Article 5
Tribunals and All Other Organs Administering Justice
| 62. |
In Japan, if the people's rights are infringed, they can receive redress by trial. The Constitution of Japan prohibits racial discrimination in Article 14, and stipulates that "no person shall be denied the right of access to the courts" in Article 32. Thus, all people are guaranteed equal right of access to the courts without racial or ethnic discrimination.
The Constitution also stipulates in Article 76, Paragraph 3, that "all judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws" to ensure independent and fair trials as well as the judges' status. Trials and judgment on issues concerning people's rights guaranteed by the Constitution shall be conducted publicly (Article 82). |
The Right to Security of Person and Protection by the State
| 63. |
In Japan, the right to security of a person against violence or injury and protection by the State is guaranteed without racial or ethnic discrimination as follows:
The Constitution of Japan stipulates that "all of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall,...be the supreme consideration " (Article 13); "No person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited." (Article 18); and, "No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." (Article 31), and thereby respects to the utmost people's physical safety. It also provides the principle of equality in Article 14.
The Penal Code deals with crimes, such as riot (Article 106), rape (Article 177), homicide (Article 199), bodily injury (Article 204), violence (Article 208), unlawful meeting and assembly with dangerous weapons (Article 208-2), arrest and confinement (Article 220) and robbery (Article 236). Special Laws, including the Law Concerning Punishment for Physical Violence and Others, also stipulates provisions of crimes regarding violent conduct and thereby penalize violence and injuries. These provisions are applied equally regardless of who the victims are. |
| 64. |
Article 99 of the Constitution imposes on public officials, in particular, the obligation to respect and uphold the Constitution, and Article 36 of the Constitution prohibits infliction of torture by public officers. In line with these provisions, the Penal Code provides crimes including a crime of abuse of authority by a special public officer (Article 194) and the crime of violence or cruelty by a special public officer (Article 195). These officers are subject to strict punishment.
If a law enforcement officer engaged in an investigation of criminal suspects carries out acts of violence or cruelty and others, he/she will also be accused of the above-mentioned crimes, such as the crime of abuse of authority by a special public officer or the crime of violent or cruel conduct by a special public officer, and will be subject to strict disciplinary action. Although the occurrence of such cases is extremely rare, law enforcement officers are required to undergo various training after their appointment, appropriate to their level of experience, in order to acquire insight and further develop their awareness of human rights. Moreover, in the process of discharging their duties, superiors who instruct and oversee junior officers strive to ensure that junior officers are better educated and the ocurrence of such cases may thus be avoided.
Article 709 of the Civil Code stipulates that a person can claim compensation for damages from the offender when the person has suffered damage resulting from violence or physical injury. If such conduct is inflicted by a public official, Article 17 of the Constitution assigns the liability to the State or a public entity by stipulating that "every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal law of any public official." Based on these Articles, the Law Concerning State Liability for Compensation was enacted, which assigns the liability to the State in cases where any public official of the State or a public entity illegally inflicts damage upon a third person, whether intentionally or by negligence, in carrying out his/her duty. |
Ensuring the Security of Foreign Residents in Japan
| 65. |
Foreigners are likely to be isolated from the local residents due to differences in lifestyles or customs and have relatively greater difficulty in obtaining information on the security of the community.
The police give guidance on security in daily life through lectures on security for new foreign residents in Japan and by distributing pamphlets in foreign languages on prevention of crime to prevent foreign residents from suffering criminal damages. The police also offer counseling services to mitigate any concerns foreign residents may have in their daily life.
Following the increase in telephone calls from foreigners, the police are taking appropriate measures such as the placement of foreign language speaking personnel in control centers. |
Political Rights
Suffrage
| 66. |
In Japan, an equal election is guaranteed under the following provisions of the Constitution. The Constitution of Japan holds the sovereignty of the people as one of its fundamental principles and stipulates in Paragraph 1 of Article 15 that people have the inalienable right to choose their public officials and to dismiss them. Paragraph 3 of the said Article guarantees the right to vote to all reaching majority. Article 14 of the said Constitution prohibits racial discrimination, and Article 44 prohibits racial discrimination in the qualifications to be a Diet member.
As the Public Offices Election Law provides that Japanese nationals over twenty years of age have a right to elect a member of the House of Representatives and the House of Councilors based on the principles of the Constitution (Article 9, Paragraph 1), the right to vote is given to all nationals regardless of their race or ethnicity. The said Law also stipulates that Japanese nationals aged over twenty five are eligible to be a member of the House of Representatives and those over thirty, a member of the House of Councilors. (Article 10, Paragraph 1) Thus, the right to be elected is also guaranteed to all nationals regardless of their race or ethnicity.
Regarding local suffrage, the Public Offices Election Law and the Local Government Law guarantee the right to vote to all Japanese nationals over twenty years of age who have resided in the said prefecture or municipality for more than three consecutive months. Japanese nationals over thirty are eligible to run for the office of the governor of a prefecture; those over twenty-five years of age, for the office of the mayor of a municipality. Japanese nationals over twenty-five years of age with the right to vote for local government representatives are eligible to be elected representative of that local government. Thus, under the above-mentioned conditions, the right to vote and the right to be elected are given equally to all Japanese nationals regardless of their race or ethnicity. |
| 67. |
Article 15, Paragraph 1 of the Constitution states the right to vote and the right to be elected as "inalienable rights" of the people, which are interpreted to be applicable only to Japanese nationals, not guaranteed to foreigners. On the other hand, it is possible for foreigners to make requests, complaints and proposals to the appropriate government or local public entities. With the recognition that public management, which is very closely related to the everyday lives of residents, should be carried out by each local government based on the will of the local residents, two local governments have established a foreign citizens representative council. (*10) The council can deliberate and give opinions on local governmental measures, especially those concerning foreigners. Moreover, some local governments have reserved a limited number of seats for foreigners in the councils so that the will of foreign residents, who are now considered to be deeply involved in the local community, is reflected in the local policies. (*11)
*10 Kawasaki City in Kanagawa Prefecture established a Foreign Citizens Representative Council in 1996. The Council consists of twenty-six members with the requirement that representatives be over eighteen years of age and have been registered as foreign residents in the municipality for more than one year. The Council investigates and deliberates a wide variety of issues regarding foreign residents, and reports or gives opinions on them to the Mayor. Their comments are not legally binding, but the municipal organs are requested to respect them. The Tokyo Metropolitan Government also set up a Foreign Residents Council in 1997 to make it possible for foreigners to participate in the administration as equal members in the society.
*11 The Osaka Metropolitan Government, Osaka City and Kanagawa Prefecture each have established a council on the issues of foreign residents in Japan. Half of the members of the council are foreign nationals so that a wide variety of opinions on issues and measures regarding foreigners can be obtained.
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The Right to be Employed in Public Office
| 68. |
Japanese nationality is required for civil servants who participates in the exercise of public power or in public decision-making. On occasion of employment, Article 27 of the National Public Service Law and Article 13 of the Local Public Service Law provide that all nationals are treated equally in application of these Laws and that they are not discriminated against by race or for other reasons. Thus, racial or ethnic discrimination is prohibited. |
Freedom of Movement and Residence
| 69. |
The Constitution provides the principle of equaity in Article 14 and guarantees freedom of movement and residence to the extent that it does not interfere with the public welfare referred to in Article 22. |
The Right to Leave and Enter Japan
| 70. |
The Constitution stipulates equality under the law in Article 14 and the freedom to move to a foreign country in Article 22, Paragraph 2. Thus, freedom to leave and enter Japan is guaranteed to all Japanese nationals regardless of their race or ethnicity. There is no provision in the Constitution about the right to return to the own country, but it is understood to be guaranteed as a matter of course.
The Immigration Control and Refugee Recognition Act provides the procedures of confirmation upon leaving or returning of Japanese nationals (Articles 60 and 61), but this does not restrict leaving or re-entering itself. (Article 13, Paragraph 1, respective Items of the Passport Law stipulate cases of restricting the issuance of passports, such as to criminals or those who are likely to damage Japanese national interests or public security.) |
| 71. |
For foreigners, the freedom to leave Japan is interpreted as guaranteed by Article 22,Paragraph 2 of the Constitution. The Immigration Control and Refugee Recognition Act also stipulates the procedures for confirmation upon a foreigner's departure from Japan (Article 25); confirmation of departure from the country may be temporarily suspended if a foreigner is being prosecuted or under arrest for having committed a serious offense (Article 25-2), but this law itself does not restrict the departure of foreigners.
Foreigners are required to possess valid passports (except for flight crews), obtain appropriate visas for their passports (except nationals of countries with which visa exempted reciprocally by treaty), and fall under any status of residence (See para 16 for residence requirements.) according to the Immigration Control and Refugee Recognition Act. Those who do not satisfy certain conditions for landing are not permitted to land in order to preserve the security of the nation and public order, even if they fall under any status of residence (Article 5 of the said Law). However, people are treated equally based on the principle of Article 14 of the Constitution in the application of these provisions. |
The Right of Nationality
| 72. |
With regard to the acquisition of nationality by birth, Article 2 of Japan's Nationality Law provides that a child shall be a Japanese national in the following cases: when either the father or the mother is a Japanese national at the time of the birth of the child (Item1); when the father who have died prior to the birth of the child was a Japanese national at the time of his death (Item 2); when both parents are unknown or have no nationality in a case where the child was born in Japan (Item3).
The Nationality Law stipulates the acquisition of nationality by making notification in Article 3 and Article 17, Paragraphs 1 and 2. The requirements include, for instance, in Article 3, (1) that a child acquire the status of a legitimate child through the legitimation process, (2) that the child be under twenty years of age, (3) that either the father or the mother be a Japanese national at the time of the child's birth, and in Article 17, Paragraph 1, (1) that a person lose its Japanese nationality by not having reserved the nationality, (2) that a person be under twenty years of age, (3) that a person have a domicile in Japan.
Naturalization and the minimum requirements for naturalization are stipulated in Article 4 and Article 5 of the said Law respectively. The requirements include having a domicile, possessing a full capacity, having an awareness of social conduct, being capable of making a living, and having respect for the provisions of the Constitution as well as in accordance with the principle of prevention of dual nationality.
The Constitution stipulates equality under the law in Article 14. Thus, in any of the above cases, the equal right to acquire nationality is guaranteed regardless of race or ethnicity, as long as the requirements are satisfied. |
The Right to Marriage and Choice of Spouse, The Right to Inherit and the Right to Own Property
| 73. |
The Constitution stipulates that "marriage shall be based only on the mutual consent of both sexes (Article 24, Paragraph 1) and that "with regard to choice of spouse, property rights, inheritance, ...marriage...laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes (Paragraph 2). Based on these provisions, the Civil Code provides conditions for marriage, inheritance and property during marriage, and these rights are equally guaranteed to all people, as Article 14 of the Constitution prohibits racial or ethnic discrimination.
As for private property rights, Article 29, Paragraph 1 of the Constitution stipulates that "the right to own or to hold property is inviolable" and private property rights are equally guaranteed to all people without racial or ethnic discrimination under Article 14 of the Constitution. |
Freedom of Thought, Conscience and Religion
| 74. |
Article 19 of the Constitution stipulates that "freedom of thought and conscience shall not be violated," and guarantees all nationals freedom of thought and conscience. Article 20, Paragraph 1 of the Constitution guarantees freedom of religion to all. Freedom of thought, conscience and religion is equally guaranteed to all nationals, regardless of race or ethnicity based on the principle of equality in Article 14 of the Constitution.
Article 9, Paragraph 1 of the Fundamental Law of Education stipulates that the attitude of religious tolerance and the position of religion in social life shall be valued in education. |
Freedom of Assembly, Association, Expression, and Speech
| 75. |
Article 14 of the Constitution prohibits discrimination on the grounds of race, etc., and Article 21 of the Constitution stipulates that "freedom of assembly and association as well as speech, press and all other forms of expression is guaranteed." Thus, the freedom of assembly, association, and expression is guaranteed to all people. |
Freedom of Choice of Employment
| 76. |
Article 22 of the Constitution stipulates that every person has the freedom to choose employment, to the extent that it does not interfere with the public welfare, and Article 2of the Employment Security Law guarantees that every person can choose an occupation freely, to the extent that it does not interfere with the public welfare. |
| 77. |
As to equal treatment in employment, Article 3 of the Employment Security Law stipulates that no one should be treated discriminatorily on the grounds of race, nationality ... in employment exchange or guidance. The Public Employment Security Offices instruct companies that advertise for employees through its offices to ensure equal employment opportunities regardless of race or ethnicity. The offices also give particularly thorough individual guidance to companies that have acted or are likely to act improperly in the process of employment selection.
The Public Employment Security Offices give guidance to other companies as a general measure, based on the freedom of choice of occupation as stipulated by the Constitution (Article 22, Paragraph 1) and the Employment Security Law (Article 2) and equal treatment (Article 3) stipulated in the said Law, to ensure fair employment in carrying out employment exchange or guidance under Article 8 of the said Law. |
| 78. |
When an unfair discriminatory act takes place on the basis of race or ethnicity at the time of employment or at the workplace itself, the human rights organs of the Ministry of Justice provide counseling services at human rights counseling centers to offer assistance for a settlement. If a case may involve human rights infringement, the said organs investigate the case as an infringement of human rights and ensures equality of all persons by raising the awareness of human rights in the settlement process and allowing the parties concerned voluntarily to cease violations of human rights or to prevent a recurrence of such a violation. |
Labor Conditions
| 79. |
The Employment Insurance Law was established with a view to stabilizing workers' lives and employment by providing necessary compensation if they lose their jobs. All people are treated equally in enjoying rights recognized in the said Law.
The laws concerning labor standards, such as the Labor Standards Law and the Workmens Accident Compensation Insurance Law, apply to all workers without any discrimination based on race or ethnicity. To ensure application of these laws to foreign workers, the Labor Standards Inspection Offices notify all employers that these acts also can apply to foreign workers, and take actions to correct employers' conduct if there is a violation of the law. Counseling offices for foreign workers in the major Prefectural Labor Standards Offices have been established nationwide, which offer counseling services provided by professional counselors. |
Forming/Joining Labor Unions
| 80. |
Article 28 of the Constitution provides that the right of workers to organize and to bargain and act collectively is guaranteed. The Trade Union Law stipulates that the rules of trade unions must include the provision that "in no event, shall anyone be disqualified for union membership on the basis of race, religion, sex, social status or family origin" (Article 5, Paragraph 2). In addition, no restriction or distinction is made on the basis of race or other distinction with regard to the definition of a worker, as Article 3 of the said Law stipulates that workers under Trade Union Law are "those persons who live on their wages, salaries or other remuneration assimilable thereto, regardless of the kind of occupation." Thus, any worker mentioned above can form or join a trade union, regardless of race or ethnicity. |
Housing
| 81. |
The Public Housing Law, the Residential Area Improvement Law, the Urban Development Corporation Law, the Local Housing Supply Corporation Law, and the Housing Loan Corporation Law provide fair procedures and requirements for recruiting tenants, qualifications and selection for public housing.
The Government has notified public housing authorities that the same qualifications for tenant application as those for local Japanese residents should apply to foreigners who have registered domicile and status at their residing municipalities, according to Article 4,Paragraph 1 of the Alien Registration Law. In practice, treatment of foreigners is in full compliance with the said notice.
As to private housing, the Government gives guidance to lessors through lessor organizations, such as the National Rental Housing Management Association, to prevent them from carrying out any discriminatory conduct, including selectivity of tenants on the basis of race or ethnicity.
The human rights organs of the Ministry of Justice make efforts to ensure equality in selecting tenants through campaigns against unfair treatment. |
Public Health, Medical Care, Social Security, Social Service
| 82. |
The laws on public health, medical care, social security, and social services stipulate the prohibition of racial discrimination as well as equality among races.
For example, Article 19, Paragraph 1 of the Medical Practitioners Law and Article 19, Paragraph 1 of the Dentists Law stipulate that medical doctors and dentists must not refuse a patient's request for examination or treatment without "fair reason." Thus, the refusal to examine or treat a patient on the basis of race or ethnicity is prohibited. Article 39, Paragraph 1 of the Health Nurses, Midwives and Nurses Law, likewise, stipulates the prohibition of refusal to assist in the delivery of a child on the basis of race or ethnicity.
Pharmacists must not refuse to fill a prescription without fair reason when a prescription is requested, according to Article 21 of the Pharmacists Law, and thus, they are also prohibited from refusing prescription services on the basis of race or ethnicity.
Moreover, welfare commissioners, who engage in protecting and giving guidance to those who need protection in its promoting social welfare, must not engage in discriminatory treatment on the basis of race or ethnicity in carrying out their duties, under Article 15 of the Social Workers Law.
The Child Welfare Law entrusts guardians, and the Government and local public entities with the responsibility for sound child rearing, in mind and body, with the recognition that all children shall be ensured a sound upbringing. Based on this provision, all administrative measures under the Child Welfare Law, such as admission to child welfare facilities, are extended equally to all children, without discrimination on the basis of race or ethnicity. Child allowances and the child rearing allowances are paid to those who have domiciles in Japan without any racial or ethnic discrimination according to the provisions of the Child Allowance Law and the Child Rearing Allowance Law respectively.
In the National Pension Law and the National Health Insurance Law, it is stated that any person who has a domicile in Japan is eligible for such services regardless of their nationality. Moreover, under the Welfare Pension Insurance Law and the Health Insurance Law, any person employed by an applicable company is also eligible, regardless of nationality.
The Public Assistance Law has the purpose of protecting Japanese nationals who are unable to maintain their livelihood (Article 1, the Public Assistance Law), stipulating that equal and non-discriminatory protection should be given as long as the legal requirements are fulfilled (Article 2). Legally speaking, the said Law does not apply to foreigners who do not have Japanese nationality. However, as an administrative measure, identical protection (livelihood aid, education aid, housing aid, medical aid, child birth aid, unemployment aid, funeral aid) is given, with the same conditions as those for Japanese nationals, to permanent residents and settled residents in Japan who are permitted to live in Japan like Japanese nationals. (The number of foreign residents in Japan under this protection was 28,788 in 1997. See Annex 6 for details.) |
Education
| 83. |
Article 14, Paragraph 1 of the Constitution of Japan sets out the fundamental principle that all people are equal under the law without racial discrimination, and Article 26, Paragraph 1 stipulates that all people shall have the right to receive an equal education according to their ability, as provided for by law. Based on these provisions, Article 3 of the Fundamental Law of Education elucidates the principle of equal opportunities in education, stipulating that all people must be equally offered an opportunity for education according to their ability, and that no person should be racially discriminated against in education. These provisions apply not only to public schools, but also to private schools. The Government gives guidance and instruction to all educational institutuions to ensure equal opportunities for all people without racial or ethnic discrimination in the educational activities offered based on education-related laws, in accordance with the Constitution and the Fundamental Law of Education.
Article 3, Paragraph 1 of the said Law stipulates that no person shall suffer discrimination in education on the basis of race, so that all teachers, including those in private schools, are requested to engage in education in a spirit of impartiality and fairness, and to treat all students equally. In this respect, the Government gives thorough and proper instructions. |
| 84. |
In Japan, children must attend elementary school and lower secondary school for the period from the beginning of the first school year which follows the day after the boys and girls become a full six years of age to the end of the school year during which they become a full fifteen years of age. Foreign children living in Japan are not obliged to attend school, however, they are accepted at various public compulsory education schools, if they so wish. Under the School Education Law, all students who have graduated from a lower secondary or an equivalent school, or who have completed the first term course of secondary school, or whose academic achievement is recognized as being equivalent or higher in accordance with the criteria laid down by the Minister of Education, Science, Sports and Culture, are qualified to be admitted to upper secondary schools, without discrimination of any kind based on race, nationality, etc.
Brochures concerning school entrance are issued by the Municipal Board of Education to parents of a child of school age who does not have Japanese nationality, so that the child will not be deprived of the opportunity for education at public schools.
Foreign children who enter Japanese public elementary and junior high school are treated in the same way as Japanese students based on the principle of equal treatment of all people in school education, including: (1) free tuition; (2) free distribution of textbooks; (3) assistance in attending school; (4) a mutual fund for disaster aid; and, (5) entrance qualifications to a higher school. Foreign students attending school referred to in Article 1 of the School Education Law can learn languages and cultures of foreign countries as extracurricular activities and actually, some local public entities offer such educational opportunities.
Most schools for foreigners, such as international schools, are approved as miscellaneous schools by prefectural governors, and their independence is respected. |
Cultural Activities
| 85. |
Article 13 of the Constitution of Japan stipulates that all people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs. Article 25 of the Constitution stipulates that all people shall have the right to maintain the minimum standards of wholesome and cultured living (Paragraph 1) and that in all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health (Paragraph 2). These provisions, along with the principle of equality under the law in Article 14, Paragraph 1,guarantee equal participation in cultural activities. The Government and local public entities carry out various projects to enable all people to participate in sports/cultural activities without racial or ethnic discrimination. |
Places or Services Intended for Use by the General Public
| 86. |
According to the Environment and Hygiene-Related Businesses Proper Management Act, the Environmental Sanitation Management Guidance Center deals with complaints to safeguard the equal treatment of users and consumers at hotels, restaurants, coffee shops, and theaters. In particular, the Hotel Business Law does not permit hotels to refuse a stay, merely on the basis of race or ethnicity. The Regulations for the Enforcement of the Law for Improvement of International Tourist Hotel Facilities prohibit registered hotels from treating thier guests in a racially discriminatory manner. |
| 87. |
The Railway Operation Act, the Railway Business Law, the Road Transportation Law, the Trucking Business Law, and the Freight Forwarding Business Law stipulate the prohibition of discriminatory treatment by land transportation organizations. The Marine Transportation Law and the Port Transportation Business Law stipulate the prohibition of discriminatory treatment by marine transportation organizations. Moreover, the Aviation Law stipulates the prohibition of discriminatory treatment by air transportation organizations. While the systems differ depending on the Law, there are provisions that, for example, the Government is not to authorize fares or fees in application of the authorization of businesses that treat specific users in discriminatory way, or that the Government must not refuse transportation, except in cases where the transport is against public order and good manners. |
