuable answers given. I, then, shall concentrate on the post-war settlements; compensation for war dead and wounded from the former Japanese colonies.

702. There are a number of laws and treaties that take care of the need for such compensation, but they do not cover the need for such compensation in all fields and not for all groups; among those groups the so-called "comfort women".

703. There is a case in the Supreme Court where Taiwanese wounded and bereaved families brought a law suit against the Japanese Government claiming for the same treatment as the Japanese soldiers on the basis of Article 26 of the Covenant and Article 14 of the Japanese Constitution which provides for equality before the law. The Supreme Court dismissed the claim on April 1992 on the grounds that the problem of compensation for the war dead and wounded of the former colonies should be addressed by the legislature.

704. Now, Article 14 of the Constitution prescribes that all of the people are equal under the law, and that there shall be no discrimination in political and economic and social relations. But, Article 26 of the Covenant, on the other side, prescribes that all persons are equal before the law, and adds that they are also entitled without any discrimination to the equal protection of the law. Article 26 of the Covenant, then, has wider scope than Article 14 of the Constitution. The Supreme Court was therefore quite right recording to the latter Article to refer the issue of compensation to the legislature. But in my view, the legislature, then, has to pay attention to what is prescribed in Article 26 of the Covenant about all persons being entitled without any discrimination to the full protection of the law. Also, the legislature has obligations under the Covenant.

705. Not all categories of wounded have so far been given equal protection of the law. I think this issue should be studied in depth by the Japanese Government and Legislature. Although the Second World War happened long ago, and before the Covenant entered into force for Japan, sufferings and other effects of war events that continue to exercise effects on persons after the Covenant entered into force for Japan have to be subsumed under the Covenant. Thank you, Mr. Chairman.

705.1 The Chairman. Thank you, Mr. Wennergren. The next speaker is Mr. Mavrommatis.

(129) CONCLUDING REMARKS OF MR. MAVROMMATIS (CYPRUS)

706. Mr. Mavrommatis. Thank you very much, Mr. Chairman. Mr. Chairman, thanks to the full cooperation of the large delegation, we have had a very good dialogue indeed. Generally, to me it appears that there is a healthy respect in the country for human rights and fundamental freedoms. There has, Mr. Chairman, been a certain degree of problems in respect of sectors that have been identified from the previous time, but that progress has to my mind been inhibited by a tendency to give an interpretation to international obligations under the Covenant more consistent with popular opinion than with actually what the Covenant contains. I hope that this will be taken care of in the light of the repetition of this debate also.

707. It unfortunately concerns, and this compounds the inconsistency, it unfortunately concerns mostly disadvantaged sectors of population side, such as the children born out of wedlock; the Koreans; the "Buraku"; and others.

708. Other areas where there is room for more improvement are the question of the death penalty in order... from long detention, to the number of offenses, and to such other matters and the delay on death row, etc., the question of police custody coupled with regulating visits by lawyers, and delays generally in criminal trials and appeals but also from special tribunals or commissions. I think that the political volition exists for improvements. I hope that the first thing, they do in their report next time, is in respect of the inconsistencies to inform us that these have been taken care of.

709. Also, one of the best ways of doing it is by ratifying the Optional Protocol as most of the self-respecting countries that promote human rights do. We wish the delegation a pleasant return home, and again I thank them warmly and sincerely for their full cooperation.

710. The Chairman. Thank you, Mr. Mavrommatis. The next speaker is Mr. Ndiaye.

(130) CONCLUDING REMARKS OF MR. NDIAYE (SENEGAL)

711. Mr. Ndiaye. Thank you, Mr. Chairman. Mr. Chairman, I would like very briefly to thank the delegation of Japan very warmly. We've had an interview with them that I think has been quite fruitful and has shown that the situation when the Second Report was submitted..., that the situation has improved quite considerably since then. I would recommend for further progress that the Optional Protocol be ratified, and the Convention on the Suppression of the Crime of Apartheid as well. I think, like Ms Chanet said that Japan should pay special attention to the situation of illegitimate children. I think that the same attention should be given to women, to the Korean[sic] veterans, the situation of certain workers, particularly in factories where a kind of Stakhanovism is practiced.

712. This is what I want to say, and I would also like to say that I support all the remarks made by Mr. Lallah. The delegation hasn't answered my questions this afternoon, but I presume it's for lack of time, but in any case I will contact Mr. Ando who will be able to give me the supplementary information. I wish a safe journey home to the members of the delegation who are going home, and those who are remaining here, I'd like to wish them a good stay. Thank you.

713. The Chairman. Thank you, Mr. Ndiaye. Mr. Pocar, you have the floor.

(131) CONCLUDING REMARKS OF MR. POCAR (ITALY)

714. Mr. Pocar. I thank you, Mr. Chairman. Mr. Chairman, I too would like to extend my warm thanks to the delegation for the way they have participated in this dialogue with the Committee. I am very grateful for it. I will not mention areas of concern that have already been made clear by colleagues, nor will I repeat the issues that I have made myself on certain issues. The answers on the points I have raised have been only partly persuasive, and my view is that certain areas for discrimination still exists in Japanese law, and that the system of remedies should be improved to ensure that practices are effectively brought truly in line with the law and with the Covenant.

715. In this respect, however, I'm much of the view that the improvements in these last years in the country have been visible and significant as we learned from the report and from the discussion of these two days. I have no doubt that our concerns will receive adequate consideration by the competent authorities, and that such consideration will lead to further improvement.

716. Let me finally, Mr. Chairman, hope that Japan will soon accept the Optional Protocol, and I hope that the explanation that has been given here during these days will help in this respect. Thank you, Mr. Chairman.

717. The Chairman. Thank you, Mr. Pocar. I give the floor now to Mr. Bruni Celli.

(132) CONCLUDING REMARKS OF MR. BRUNI CELLI (VENEZUELA)

718. Mr. Bruni Celli. Thank you, Mr. Chairman. I think this has been a very useful dialogue. In these two days we have realized what great efforts Japan has made to improve its situation, but I think everyone here have also realized, both we and the delegation of Japan, how very much remains still to be done in the area of human rights. I think the purpose of this dialogue has been achieved. You now know all the concerns of the Committee. They are in a way the concerns of the international human rights committee, and if you re-read the report, you will realize as you compare each paragraph of the report with the comments that we've made, (and) that you have learned a lot, and that you've heard some very important criticisms with the main aim of improving the human rights situation in Japan.

719. I'd also like to say that I attach great importance to reports on the human rights situation in Japan because we know that it's a leader country as I said earlier, a democratic leader, a leader in pacifism, an economic leader, a technological leader, and it should be a leader in human rights too, particularly in a region like Asia where really we do need an outstanding exemplary country in their human rights.

720. I should like to join my colleagues in wishing the delegation of Japan, Mr. Kunikata and the other members of the delegation, a safe return home, and I also wish that to the many Japanese belonging various human rights non-governmental organizations who have come to be present during this intensive dialogue we've held. Thank you.

721. The Chairman. Thank you, Mr. Bruni Celli. I give the floor now to Mr. Francis.

(133) CONCLUDING REMARKS OF MR. FRANCIS (JAMAICA)

722. Mr. Francis. Thank you, Mr. Chairman. Mr. Chairman, before I come to my closing remarks, may I just say a few words of thanks to Mr. Gotoh for having answered my question in relation to the Vienna Convention. I'm very grateful to him indeed. But given the Constitution itself gives it supremacy over treaties, the fact remains that there is need for legislation, as has been expressed by so many members of the Committee, to give the Covenant its rightful place within the legal regime in Japan.

723. Turning now to my closing remarks, I'd now like to thank the entire delegation for their report; for the comments that they have given us; for their responses to our own observations; and to say that, despite all of that, I have a deep concern which is rooted in the fact that it appears to me that in the implementation of its obligations under the Covenant, Japan has not approached the process in a reforming zeal, and in not in keeping with the spirit of the Charter itself. Unhappily I must say that that could be partly responsible for some of the social problems affecting Japan. For example, as is reported in Article[sic, paragraph?] 215 of the Report, namely welfare crime, I would ask the delegation to consider whether it is not reasonable to assume that a very high percentage of the welfare crimes derived from young people being officially discriminated against by being born outside of wedlock. I think this is a point to bear in mind, and hope that Japan would review its position in this regard.

724. Mr. Chairman, the rest of what I want to say falls so much in line with what Mr. Bruni Celli has said, and I want to read from my notes. Japan is a very very rich country in dollar terms; technology; expertise; and an exceptionally skilled work force. On the human rights side, Japan is fortunate to have an alert committee network of non-governmental organizations, all seemingly ready to assist Japan in becoming the leading light for human rights in the Orient. Japan, we implore you to grasp this opportunity for leadership in that regard. It only remains for me to join my colleagues in wishing you bon-voyage, and hope that you will continue this useful dialogue which you have begun when next you return. Thank you very much, Mr. Chairman.

725. The Chairman. Thank you, Mr. Francis. The next speaker is Mr. Aguilar.

(134) CONCLUDING REMARKS OF MR. AGUILAR (COSTA RICA)

726. Mr. Aguilar. Thank you, Mr. Chairman. I'll be very brief. I really haven't got anything left to say, my colleagues have gone ahead and said absolutely everything. But I do want to join them, and particularly express my concerns about the wide range of crimes on which the death penalty is imposed, and the concerns regarding the 'Daiyo Kangoku' detention, as well as the types of discrimination which I think are a heavy burden on Japanese society, in particular that against those born out of wed-lock; people belonging to certain trade unions; and discrimination against those who fought side by side with Japanese troops as Japanese, but today cannot enjoy certain benefits that other former soldiers enjoy. Having said that, I would also like to express my concern over the way in which apparently public opinion polls are what govern when it comes to implementing the rules in the Covenant. I thank the delegation for their brilliant presentation, and I wish them a good return.

(135) CONCLUDING REMARKS OF MS HIGGINS (UNITED KINGDOM)

727. Ms Higgins. Thank you, Mr. Chairman. I want to begin by very sincerely congratulating the delegation led by Mr. Kunikata on the truly brilliant performance, and all the information they have given us. I, too, remain concerned about a range of issues. We were told that with regards to our last rounds of observations on the illegitimacy issues, and issues relating, as we see it to, the continuing discriminations on grounds of nationality that we'd receive further written responses that would explain Japan's position better. Of course we'll read these issues with care, but at end of the day, the issue is to whether, when we understand Japan's position very well, whether it's still compatible with the Covenant. So I hope that will be borne in mind too.

728. I want to make a couple of points in response to the very last round of answers we had, and to use my minute and a bit to do that. On the 'substitute prison' what I want to say is this: I listened carefully to the information we were given which certainly added one or two thing to what we had understood before. But if you really want to have a system that is separate in reality and not simply on paper, it seems to me that it has to include the following: First, counsel available throughout interrogation; Secondly, records available to the accused and to counsel as to the timing of interrogations and everything that has occurred; Third, that there be time limits for the interrogation, and to hear that it can go on day in and day out merely after breakfast until bed time is extremely worrying, and I continue also to feel that all of this is best not done in the isolated system of a 'substitute prison' which effectively works as a prolonged solitary confinement to persons not yet found guilty of anything.

729. And, my second concluding point in respect of the last responses is that I am truly disturbed about the replies I heard on Article 6, particularly with regard to the reasons given for being on death row, the solitary cells and the no granting of interviews, and the non notification of families. I must firmly say that I regard those, without hesitation, as not compatible with the Covenant.

730. I do think, and I want this to be understood, that generally, that there is a good respect for human rights in Japan, and there has been undoubted progress made. We're pointing to areas where we hope there will be serious consideration given to further progress. It's unfortunate there aren't summary records, because although we will in rather brief form be making certain indications, I'm sure it would have been very helpful to you to have in front of you to show your government officials all the detailed reasons we've given. Regrettably that can't be so, but we nonetheless hope you have found this dialogue useful (as) we most certainly have..., and thank you again.

(136) CONCLUDING REMARKS OF MR. DIMITRIJEVIC (YUGOSLAVIA)

731. Mr. Dimitrijevic. Well, I have to stop myself from speaking for more than three minutes, and of course, many more minutes would be necessary to express our thanks on behalf of the whole Committee for the excellent preparedness of the whole delegation, for the time and diligence and patience with which the members of the delegation have tried to cover all the ground that was indicated by the questions of the members of the Committee.

732. Of course, you are aware in the delegation that the Committee will in a separate procedure formulate its final comments on the report of Japan and on the human rights situation and the implementation of the Covenant in Japan, and this will be sent through official channels to the government before the end of this session. But before that, I think I can indicate again, and you have seen it from the many times it was referred to, that the impression the Committee have gained is that there are serious efforts have been made in Japan to observe the Covenant.

733. But nevertheless, there are some points that indicate that some difficulties may arise, and these refer to various aspects of discrimination; to questions related to the death penalty; to questions relating to police custody and other forms of custody; to labor problems; and maybe to minorities. And you have heard the wish of many members of the Committee, which is of course only a recommendation to the Government and the Legislature in Japan that the First Optional Protocol to the Covenant be ratified by Japan.

734. Again, I would like to indicate that, in the course of the debate, we have enjoyed what we enjoy most, a full dialogue; and when a dialogue takes place, you see a very important thing, and this is something that has to be understood and taken care of, that the thinking about that we were not interested in different information about facts which can be easily corrected, but the differences in thinking between the members of the Committee in some aspects and the members of the delegation as to the way some of the provisions of the Covenant have to be interpreted, and we would like you to convey to the Government for consideration the way the members of the Committee interpret the Covenant, and believe it should be interpreted in the case of Japan.

735. Our meetings are public, and I think I should note that the presence of so many individuals and representatives of NGOs from Japan, not only in this room, but in an adjacent room indicates that there is an important and strong interest in human rights issues in Japan, which we also tend to believe is due to the honest approach of the government to the reporting procedure, and to the fact that the report and the consideration by the Committee has been made public by the government which enabled so many people to be present here, and which gave a certain fullness to our deliberations which had to take place in public.

736. And, of course before I conclude, I would like to thank our interpreters for again allowing us more time to finish this business, and also to thank the group of interpreters who have enabled us and the audience to follow the proceedings in Japanese. So, I wish you, the whole delegation, on behalf of the whole Committee a safe return home to those members of the delegation returning home, and before we conclude, I would like to ask the delegation of Japan if they want to make a concluding statement. You have the floor, Mr. Kunikata.

(137) CONCLUDING REMARKS OF MR. KUNIKATA (JAPAN)

737. Mr. Kunikata. Thank you, Mr. Chairman. Mr. Chairman, distinguished members of the Human Rights Committee, the consideration of the Third Periodic Report of our country by the Committee is coming to an end. The constructive dialogues today and yesterday are very useful and informative for our delegation. We had to overcome not only the eight hour jet-lag, but also the disadvantage in terms of language, but we hope we were able to properly respond the questions raised by the distinguished members of the Committee. We are deeply impressed by the sincere manner in which the dialogues were conducted under the able chairmanship of Mr. Dimitrijevic and Mr. Wennergren. We will take note of the views and opinions expressed by the distinguished members of the Committee, and they will be given due consideration in the future of our government. Finally, on behalf of the Government of Japan, I wish you all every success in your important capacity. Thank you, Mr. Chairman. Just one word, Mr. Watanabe has a piece in the last moment, please excuse and permit me to give the floor just for one moment to Mr. Watanabe.

738. The Chairman. You have the floor, Mr. Watanabe.

739. Mr. Watanabe. Thank you very much, Chairman. I will speak in Japanese. In addition to the comments made by Mr. Kunikata, I'd like to add some points of my own. We have received many comments on various issues, and many comments were received concerning the 'substitute prison' system. Due to the time limitation, I could not give full explanation, but if you refer to the brochure for the issues concerning the 'substitute prison' system, if you carefully read this brochure, there are many points concerning this issue, and I'm sure you will get a fuller picture concerning this system in Japan. So, I hope you will refer to this carefully later. Thank you very much.

740. The Chairman. Before I conclude, before I adjourn the meeting, I would like to inform the delegation that the Fourth Periodic Report of Japan is due on the 31st of October of 1996, and that we hope that in this report all the questions will be considered. Thank you very much. The meeting is adjourned.

Comments of the Human Rights Committee on November 4, 1993

JAPAN

1. The Human Rights Committee considered the third periodic report of Japan(CCPR/C/70/Add.1 and Corr.1 and 2) at its 1277th to 1280th meetings heldon 27 and 28 October 1993, and adopted the following comments: [1. At its1290th meeting (forty-ninth session) on 4 November 1993.]

A. Introduction

2. The Committee commends the Government of Japan on its excellent report,which has been prepared in accordance with the Committee's guidelines forthe presentation of State party reports and submitted on schedule. The Committeeappreciates, in particular, the participation in its consideration of thereport of a competent delegation from the Japanese Government, which consistedof experts in various fields relating to the protection of human rights.The Committee is of the view that the detailed information provided by thedelegation in its introduction of the report, as well as the comprehensivereplies furnished to the questions raised by the Committee members, contributedgreatly to making the dialogue fruitful.

3. The Committee notes with appreciation that the Japanese Government gavewide publicity to its report, thus enabling a great number of non governmentalorganizations to become aware of the contents of the report and to makeknown their particular concerns. In addition, some of them were presentduring the Committee's consideration of the report.

B. Factors and difficulties affecting the implementationof the Covenant

4. The Committee notes that the Japanese Government sometimes experiencesdifficulties in taking measures to implement the Covenant due to varioussocial factors, such as the traditional concept of the different roles ofthe sexes, the unique relationship between individuals and the group theybelong to, and particularities associated with the homogeneity of the population.

C. Positive aspects

5. The Committee takes note with satisfaction of the serious approach theJapanese Government has taken in dealing with issues relating to civil andpolitical rights, and of its commitment to fulfill its obligations underthe Covenant.

6. The Committee is of the view that the human rights situation in Japanhas improved since the consideration of the second periodic report of thatState party in 1988, and that there is generally a good regard for humanrights in the country.

7. Furthermore, the Committee notes with appreciation that Japan activelyassists in the promotion of human rights at the international level. Italso notes that there is awareness in the Japanese society of the provisionsof the Covenant; this awareness is confirmed by the interest expressed bymany Japanese non-governmental organization in the Committee's considerationof the third periodic report of Japan.

D. Principal subjects of concern

8. The Committee believes that it is not clear that the Covenant would prevailin the case of conflict with domestic legislation and that its terms arenot fully subsumed in the Constitution. Furthermore, it is also not clearwhether the "public welfare" limitation of articles 12 and 13of the Constitution would be applied in a particular situation in conformitywith the Covenant.

9. The Committee expresses concern at the continued existence in Japan ofcertain discriminatory practices against social groups, such as Korean permanentresidents, members of the Buraku communities, and persons belonging to theAinu minority. The requirement that under the penal law alien permanentresidents must carry documentation at all times, while this does not applyto Japanese nationals, is not consistent with the Covenant. Moreover, personsof Korean and Taiwanese origin, who served in the Japanese Army and whono longer possess Japanese nationality are discriminated against in respectof their pensions.

10. In addition, the Committee expresses concern at other discriminatorypractices that appear to persist in Japan against women, with regard toremuneration in employment, and notes that de facto problems of discriminationmore generally continue to exist. The Committee acknowledges the fact thatlegal measures have been taken by the Japanese authorities to forbid thosepractices and that there are comprehensive programs to promote equal opportunity.However, it appears that a certain gap exists in Japan between the adoptionof legislation and the actual behavior of certain sectors of society. TheCommittee notes that recourse for settlement of claims of discriminationagainst trade-union activists is very protracted.

11. The Committee is particularity concerned at the discriminatory legalprovisions concerning children born out of wedlock. In particular, provisionsand practices regarding the birth registration forms and the family registerare contrary to articles 17 and 24 of the Covenant. The discrimination intheir right to inherit is not consistent with article 26 of the Covenant.

12. The Committee is disturbed by the number and nature of crimes punishableby the death penalty under the Japanese Penal Code. The Committee recallsthat the terms of the Covenant tend towards the abolition of the death penalty,and that those States which have not already abolished the death penaltyare bound to apply it only for the most serious crimes. In addition, thereare matters of concern relating to conditions of detainees. In particular,the Committee finds that the undue restrictions on visits and correspondence,and the failure of notification of executions to the family are incompatiblewith the Covenant.

13. The Committee is concerned that the guarantees contained in articles9, 10, and 14 are not fully complied with, in that pre-trial detention takesplace not only in cases where the conduct of the investigation requiresit; the detention is not promptly and effectively brought under judicialcontrol and is left under the control of the police; most of the time interrogationdoes not take place in the presence of the detainee's counsel, nor do rulesexist to regulate the length of interrogation; and the substitute prisonsystem (Daiyo Kangoku) is not under the control of an authority separatefrom the police. In addition, the legal representatives of the defendantdo not have access to all relevant material in the police record, in orderto enable them to prepare the defense.

14. The Committee regrets that appears to be a restrictive approach in certainlaws and decisions as to the respect of the right to freedom of expression.

15. The Committee notes with concern the exclusion of Koreans from the Government'sconcept of minorities. This is not justified by the Covenant, which doesnot limit the concept of minority to those who are nationals of the Stateconcerned.

E. Suggestions and recommendations

16. The Committee recommends that Japan becomes a party to both OptionalProtocols to the international Covenant on Civil and Political Rights andto the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment.

17. The Committee also recommends that the Japanese legislation concerningchildren born out of wedlock be amended and that discriminatory provisionscontained therein be removed, to bring it into line with the provisionsof articles 2, 24 and 26 of the Covenant. All discriminatory laws and practicesstill existing in Japan should be abolished in conformity with articles2, 3 and 26 of the Covenant. The Japanese Government should make effortsto influence public opinion in this respect.

18. The Committee further recommends that Japan take measures towards theabolition of the death penalty and that, in the meantime, that penalty shouldbe limited to the most serious crimes; that the conditions of death rowdetainees be reconsidered; and that preventive measures of control againstany kind of ill-treatment of detainees should be further improved.

19. With a view to guaranteeing the full application of articles 9, 10,and 14 of the Covenant, the Committee recommends that pre-trial proceduresand the operation of the substitute prison system (Daiyo Kangoku) shouldbe made to be compatible with all requirements of the Covenant and, in particular,that all the guarantees relating to the facilities for the preparation ofthe defense should be observed.

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