Resolution Concerning Judicial Responsibility for the Hansen’s Disease Isolated Court
In Japan where the segregation policy for Hansen’s disease patients was carried out for 90 years, Hansen’s disease patients have suffered from serious discrimination, infringement of their fundamental human rights and violations of their dignity. Discrimination against such patients and violation of their human rights were also practiced in the judicial system as demonstrated by the creation of the “special court” located in the premises of forcibly isolated facilities such as Hansen’s disease sanatoriums or penal detention centers (hereinafter referred to as the “Hansen’s disease isolated court”). Patients were tried under inhuman and discriminatory conditions.
The segregation policy under the “Leprosy Prevention Law” was found to be unconstitutional in 2001. The government decided not to appeal the court ruling, and apologized to Hansen’s disease patients and survivors, and the Diet adopted a resolution for apology. At the JFBA’s 44th Convention on Human Rights Protection in November 2001, the JFBA made an official apology for overlooking the violations of human rights suffered by Hansen’s disease patients as well as for the delay in responding to cases seeking the remedy of such human rights abuses, while adopting a special resolution demanding the early and full solution of the problem concerning Hansen’s disease to be made by the state. Since then, the JFBA has periodically announced President’s statements or comments calling for a comprehensive solution of the Hansen’s disease problem.
Regarding the problems surrounding the Hansen’s disease isolated court, in March 2005, the “Verification Council on the Hansen’s Disease Problem” set up by the Ministry of Health, Labor and Welfare concluded their report and declared that the isolated court issue was a violation of the Constitution. Nevertheless, neither the Supreme Court nor the Supreme Public Prosecutor’s Office, nor even the JFBA have conducted investigations into the problem to shed light on its unconstitutionality, and the responsibility therefor has remained unclear.
In November 2013, the National Conference of Inmates of Hansen’s Disease Sanatoriums requested the Supreme Court to verify the issue of the Hansen’s disease isolated court, and the Supreme Court created an investigation committee in May 2014. In April 2016, the committee announced its outcome report, and admitted the fact that, for the period from 1948 to 1972, 95 cases involving Hansen’s disease patients were tried in a courtroom outside the court. The report found that, after 1960 at the latest, the cases may have been treated in an unreasonable and discriminatory way, found that this breached the Court Acts, and admitted its responsibility with an expression of apology for encouraging bias and discrimination against Hansen’s disease patients and for violating their dignity.
The JFBA initiated an investigation in August 2015 in response to the request of the Conference to ask the relevant authorities to take remedial measures in regard to the Hansen’s disease isolated court, and then held a symposium entitled “Isolated Court and the Responsibility of the Judiciary” in July 2016, in which the JFBA President made an apology.
The Hansen’s disease isolated court was created in line with an isolation policy based on the belief that it was highly infectious. It violated the principle of equality under the Constitution and the dignity of patients and breached the public trial rule, thus constituting a serious infringement of fundamental human rights.
Human rights violations in the judicial system should be addressed and solved by each of its components such as the court, the prosecutor’s office and the bar association, as well as the Ministry of Justice that created the isolated court with the implementation of preventive measures.
Now therefore, the JFBA resolves as follows:
1. The JFBA failed to address the unconstitutionality of the Hansen’s disease isolated court for a long time. Even after the report of the “Verification Council on the Hansen’s Disease Problem” found the existence of unconstitutionality, it failed to immediately take human rights remedial actions for verification, redress of damage and formulation of preventive measures. Failing to prevent and correct human rights violations by the judiciary is tantamount to encouraging bias and discrimination against Hansen’s disease patients. We deeply regret what has been done in the past, and sincerely apologize those who were tried in the isolated court, Hansen’s disease patients, survivors and their families.
Hansen’s disease patients have been deprived of their fundamental human rights and had their dignity trampled on and ignored under the name of medical treatment. Based on the lessons we have learnt, and so as not to repeat such human rights violations caused by bias and discrimination, patients of any disease should be deemed as a subjective right holder rather than an object of treatment, and their dignity should be respected.
Hence, the JFBA shall exert its best efforts to ensure a peaceful life for Hansen’s disease patients, survivors and their families, and we will continue to call for legislation providing for the guarantee of rights for all patients. The JFBA will also conduct human rights training for its constituent members and engage in human rights activities to avoid making the same mistake again.
2. The JFBA requests the state machineries that were involved in the Hansen’s disease isolated court to take the following measures:
(1) For the Supreme Court, to reconsider its position of not openly acknowledging the unconstitutionality of the Hansen’s disease isolated court, including those set up before 1960, in its investigation report.
(2) For the Supreme Public Prosecutor’s Office, to go through all of the criminal cases and sentences handed down at the Hansen’s disease isolated court and announce its outcomes; and, based on such outcomes, to sincerely seek to restore the honor of Hansen’s disease patients, survivors and their families through petitions for re-trials or extraordinary appeals.
(3) For the Ministry of Justice, to investigate the criminal detention center and the sentences given to Hansen’s disease patients, and to preserve and restore the former Kikuchi Medical Jail (criminal detention center exclusively for Hansen’s disease patients) to convert it into a historical museum.
(4) For each of the above three bodies, to permanently preserve related materials and information, and release all collected information and investigation outcomes in regard to the Hansen’s disease isolation hospitals, except for personal information.
(5) For the Supreme Court and the Supreme Public Prosecutor’s Office, to collaborate with the JFBA to conduct human rights training for the prevention of any reoccurrence, to set up a “Prevention Committee on the Reoccurrence of the Hansen’s Disease Problem” (tentative name) consisting of the three legal communities, survivors and researchers.
This year celebrates the 70th anniversary of the establishment of the Constitution, and the JFBA and all of its members are firmly determined to learn lessons from the Hansen’s disease isolated court, to increase our sensitivity to human rights issues, to carry out our mission to protect fundamental human rights as stipulated by the Constitution, and to avoid ever repeating the same mistakes.
October 6, 2017
The Japan Federation of Bar Associations