Statement on the "Outline of the Bill being Considered on the Establishment of a Human Rights Commission" Released by the Minister, the Senior Vice Minister and the Parliamentary Secretary of the Ministry of Justice
On December 15, 2011, the Minister, the Senior Vice Minister and the Parliamentary Secretary of the Ministry of Justice (“MOJ”) announced “regarding the release of ‘Outline of the Bill being Considered on the Establishment of a Human Rights Commission.’” This explains the outline of the bill concerning the establishment of a national human rights institution (“NHRI”) (tentatively called the “Human Rights Commission (HRC)”), which the MOJ has been considering since “Establishment of a New Human Rights Relief Institution (Basic Policy)” (hereinafter referred to as the “Basic Policy”) was released on August 2, 2011.
The establishment of an NHRI complying with the Paris Principles adopted by the United Nations (“UN”) is domestically and internationally recognized as a urgent issue in order to improve the human rights situation in Japan. This outline of the bill (hereinafter referred to as the “Outline of the Bill”) has put the contexts of the Basic Policy into concrete shape, and can be seen as a step towards the submission of a bill to the Diet.
However, the Japan Federation of Bar Associations (“JFBA”) will point out the following issues regarding the Outline of the Bill, in addition to the issues which the JFBA pointed out in the JFBA’s “Opinions on the ‘Establishment of a New Human Rights Relief Institution (Basic Policy) issued by the Minister, Senior Vice Minister and Parliamentary Secretary of the Ministry of Justice,” (hereinafter referred to as the “Opinions”) on August 19, 2011.
First, the proposed structure of HRC’s regional offices does not sufficiently guarantee the independence of the HRC. The Outline of the Bill explains that clerical work of regional offices of the HRC will be delegated to the Director of the Legal Affairs Bureau and the Directors of the District Legal Affairs Bureaus, while complaints regarding human rights violations committed by civil servants will be investigated by the HRC staff allocated at necessary locations across Japan. However, the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (“ICC”) which assesses human right institutions with regard to their compliance with the Paris Principles notes that the number of people seconded should, ideally, not exceed 25% and should never be more than 50% of the total workforce of the NHRI. From this point of view, comprehensive delegation of the HRC’s clerical work to the Legal Affairs Bureau is greatly problematic from an independence perspective. Instead, the system of the HRC should be designed to secure a sufficient number of its own staff members allocated to its regional offices and enable the HRC itself to investigate complaints seeking remedies for human rights violations committed by civil servants since such investigations strongly require specialized knowledge and independence.
Secondly, regarding human rights violations subject to the investigation procedures, it is imperative that their relationship with the international human rights instruments be clarified. As described in the Paris Principles, one of the major responsibilities of NHRIs is to promote and guarantee the effective implementation of international human rights instruments, and from this perspective, the UN Human Rights Council and various human rights treaty bodies have been calling for the establishment of an NHRI in Japan as soon as possible.
However, in the Outline of the Bill, even in the part explaining human rights violations subject to the investigation procedures, there is no indication contained anywhere as to the effective implementation of international human rights instruments. The bill should clearly stipulate that one of the objectives of the NHRI is to ensure the effective implementation of such international human rights instruments. It should also clarify that the human rights violations subject to the relief procedures are to include those acts which are found to infringe upon such international human rights instruments.
Thirdly, in the Outline of the Bill, the human rights violations subject to the investigation procedures have been restricted to those “acts which could be judged as illegal under the judicial procedures.” However, this should not be a requirement. Regarding the human rights violations subject to the investigation procedures, the Outline of the Bill has added an explanation that those violations should be “acts which could be judged as illegal under the judicial procedures.” The judicial procedures require the person concerned to bear a great burden while, on the other hand, their solutions exert powerful effects such as providing obligations for compensation and the revocation of administrative dispositions.
On the other hand, unlike the judicial procedures, an NHRI aims to easily and promptly realize human rights relief by presenting flexible solutions without using executable or enforceable dispositions. If the HRC is not able to assess an act as being illegal unless such act could also be judged as illegal by the judicial procedures, the question arises as to whether the HRC is able to provide relief only when there is a judicial precedent for the particular case involved. In addition, even though the HRC is not mandated to impose compensation or revoke administrative dispositions, its procedures could be barred by the statute of limitations. Accordingly, such restriction could impose significant limitations on the power and role of the HRC. Therefore, there should not be a requirement for there to be “acts which could be judged as illegal under the judicial procedures”.
Fourthly, human rights violations in relation to labor issues should be subject to investigation procedures. As an NHRI aiming to provide easy and prompt solutions, the HRC is expected to wildly open its gates to victims of all sorts of human rights violations, including labor issues. Thus, it is not appropriate to limit the fields to be handled by the HRC.
The JFBA urges the Government to submit a bill on the establishment of the HRC to the current session of the Diet after making necessary modifications to the bill in line with the Opinions and this statement of the JFBA.
January 13, 2012
Japan Federation of Bar Associations