U.S. Department of State Country Report on Human Rights Practices 1999 - Japan
|Publisher||United States Department of State|
|Publication Date||25 February 2000|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1999 - Japan , 25 February 2000, available at: http://www.refworld.org/docid/3ae6aa7024.html [accessed 29 May 2016]|
Japan is a parliamentary democracy based on the 1947 Constitution. Sovereignty is vested in the people, and the Emperor is defined as the symbol of state. Executive power is exercised by a cabinet, composed of a prime minister and ministers of state, which is responsible to the Diet, a two-house parliament. The Diet, elected by universal suffrage and secret ballot, designates the Prime Minister, who must be a member of that body. The Liberal Democratic Party (LDP), Liberal Party, and the Komeito Party formed the current Government in October. The judiciary is independent.
A well-organized and disciplined police force generally respects the human rights of the populace and is firmly under the control of the civil authorities. However, there continued to be credible reports that police committed some human rights abuses.
The industrialized free market economy is highly efficient and competitive in world markets and provides residents with a high standard of living.
The Government generally respected the human rights of its citizens; however, there continued to be problems in several areas. There continued to be some credible reports that police physically and psychologically abused prisoners and detainees. Officials sometimes are dismissed for such abuse but seldom are tried, convicted, and imprisoned. Violence against women and children, child prostitution, and trafficking in women are problems. Women, the Ainu (Japan's indigenous people), the Burakumin (a group whose members historically are treated as outcasts), and alien residents experience varying degrees of societal discrimination, some of it severe and longstanding. The Ministry of Justice handles complaints of discrimination by issuing instructions recommending that such practices be avoided. However, the Ministry's Human Rights Defense Bureau has a small staff and limited investigative or enforcement powers. Since the administrative system for combating human rights violations is weak, many cases end up in court.
The Justice Ministry's Human Rights Commission continued to work on a 5-year mandate to develop measures to educate citizens with regard to human rights violations. The Commission also is tasked with advising the Education Ministry and the Management and Coordination Agency on how to educate citizens about the importance of respecting human rights. In July the Commission submitted a report calling for greater attention to human rights education, particularly at the municipal level. The Commission cited a number of ongoing human rights problems, including sexual harassment, violence in the home, and discrimination against the elderly, the disabled, minorities, and foreigners. The panel is to submit recommendations on relief measures by 2002.
Section 1. Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
There were no reports of political or other extrajudicial killings.
Cases still are pending in district courts against 8 senior members of the Aum Shinrikyo cult for the killing of 12 persons on the Tokyo subways in 1995.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution provides for freedom from torture and cruel, inhuman, or degrading treatment or punishment; however, reports by several Japanese bar associations, human rights groups, and some prisoners indicate that police sometimes use physical violence, including kicking and beating, as well as psychological intimidation, to obtain confessions from suspects in custody or to enforce discipline. There are also scattered allegations of beatings of detainees in immigration detention facilities. Despite a 1998 court ruling that police beat a suspect in custody in Kanagawa, as of September no disciplinary action has been taken against the policemen involved in the incident. In July Japan ratified the U.N. Convention Against Cruel, Inhuman, or Degrading Punishment.
In Japan confession is regarded as the first step in the rehabilitative process. Although under the Constitution no criminal suspect can be compelled to make a self-incriminating confession, roughly 90 percent of all criminal cases going to trial include confessions, reflecting the priority the system places on admissions of guilt. The Government points out that the high percentage of confessions, like the high conviction rate, is reflective of a higher standard of evidence needed to bring about indictment in the Japanese system. Since a system of arraignment does not exist, a suspect, if indicted, is brought to trial even if that person has confessed to the crime. This process results in a higher conviction rate than would otherwise be the case. There are persistent allegations of coerced confessions.
Appellate courts have overturned several convictions in recent years on the grounds that they were obtained as a result of forced confessions. In addition civil and criminal suits alleging abuse during interrogation and detention have been brought against some police and prosecution officials.
Some human rights groups allege that physical restraints, such as leather handcuffs, have been used as a form of punishment and that some prisoners have been forced to eat and relieve themselves unassisted while wearing these restraints. Ministry of Justice officials state that restraints are used inside the prison only when prisoners have been violent and pose a threat to themselves and others, or when there is concern that a prisoner might attempt to escape. In 1998 the Tokyo District Court ruled that the use of metal and leather handcuffs was not a violation of the Constitution.
Prison conditions meet most minimum international standards; however, prisons in most areas of the country are not heated, and prisoners are given only minimal additional clothing to protect themselves against cold weather. There have been cases of frostbite among the prison population. The Ministry of Justice requested funding in August to install heaters in prison cells nationwide. Many foreign inmates complain that the quantity of food is insufficient and that they are constantly hungry. Prisoners may not purchase or be given supplementary food. The authorities read letters to and from prisoners, and the letters may be censored, or, with a court order, confiscated. All visits with convicted offenders, including visits by legal representatives, are monitored, and prisoners are discouraged strongly from complaining about conditions. Prison officials claim that the " no complaining" rule is designed to keep family members from worrying about their loved ones. For the same reason, the Justice Ministry usually does not inform a condemned inmate's family prior to the person's execution.
The Japanese Federation of Bar Associations and human rights groups have criticized the prison system, with its emphasis on strict discipline and obedience to numerous arbitrary rules. Prison rules remain confidential. Wardens are provided broad leeway in enforcing punishments selectively, including " minor solitary confinement," which may be imposed for a minimum of 1 and not more than 60 days and in which the prisoner is made to sit (for foreigners) or kneel (for Japanese) motionless in the middle of an empty cell. In April a District Court in Hokkaido dismissed a suit filed by an inmate who was kept in solitary confinement for over 13 years.
The Government restricts access to prisons and detention facilities by human rights groups.
d. Arbitrary Arrest, Detention, or Exile
Constitutional provisions for freedom from arbitrary arrest or imprisonment generally are respected in practice. The law provides for judicial determination of the legality of detention. Persons may not be detained without charge, and prosecuting authorities must be prepared to demonstrate before trial that probable cause exists in order to detain the accused. Under the Code of Criminal Procedure, a suspect may be held in police custody for up to 72 hours without judicial proceedings. A judge may extend preindictment custody by up to 20 additional days based on a prosecutor's application. These extensions are sought and granted routinely. If an indictment follows, the suspect is transferred to a criminal detention facility.
During the preindictment phase, under the Criminal Procedure Code, police and prosecutors have the power to control and may limit access by legal counsel when deemed necessary for the sake of the investigation. Counsel may not be present during interrogations at any time before or after indictment. As a court-appointed attorney is not approved until after indictment, suspects must rely on their own resources to hire an attorney before indictment, although local bar associations may provide detainees with one free counseling session. Critics charge that access to counsel is limited both in duration and frequency; the Government denies that this is the case. An attorney is provided at government expense after indictment if the arrested person cannot afford one. In 1997 presentencing bail was available in 15.6 percent of cases.
Human rights groups have criticized the continued detention of Yoshihiro Yasuda, chief legal counsel to Aum Shinrikyo cult leader Shoko Asahara. The Tokyo District Court denied a March request for bail. Amnesty International alleges that Yasuda's arrest, on charges of financial irregularities, called into question the ability of Asahara, who is facing charges stemming from his cult's 1995 subway gas attack, to receive a fair trial.
Bar associations and human rights groups have criticized the use of a " substitute prison system" for prisoners awaiting court hearings. Although the law stipulates that suspects should be held in " houses of detention" between arrest and sentencing, a police detention facility may be substituted at the order of the court. This provision originally was added to cover a shortage of normal detention facilities. According to the most recent Ministry of Justice White Paper on Crime, published in 1995, normal detention facilities were filled to 53 percent of capacity in 1994. Critics charge that allowing suspects to be detained by the same authorities who interrogate them heightens the potential for abuse and coercion. The Government counters that adequate safeguards to prevent abuse, including strong judicial oversight, were built into the system. A 1997 Justice Ministry regulation permits detention house officials to limit the amount of documentation related to ongoing court cases retained by prisoners.
The length of time before a suspect is brought to trial depends on the nature of the crime but rarely exceeds 3 months from the date of arrest; the average is 1 to 2 months.
The Government does not use forced exile.
e. Denial of Fair Public Trial
The judiciary is independent and free from executive branch interference. The Cabinet appoints judges for 10-year terms, which can be renewed until judges reach the age of 65. Justices of the Supreme Court can serve until the age of 70 but face periodic review through popular referendums.
There are several levels of courts, including high courts, district courts, family courts, and summary courts, with the Supreme Court serving as the highest judicial authority. Normally a trial begins at the district court level, and a verdict may be appealed to a higher court, and ultimately, to the Supreme Court.
The Government respects in practice the constitutional provisions for the right to a speedy and public trial by an impartial tribunal in all criminal cases. Although most criminal trials are completed within a reasonable length of time, cases also may take several years to work their way through the trial and appeals process. For example, more than 4 years after the Aum Shinrikyo cult's sarin gas attack in the Tokyo subway killed 12 persons, the trials of cult leader Shoko Asahara and 7 other cult leaders are still underway. During the year, 13 others were convicted for their parts in the subway attack. Four were sentenced to punishments ranging from 3 years' imprisonment to death. In July Masahiro Tominaga was sentenced to 18 years in jail for the 1994 attempted murder of a lawyer and other crimes. More than 20 years after court proceedings were first initiated, in March 1998, the Kobe District Court for the second time acquitted a former teacher accused of a child's murder. The teacher initially was indicted in 1977. The prosecution appealed the first not-guilty verdict in 1985, and the Osaka High Court had ordered a retrial. There were no developments regarding this case during the year, although the Kobe district public prosecutor's office again is appealing the verdict. Critics note that the case has dragged on longer than the 13-year prison sentence the prosecution originally sought and longer than the 15-year statute of limitations on murder cases.
There is no trial by jury. The defendant is informed of the charges upon arrest and assured a public trial by an independent civilian court with defense counsel and the right of cross-examination. The Constitution provides defendants with the right not to be compelled to testify against themselves as well as to free and private access to counsel. However, the Government contends that the right to consult with attorneys is not an absolute one and can be restricted if such restriction is compatible with the spirit of the Constitution. Access is sometimes abridged in practice. For example the law allows prosecutors to control access to counsel before indictment, and there are persistent allegations of coerced confessions (see Section 1.c.). Defendants are protected from the retroactive application of laws and have the right of access to incriminating evidence after a formal indictment has been made. However, the law does not require full disclosure by prosecutors, and material that the prosecution does not use in court may be suppressed. Critics claim that legal representatives of defendants do not always have access to all relevant material in the police record needed to prepare their defense. A defendant who is dissatisfied with the decision of a trial court of first instance may, within the period prescribed by law, appeal to a higher court.
No guidelines mandate the acceptable quality of communications between judges, lawyers, and non-Japanese speaking defendants, although the Supreme Court publishes handbooks explaining the legal procedures and terms for court interpreters. No standard licensing or qualification system for certifying court interpreters exists, and a trial may proceed even if the accused does not understand what is happening or being said. Human rights groups allege that there is a chronic shortage of qualified court interpreters, particularly for non-English speaking defendants in rural areas. Foreign prisoners frequently claim that police urge them to sign statements in Japanese that they cannot read and that the police interpreter cannot translate adequately.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
Under the Constitution, each search or seizure must be made upon a separate warrant issued by a judge. Standards for issuing such warrants exist to guard against arbitrary searches. An opposition Diet member filed a complaint in July with the Tokyo Public Prosecutor's office alleging that police wiretapped his telephone. A wiretapping law passed by the Diet in August established strict guidelines for the use of wiretapping and imposed penalties for the unsanctioned use of wiretaps by police authorities.
In 1997 the Government acknowledged that nearly 16,500 disabled women were sterilized without their consent between 1949 and 1992. In its acknowledgment the Government stated that it did not plan to apologize or pay compensation to these women or to further investigate the program, despite the demands of the National Federation for the Mentally Handicapped and several other groups representing women and the disabled. A Ministry of Health official said that no apology was planned because the procedure was legal at the time. The Eugenic Protection Law, revoked only in 1996, allowed doctors to sterilize persons with mental or physical disabilities or certain hereditary diseases without their consent, after the approval of committees appointed by local governments. Women's and disabled persons advocacy groups still are pressing for a government investigation into all sterilization cases and for a formal apology and compensation.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and of the press, and the Government respects these rights in practice. An independent press, an effective judiciary, and a functioning democratic political system combine to ensure freedom of speech and of the press.
However, recent cases appear to indicate that certain types of professionals, such as teachers and jurists, are subject to limitations on their freedom of speech. In August the Education Ministry asserted that the Government retains the right under the Local Public Service law to punish teachers who refuse to teach the official meaning of the lyrics to Japan's national anthem, " Kimi ga Yo." In July an elementary school music teacher in Tokyo received a reprimand for refusing to play the anthem at a school graduation ceremony. In December 1998, the Supreme Court upheld the reprimand of a judge who took part in a meeting organized by a citizen's group opposed to a wiretapping bill, citing the Court Law, which bans judges from engaging in " aggressive political activity," on the grounds that the judge's presence at the meeting " created a clear impression there is a judge opposing the bill." According to a Supreme Court official, this was the first case of a judge being reprimanded for political activity.
Academic freedom is protected, except in the case of school textbooks. The Education Ministry has the authority to censor or order revisions to elementary, middle, and high school textbooks. In 1997 the Supreme Court ruled that state censorship of textbooks did not violate the constitutional provisions for freedom of expression. In June the Education Ministry cautioned five textbook publishers to show greater respect for Japan's flag and anthem in their next editions.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of assembly and association, and the Government respects these rights in practice.
c. Freedom of Religion
Freedom of religion and the separation of state and religion are provided for in the Constitution and are respected in practice. While Buddhism and Shintoism are the two major religions, there are many others, including several Christian denominations. Some temples and shrines continue to receive public support as national historic or cultural sites. However, this situation may change in the wake of a 1997 Supreme Court ruling that a prefectural government may not contribute public money to only one religious organization, if the donations supported, encouraged, and promoted a specific religious group. In 1998 the Kochi District Court ruled that using village government money to repair two Shinto shrines was tantamount to allocating public funds to a religious group and therefore unconstitutional.
The Government does not require that religious groups be licensed. However, to receive official recognition as a religious organization, which brings tax benefits and other advantages, a group must register with local or national authorities as a " religious corporation." In practice almost all religious groups register. Following the 1995 Aum Shinrikyo terrorist attacks, a 1995 amendment to the Religious Corporation Law gave government authorities increased oversight of religious groups and required greater disclosure of financial assets by religious corporations. The amendment allows authorities to more effectively monitor the operations of registered religious corporations. The Ministry of Education's Cultural Affairs Agency estimates that nearly 5,000 religious groups appear dormant. In 1998 a district court ordered the dissolution of a registered Shinto religious group that had been dormant since 1982. This was the first time that a court had approved a request by the Education Ministry to dissolve a religious group since the Religious Corporation Law went into effect in 1951.
In 1998 the Nagoya High Court upheld a lower court ruling ordering the Toyama prefectural government to pay monetary damages to 88 followers of a Buddhist sect for violating their rights by ignoring for more than 10 years their application for certification as a religious sect.
The only religion under active government surveillance is the Aum Shinrikyo cult. Aum Shinrikyo lost its legal status as a religious organization in 1996 following the indictment of several cult members. In May 1998, a court sentenced Ikuo Hayashi, a leader of the Aum Shinrikyo cult, to life imprisonment for the killing of 12 persons in that incident. In October 1998, a court sentenced to death another leader of the Aum Shinrikyo cult, Kazuaki Okazaki, for the 1989 killings of four persons, including an antisect lawyer, his wife, and their 1-year-old son. Cases still are pending in district courts against eight senior Aum members, including cult leader Shoko Asahara. During the year, 13 members of the cult were convicted for taking part in the subway gas attack and other criminal activities and given sentences ranging from 3 years in jail to death. In response to reports of increased cult fundraising and recruitment activities, local police and communities have taken measures against cult members and chapters including denying residency permits to cult leader Asahara's children. In December the Diet passed a set of bills that allow the authorities to crack down on the group and force it to pay compensation to victims of its past crimes.
Members of the Unification Church and Jehovah's Witnesses have alleged that police do not act in response to allegations of forced deprogramming of church members. They also claim that police do not enforce the laws against kidnaping when the victim is held by family members, asserting that Unification Church members are subjected to prolonged arbitrary detention by individuals, who are not charged by police.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Citizens have the right to travel freely both within the country and abroad, to change their place of residence, to emigrate, and to repatriate voluntarily. Citizenship may be forfeited by naturalization in a foreign country or by failure of persons born with dual nationality to elect Japanese citizenship at the required age.
Asylum and refugee policy is in accordance with the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol. In recent years, the Government has granted asylum to those claiming fear of persecution if they return to their homeland in only a small number of cases. It believes that most persons seeking asylum in the country do so for economic reasons. According to the U.N. High Commissioner for Refugees (UNHCR), Japan granted asylum to only 15 persons (4.3 percent of applicants) in 1998.
The Government has shown flexibility in dealing with visa extensions for Chinese student dissidents, although it continues to be reluctant to grant permanent asylum. Burmese asylum applicants have complained that asylum cases can go on pending for years without a formal decision.
The Government's 60-day rule requires applicants to appear at an immigration office within 60 days of arrival or within 60 days of learning that they are likely to be persecuted in their home country. Individuals who do not present their applications within the 60-day time frame due to extenuating circumstances may apply for an exception. An alien who is recognized as a refugee has access to educational facilities, public relief and aid, and social welfare benefits. An alien who is denied refugee status may appeal the decision to the Ministry of Justice. Rejected applicants also may take their cases to court if Ministry authorities do not recognize their objections. In an effort to make procedures clearer to applicants, the Government distributes an English-language pamphlet to those interested in the asylum process.
While the Government sometimes grants first asylum, there are no standard procedures established, and the Justice Ministry and the Foreign Affairs Ministry jointly decide upon such grants on a case-by-case basis. In response to a 1998 appeal by the UNHCR, the Justice Ministry in May reversed an earlier decision to deny asylum to a group of Burmese prodemocracy activists. In April 1998, a pregnant Chinese woman accused of illegally entering the country filed for refugee status on the grounds that she would be forced to undergo an abortion if she returned to China, in accordance with China's one-child family policy. In July 1998, the Matsue District Court rejected the prosecution's request that she be imprisoned for 1 year for illegal entry. After her release from detention, the women gave birth, abandoned the child, and went into hiding.
There were no reports that persons were forced to return to a country where they feared persecution.
Section 3. Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens have the right to change their government peacefully and are able to exercise this right in practice through frequent, free, and fair elections on the basis of universal suffrage by secret ballot. In 1998 the Diet granted citizens living overseas the right to vote for candidates in national elections in races based on proportional representation. In August the Diet extended this privilege to fishermen and mariners.
A parliamentary democracy, Japan is governed by the political party or parties able to form a majority in the lower house of its bicameral Diet. The Liberal Democratic Party, the Liberal Party, and the Komeito Party formed the current Government in October.
There are no legal impediments to women's participation in government and politics, but cultural attitudes are not favorable to their participation, and they are underrepresented in both areas. As of August, women held 24 seats in the 500-member lower house of the Diet (4.8 percent), and 43 seats in the upper house (17.1 percent), the highest number since 1950. There is 1 woman in the 18-member Cabinet.
Section 4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A number of local and international human rights organizations function freely, without governmental restrictions or impediments, investigating and publishing their findings on human rights cases. Government officials generally are cooperative and responsive to their views, although the Government restricts access to prisons and detention facilities by human rights groups (see Section 1.c.).
The Justice Ministry's Human Rights Commission continued to work on a 5-year mandate to develop measures to educate citizens with regard to human rights violations. The Commission also is tasked with advising the Education Ministry and Management and Coordination Agency on how to educate citizens about the importance of respecting human rights. In July the Commission submitted a report calling for greater attention to human rights education, particularly at the municipal level. The Commission cited a number of ongoing human rights problems, including sexual harassment, violence in the home, and discrimination against the elderly, the disabled, minorities, and foreigners. The panel is to submit recommendations on relief measures by 2002.
Section 5. Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution prohibits discrimination on the basis of race, creed, sex, social status, or family origin, and, in general, the Government respects these provisions.
According to a 1998 report from the Prime Minister's Office of Gender Equality, there were 1,755 rapes and 4,398 indecent assaults reported in 1997, down slightly from previous years. However, violence against women, particularly domestic violence, often may go unreported due to social and cultural concerns about shaming one's family or endangering the reputation of one's spouse or offspring. Typically, victimized women return to the home of their parents rather than file reports with the authorities. Therefore, National Police Agency statistics on violence against women undoubtedly understate the scope of the current situation. According to a survey conducted by the Prime Minister's Office in 1998, one in three women reported some form of physical abuse in the home. Frequent complaints by female commuters that they have been groped or otherwise molested on crowded trains led the Tokyo Metropolitan Police Department to set up special molestation complaint offices at three Tokyo train stations. Many local governments are responding positively to a need for confidential assistance by establishing special women's consultation departments in police and prefectural offices.
According to the Ministry of Justice, there were 126,982 foreign women who overstayed their visas in 1998. Trafficking in women is a problem (see Section 6.f.).
A revision to the 1997 Equal Employment Opportunity (EEO) Law intended to address problems of sexual harassment and discrimination against women went into effect in April. Sexual harassment in the workplace is widespread, as evidenced by a 1996 report compiled by the Japanese Trade Union Confederation (RENGO) in which 40 percent of working women reported that they had experienced some form of sexual harassment. According to the survey, 2 percent of respondents said that they were forced to have a sexual relationship. A 1997 survey by the Ministry of Labor's working group on the implementation of the revised EEO Law reported that 62 percent of women claimed to been experienced at least one act of sexual harassment. The revised EEO Law includes measures to identify companies that fail to prevent sexual harassment, although it does not include punitive measures to enforce compliance. The new law's only penalty is that names of companies that practice sexual discrimination can be publicized. The Ministry of Labor does not enforce compliance through fines or other punitive penalties. Also in 1997, the Government revised the Labor Standards Law to allow an arbitration committee to initiate procedures to help ensure the rights of female workers at the worker's request, without first having to obtain approval from both management and the worker's union.
Despite public awareness of discrimination against women and sexual harassment, there is no indication that incidents of discrimination and sexual harassment are decreasing. Women make up 40 percent of the labor force, and women between the ages of 15 and 64 have a labor force participation rate of 51 percent. According to a National Personnel Authority survey conducted in the winter of 1997, roughly 36 percent of female civil servants reported being sexually harassed by their direct superiors, and over 50 percent reported being harassed by supervisors of other sections. One in six women said that their bosses had pressured them into a sexual relationship. More than 20 percent of the women surveyed said that they were unable to work efficiently as a result of harassment and wanted to move to another office or change jobs. However, according to a Management and Coordination Agency survey conducted in 1996, 93 percent of companies surveyed had not taken any preventive measures against sexual harassment. Seventy-five percent of the firms stated that they felt no need to take such measures. In March 1998, the National Personnel Authority distributed 60,000 pamphlets to civil servants in all ministries and agencies in an effort to curb sexual harassment at government offices. A growing number of government entities are establishing hot lines and designating ombudsmen to handle complaints of discrimination and sexual harassment.
In December the governor of Osaka, Isamu Yamada, resigned when prosecutors filed charges against him for molesting a 21-year-old campaign worker. The court ordered him to pay the campaign worker $107,000 (11,235,000 yen), which was the largest award ever in the country in a sexual harassment suit. Women's groups viewed the result as a positive step forward in the effort to combat sexual harassment.
The Constitution prohibits sexual discrimination and provides for individual dignity and the essential equality of the sexes in the family. The Labor Standards Law forbids wage discrimination against women. Under the revised EEO Law, women may work overtime shifts for the first time.
Although the law prohibits wage discrimination against women, in 1997 female workers on average earned only 63 percent of average male earnings. Much of this disparity results from the " two-track" personnel administration system found in most larger companies. Under this system, newly hired employees are put into one of two categories: Managerial track (those engaged in planning and decisionmaking jobs and with the potential to become top executives), or clerical track (those engaged in general office work). According to an April survey by the Prime Minister's Office, women held 9.3 percent of managerial positions. A 1998 Labor Ministry survey found that 42.2 percent of companies with two-track systems stated they considered both men and women for managerial track positions. According to the National Personnel Authority, as of 1995 women made up 16 percent of all national government workers, but held only 4 percent of top (director level and higher) government posts. According to the Home Ministry, women constituted 31 percent of all local government workers but held only 3 percent of top local government positions. In July the Osaka District Court awarded $273,000 (30 million yen) to a woman for wage discrimination over a 16-year period. Female workers have suffered disproportionately from the continued sluggishness of the economy. A 1998 survey by the Ministry of Labor found that the job placement rate for female college graduates was 90.5 percent, compared with 94.6 percent for men.
In addition to discrimination, the traditional male/female division of labor at home places disproportionate burdens on working women. According to a 1997 report from the Prime Minister's Office on Gender Equality, women perform 90 percent of the housework and child rearing, while men do 10 percent. The report found that there was little difference in the time spent on housework by men whose wives had jobs and those whose wives did not work outside the home.
In 1997 the Government acknowledged that nearly 16,500 disabled women were sterilized without their consent between 1949 and 1992 but refused to apologize or pay compensation to those women (see Section 1.f.).
In 1993 the government spokesperson publicly acknowledged and apologized for the former Imperial Government's involvement in the army's practice of forcing as many as 200,000 women (including Koreans, Filipinos, Chinese, Indonesians, Dutch, and Japanese) to provide sex to soldiers between 1932 and 1945. The Government consistently refused to pay government compensation to individual victims, arguing that postwar treaties already settled all war claims.
The " Asian Women's Fund," (AWF) was established in 1995 as a private, government-sponsored fund to compensate former " comfort women." The AWF supports three types of projects: Providing direct compensation payments to individual victims; providing medical and welfare assistance to individual comfort women; and funding projects to improve the general status of women and girls. Projects in the first category are funded by private donations, while the second and third types of projects are financed by the Government and administered by the AWF. As of August, the AWF had collected donations totaling approximately $4.36 million (480 million yen) and given lump-sum payments of almost $18,200 (2 million yen) each and a letter of apology signed by the Prime Minister to more than 130 women. These women also received medical and welfare assistance from the AWF. In 1998 the AWF reached an agreement with a Dutch affiliate to start compensation payments to former Dutch comfort women. Government officials estimate that up to 100 Dutch women were forced to provide sexual services during World War II.
The Government's refusal to take more than " moral responsibility" and to pay direct compensation continues to draw international criticism. In July nine former comfort women from Taiwan filed a suit demanding $99,000 (10 million yen) each directly from the Japanese Government as compensation for being forced to provide services. Similar suits previously have been filed by women from China, Korea, and the Philippines. In 1998 the Yamaguchi District Court ordered the Government to pay $2,542 (300,000 yen) in state compensation to three Korean former sex slaves for neglecting its constitutional duty to enact compensation legislation following the Government's 1993 admission. However, the Court denied the plaintiffs' demand for an official government apology.
This was the first court judgment rendered in favor of foreign war victims. Five other cases concerning former comfort women are pending in Tokyo District Court. The plaintiffs are seeking $169,492 (20 million yen) each in damages and an official apology from the Government. In May 1998, the South Korean Government made a lump-sum payment of $27,072 (35.6 million won) each to over 130 documented Korean victims on condition that they not receive redress from the AWF (although more than 10 of these victims accepted AWF money afterwards). The South Korean program excluded the seven Korean women who had already received compensation from the AWF. The AWF project was suspended in South Korea in July 1998 and remains suspended.
In August 1998, the U.N. Subcommission on Prevention of Discrimination and Protection of Minorities issued a report that included a recommendation that the Government provide state compensation to these women and prosecute those responsible for setting up and operating " comfort stations" during World War II. In March a committee of the International Labor Organization called on the Government to take swift measures to compensate former comfort women. In August a subcommittee of the U.N. Commission on Human Rights issued a nonbinding resolution calling for governments to pay compensation for wartime slavery even when subsequent international agreements absolve bilateral claims. The Foreign Ministry interprets the resolution as referring only to acts subsequent to the subcommittee's decision.
The Government is committed to children's rights and welfare, and in general, the rights of children are protected adequately. Boys and girls have equal access to health care and other public services. Education is free and compulsory through the lower secondary level. Education is free and universally available at the upper secondary level through the age of 18.
In recent years, both the Government and society in general appeared to take a lenient attitude toward teenage prostitution and dating for money, which may or may not have involved sexual activities. However, in May the Diet passed a law, which went into effect in November, banning sex with children under age 18 as well as the production, sale, or distribution of child pornography. The law was passed following heightened public attention to a growing problem of teenage prostitution and international criticism over Japan's lax laws on child pornography. According to National Police Agency statistics, 40 percent of the over 3,000 pornographic Internet sites based in Japan contained images of minors. In 1998 INTERPOL estimated that 80 percent of Internet sites with child pornography originate in Japan.
In 1998 the U.N. Committee on the Rights of the Child recommended that Japanese children be protected from corporal punishment and bullying at school and from exposure to violence and pornography in the media and on the Internet.
In August 1998, the Government revised the law regulating " adult" entertainment to require operators of pornographic home pages and suppliers of images to register with local safety commissions and to ban offering such pages to persons under the age of 18. The revisions took effect in April.
In July parents of a middle school student alleged that two teachers severely beat their daughter after falsely accusing her of committing an infraction off campus. According to a 1998 Management and Coordination Agency study, one in three elementary and junior high school students has been bullied, but more than one-third of the victims did not report the bullying to anyone. Education experts suggest that pressures at home and school to excel academically may be contributing to the increase in student violence and long-term (30 days or more) absenteeism. In 1994 the Ministry of Justice established the Office of the Ombudsman for Children's Rights to cope with bullying and other children's issues. In addition to compiling statistics on bullying and consulting with various groups concerned with children's welfare, the Office of the Ombudsman provides counseling services for children 18 years of age and younger who have been victims of bullying.
In recent years, the problem of severe bullying, or " ijime," has received greater public attention. At elementary and junior high schools, bullying most often involves verbal abuse, with physical abuse occurring more often at the high school level. However, because many cases go unreported, it is difficult to determine the exact number. Teachers also increasingly are becoming the targets of student violence.
Public attention also is focused increasingly on reports of frequent child abuse in the home. An August survey by a social welfare organization reported that 40 percent of mothers committed abuse or acts bordering on abuse against their children. A June report by the Ministry of Health and Welfare found that from 1992 to 1996, 328 children died of abuse or neglect. A separate report by the Ministry released in March warned that recent cuts in funding by local governments to centers handling child abuse cases was exacerbating the problem, particularly since caseloads at counseling centers nearly doubled from 1988 to 1996.
Under juvenile law, juvenile suspects are tried in family court and are not allowed a retrial. Family court proceedings are not open to the public, a policy that has been criticized by family members of juvenile crime victims. The number of juveniles arrested or taken into protective custody in 1998 was up 3.1 percent, according to the National Police Agency, despite a drop in the overall juvenile population. Criminal offenses committed by those under age 14, who are exempt from criminal liability, rose by 4.4 percent. Minors accounted for nearly half of all crimes committed in 1998. In March the Cabinet endorsed a proposal to revise the Juvenile Law to allow public prosecutors, who previously were barred from family court proceedings, to try serious cases in family court, and to appeal family court decisions to a higher court.
People with Disabilities
The law does not mandate accessibility to buildings for the disabled; however, 1994 legislation on construction standards for public facilities allows operators of hospitals, theaters, hotels, and similar enterprises to receive low-interest loans and tax breaks if they build wide entrances and elevators to accommodate those with disabilities. There are an estimated 2.9 million physically disabled and roughly 2 million mentally disabled persons. Although not generally subject to overt discrimination in employment, education, or in the provision of other state services, the disabled face limited access to public transportation, " mainstream" public education, and other facilities. Under civil law, persons with hearing problems or speech impediments cannot create valid wills because they cannot " convey orally" to a notary the contents of a will or affirm that the text the notary reads back to them is correct.
The Deliberation Panel on the Employment of the Handicapped, which operates within the Ministry of Labor, has mandated since 1976 that private companies with 300 or more employees hire a fixed minimum proportion of disabled persons. The penalty for noncompliance is a fine. A 1998 cabinet directive ordered private companies to raise the proportion of physically disabled persons in their work force from 1.6 to 1.8 percent and raised the percentage of disabled persons among civil servants from 2 to 2.1 percent. However, there is evidence that only half the companies covered by the directive comply with the law. The ongoing economic recession hit disabled employees particularly hard, with the number fired from their jobs increasing by 40 percent in 1998 over the previous year.
An amendment to the Law to Promote the Employment of the Handicapped to include the mentally disabled took effect in 1998. The amendment also loosened the licensing requirements for community support centers that promote employment for the disabled, and it introduced government subsidies for the employment of mentally disabled persons in part-time jobs. In 1997 a former factory owner in Ibaraki prefecture who had received generous government subsidies was sentenced to 3 years' imprisonment for physically abusing mentally disabled workers at his plant and for withholding portions of their salaries. A March survey by a disabled citizens support group showed that 44 percent of the staff at homes for mentally disabled persons admitted to mistreating those under their care.
In 1995 the Headquarters for Promoting the Welfare of Disabled Persons, set up by the Prime Minister's Office, recommended that municipalities draw up formal plans for the care of disabled citizens by the end of March 1997. In 1996 the Ministry of Health and Welfare also instructed local governments to set numerical targets for the number of home help providers and care facilities allocated to the disabled. However, according to newspaper reports, only one-third of the nation's municipalities currently have formal care plans for disabled citizens.
In 1997 the Government acknowledged that nearly 16,500 disabled women were sterilized without their consent between 1949 and 1992 but refused to apologize or pay compensation to those women (see Section 1.f.).
The Ainu are a people descended from the first inhabitants of Japan. The Ainu Association of Hokkaido estimates their total number at 50,000, less than 0.05 percent of the country's 124 million population. Almost all Ainu live on Hokkaido, the northernmost of the country's four main islands. Their primary occupations are fishing, small-scale farming, and jobs in the tourism industry. Under an 1899 law, the Government pursued a policy of forced assimilation, imposing mandatory Japanese-language education and denying the Ainu their right to continue traditional practices. The law also left the Ainu with control of only approximately 0.15 percent of their original land holdings.
In 1993 two Ainu filed a suit against the Government, challenging its right to expropriate their land, which the Ainu consider sacred, to build a dam. In 1997 the Sapporo District Court ruled that the Government had expropriated the land illegally, but did not order the Government to return the land to the plaintiffs because the dam already had been completed. However, the Court ruled that the Ainu were a minority aboriginal race.
Ainu Diet member Shigeru Kayano was instrumental in the Diet's passage of the Law To Promote Ainu Culture in 1997. The law officially recognized the Ainu as an ethnic minority and required all prefectural governments to develop basic programs for promoting Ainu culture and traditions. It canceled a series of previous laws that discriminated against the Ainu, including the 1899 law. With the new law, the Government for the first time acknowledged the existence of an ethnic minority in the country. However, the law stopped short of recognizing the Ainu as the indigenous people of Hokkaido, and also failed to address whether they deserved special rights as a distinct ethnic group. The new law did not mandate civil rights protection for the Ainu. A nonbinding accompanying resolution referred to the Ainu as a legal Japanese minority. A 1998 report submitted by the U.N. Special Rapporteur to the 16th U.N. Working Group on Indigenous Populations stated that the Ainu had never entered into a consensual juridical relationship with any state and stated that the lack of such an agreement deprived them of their rights. Many Ainu criticize the Law to Promote Ainu Culture for not advancing Ainu political rights and criticize the Government for not providing funds for noncultural activities that would improve Ainu living conditions or financial status.
The Ainu continue to face societal discrimination while engaging in an uphill struggle against complete assimilation. An Ainu-language newspaper was established in 1997. In April 1998, a local Hokkaido radio station began broadcasting a weekly 15-minute Ainu-language program. In July 1998, the Japan Ainu Association, a nationwide organization of Ainu, was established to lobby the Government for economic assistance and greater social welfare benefits for Ainu throughout the country.
The ethnocentric nature of Japanese society, reinforced by a high degree of cultural and ethnic homogeneity and a history of isolation from other cultures, impedes the integration of minority groups. This primarily affects Burakumin, Koreans, and alien workers.
The Burakumin (descendants of feudal era " outcasts" who practiced " unclean" professions such as butchering and undertaking), although not subject to governmental discrimination, are frequently victims of entrenched societal discrimination, including restricted access to housing and employment opportunities. They are estimated to number approximately 3 million, but most prefer to hide their identity. Beginning in 1969, the Government introduced with some success a number of social, economic, and legal programs designed to improve conditions for the Burakumin and hasten their assimilation into mainstream society. However, in recent years, some within the Burakumin community have questioned whether assimilation is an appropriate goal. When the basic legislation to provide funding for Burakumin programs expired in 1997, the Government enacted legislation effective for 5 years that retains 15 of the original 45 programs for Buraku communities. One of these programs is aimed at completing housing plans already in progress.
In 1997 the Buraku Liberation League rewrote its manifesto for the first time in 13 years, placing less emphasis on class struggle and more emphasis on civil rights, social welfare, and the environment. The new platform also replaced the term Burakumin (hamlet people) with Buraku Jumin (hamlet residents), to try to debunk the false concept that these people are a different race from other Japanese. The platform was adopted at a national convention.
According to the Ministry of Justice, there were nearly 1.5 million legal foreign residents as of December 31, 1997, accounting for 1.18 percent of the population. Of these approximately 645,400 were ethnic Koreans, followed by 252,200 Chinese, and 233,300 Brazilians. The number of Korean residents has been decreasing steadily as Korean nationals naturalize or marry Japanese, which allows their children to gain Japanese citizenship automatically. Despite improvements in legal safeguards against discrimination, Korean permanent residents (most of whom were born, raised, and educated in Japan) still are subject to various forms of deeply entrenched societal discrimination.
By law aliens with 5 years of continuous residence are eligible for naturalization and the simultaneous acquisition of citizenship rights, including the right to vote. However, in practice most eligible aliens choose not to apply for citizenship, in part due to fears that their cultural identity thereby would be lost. Obstacles to naturalization include broad discretion available to adjudicating officers and great emphasis on Japanese language ability. Naturalization procedures also require an extensive background check, including inquiries into the applicant's economic status and assimilation into Japanese society. Koreans are given the option of adopting a Japanese surname. There have been allegations in the media that applications are turned down routinely. The Government defends its naturalization procedures as being necessary to ensure the smooth assimilation of foreigners into Japanese society. Alien permanent residents may live abroad up to 5 years without losing their right to permanent residence.
In 1995 the Supreme Court ruled that the Constitution does not bar permanent foreign residents from voting in local elections. However, the Court also ruled that existing laws denying voting rights to foreign residents are not unconstitutional. In February the Osaka High Court rejected an appeal by 43 Korean permanent residents demanding the right to vote in local elections, stating that any decision on voting rights for foreign residents should be made by the national Government. In March the Osaka Prefectural Assembly passed a measure granting permanent residents local suffrage, becoming the third prefecture to pass such a bill.
Under the School Education Law, students attending Chinese, Korean, or other non-Japanese schools are not eligible to take national university examinations. However, in August the Education Ministry announced that beginning in 2001, graduates of non-Japanese schools would be eligible to take national university examinations if they pass a state-run high school equivalency test. Although a number of local governments provide subsidies to Korean schools, the central Government does not.
In 1993 the Government halted the fingerprinting of permanent foreign residents, and in August the Diet passed a revised law to end the practice officially. Instead of fingerprinting, the Government established a family registry system that uses the resident's picture and signature and contains information on parents and spouses living in the country, a system similar to that used for Japanese nationals. All foreign residents still are required to carry alien registration certificates at all times, but the revised law reduces the penalties imposed on those found without documentation. In June two Korean residents returned their residency cards to protest the law's failure to fully eliminate the alien card requirement.
In 1953 the Government decreed that public servants with administrative authority and the ability to influence public opinion must be Japanese. Noncitizens were prohibited from taking examinations for local government positions. Nevertheless, some municipal governments began lifting restrictions on noncitizen civil servants. In 1996 the Home Affairs Ministry reversed the long-held national policy of opposition to localities lifting the nationality clause and instructed local governments to decide at their own discretion. However, the Ministry instructed local governments to restrict noncitizens' access to jobs that involved the exercise of public authority and formation of public opinion. The directive also required local governments to clearly state which jobs were closed to noncitizens. Some of the jobs considered off limits include tax collection, construction permit issuance, sanitation inspection, and firefighting.
Several local governments already have changed their rules in response to the Government's new position. In 1997 the cities of Kawasaki, Yokohama, Osaka, Kobe, and Hisai, and Kanagawa and Koichi Prefectures opened many jobs to noncitizens. The Osaka municipal government introduced new guidelines allowing noncitizens with permanent residency to take jobs in 276 fields, including public relations, engineering, and social welfare services. Under the new guidelines, noncitizens can be promoted to section chief or higher within the specified fields. In 1998 the Hakodate municipal government announced that in fiscal year 1999 it would allow foreign residents to take employment tests for all city jobs except firefighters. According to a 1997 joint survey conducted by the All Japan Prefectural and Municipal Workers Union and the Korean Residents Association in Japan, 19.8 percent of local governments still forbid the hiring of noncitizens.
Critics complain that opening some but not all jobs to noncitizens perpetuates institutional discrimination and the perception that noncitizen residents cannot be trusted to act in the community's best interest. The system also allows each local government to develop it own rules without uniformity being imposed by the national Government.
Section 6. Worker Rights
a. The Right of Association
The Constitution provides for the right of workers to associate freely in unions. Approximately 12 million workers, 22 percent of all employees, belong to labor unions. Unions are free of government control and influence. Most unions are involved in political activity as well as labor relations, but they are not controlled by political parties. The Japanese Trade Union Confederation, which represents 7.6 million workers and was formed in 1989 through the merger of several confederations, is the largest labor organization. There is no requirement for a single trade union structure, and there are no restrictions on who may be a union official. Members of the armed forces, police, and firefighters are not permitted to form unions or to strike. These restrictions have led to a long-running dispute before the International Labor Organization's (ILO) Committee on the Application of Conventions and Recommendations over observance of ILO Convention 98 concerning the right to organize and bargain collectively. The Committee has observed that these public employees have a limited capacity to participate in the process of determining their wages and again in November asked the Government to consider any measures it could take to encourage negotiations with public employees.
The right to strike, implicit in the Constitution, is exercised. During 1998 105,000 workdays involving 42,000 employees were lost to strikes. The law prohibits retribution against strikers and is enforced effectively. Public employees do not have the right to strike.
Unions are free to affiliate internationally and are active in international bodies, most notably the International Confederation of Free Trade Unions, and maintain extensive international contacts.
b. The Right to Organize and Bargain Collectively
The Constitution provides unions with the right to organize, bargain, and act collectively. These rights are exercised freely, and collective bargaining is practiced widely. The annual " Spring Wage Offensive," in which individual unions in each industry conduct negotiations simultaneously with their firms, involves nationwide participation. Management usually consults closely with its enterprise union. However, trade unions are independent of management and aggressively pursue the interests of their workers. The law prohibits antiunion discrimination, and adequate mechanisms exist for resolving cases that occur, including the reinstatement with back wages of any workers fired for union activities. However, the collective bargaining rights of public employees are limited. The Government determines the pay of government employees based on a recommendation by the independent National Personnel Authority.
There are no export processing zones.
c. Prohibition of Forced or Compulsory Labor
The Constitution provides that no person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited. Although children are not specified in the provision, this legal prohibition against forced or compulsory labor applies equally to adults and to children. Although in general forced or bonded labor does not occur, women are trafficked to Japan and coerced into prostitution (see Section 6.f.).
During the year, Allied prisoners of war filed individual and class action suits against Japanese companies seeking compensation for forced labor during World War II. The suits were filed overseas, including in the United States. Survivors and families of Chinese and Korean workers also continue to press claims for damages and compensation for their forced labor during WW II, both in Japanese civil courts and in complaints to the ILO. In September the Tokyo High Court ordered the Kajima Corporation to settle with surviving Chinese workers of a mine it operated during the war. In March an ILO committee called on the Government to take additional measures to satisfy individual Chinese and Korean victims of forced labor during the war.
The Asian Women's Fund continued to compensate former comfort women, who were forced to provide sexual services to Japanese troops during World War II (see Section 5).
d. Status of Child Labor Practices and Minimum Age for Employment
The Constitution bans the exploitation of children. Both societal values and the rigorous enforcement of the Labor Standards Law protect children from exploitation in the workplace. The Government prohibits forced or bonded labor, including that performed by children and enforces this prohibition effectively (see Section 6.c.).
Child labor is virtually nonexistent. By law children under the age of 16 may not be employed and those under age 18 may not be employed in dangerous or harmful jobs. The Labor Inspection Division of the Ministry of Labor, which vigorously enforces the Labor Standards Law, reports no violations. Society places an extremely high value on education, which is compulsory through the lower secondary (i.e., ninth grade) level. Enrollment levels for both boys and girls through the free and universally available upper secondary level (age 18) exceed 95 percent.
e. Acceptable Conditions of Work
Minimum wages are set on a regional (prefectural) and industry basis, with the input of tripartite (workers, employers, public interest) advisory councils. Employers covered by a minimum wage must post the concerned minimum wages, and compliance with minimum wages is considered widespread. Minimum wage rates, effective in fiscal year 1998 (starting September 1), ranged from $50 (5,465 yen) per day in Tokyo and Osaka to $34 (4,712 yen) in Miyazaki prefecture and are considered sufficient to provide a worker and family with a decent standard of living. The Labor Standards Law provides for a 40-hour workweek for most industries and mandates premium pay for hours worked over 40 in a week, or 8 in a day. However, labor unions frequently criticize the Government for failing to enforce maximum working hour regulations in smaller firms.
The Immigration Bureau of the Justice Ministry estimated that, as of January 1, 1998 there were 276,810 foreign nationals residing illegally in the country. Illegal immigrants come primarily from: South Korea, the Philippines, Thailand, China, Peru, Iran, Malaysia, and Taiwan.
While many foreign illegal residents came in search of better paying manufacturing and construction jobs, these opportunities decreased during the economic slowdown. Thus, more of the foreign workers are unemployed or marginally employed. Activist groups claim that employers can exploit or discriminate against foreign workers, who often have little or no knowledge of the Japanese language or their legal rights. The Government has tried to reduce the inflow of illegal foreign workers by prosecuting employers. Recent revisions of the Immigration Law provide for penalties against employers of undocumented foreign workers. Suspected foreign workers also may be denied entry for passport, visa, and entry application irregularities. The August revision to the immigration law also established penalties for illegal stays separate from existing injunctions against illegal entry. The Government continues to study the foreign worker issue, and several citizens' groups are working with illegal foreign workers to improve their access to information on worker rights.
The Ministry of Labor effectively administers various laws and regulations governing occupational health and safety, principal among which is the 1972 Industrial Safety and Health Law. Standards are set by the Ministry of Labor and issued after consultation with the Standing Committee on Safety and Health of the Tripartite Labor Standards Commission. Labor inspectors have the authority to suspend unsafe operations immediately, and the law provides that workers may voice concerns over occupational safety and remove themselves from unsafe working conditions without jeopardizing their continued employment.
f. Trafficking in Persons
The Constitution prohibits holding persons in bondage, and in April the Business Entertainment Law was amended in order to supplement the Prostitution Prevention Act as an instrument against trafficking. The amended law sanctions employers rather than just prostitute/victims and, inter alia, places a 5-year waiting period for a business license on anyone convicted of the " crime of encouragement" to engage in prostitution. In May the Diet enacted a law intended to prevent all forms of sexual expoitation of children, whether trafficked or not, and imposing a 3-year sentence upon conviction (see Section 5).
Japan is a destination country for trafficking in women for purposes of sexual exploitation. Brokers in source countries (e.g., the Philippines and Thailand) recruit women and " sell" them to Japanese intermediaries, who in turn coerce them into the sex trade by subjecting them to excessive debts and seizing their passports. Reliable statistics on the number and origin of women trafficked to the country are unavailable, but according to the Ministry of Justice 2.5 percent of the 15,823 women deported in 1997 were prostitutes.
In recent years there has been a surge in the smuggling of illegal immigrants from China. These illegal immigrants often are held in debt bondage to make them pay off the smugglers.