|49.||In concluding the said Convention, Japan made the following reservation about Paragraphs (a) and (b) of Article 4.|
"In applying the provisions of paragraphs (a) and (b) of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, Japan fulfills the obligations under those provisions to the extent that fulfillment of the obligations is compatible with the guarantee of rights to freedom of assembly, association and expression and other rights under the Constitution of Japan, noting the phrase 'with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention' referred to in Article 4."
|50.||The reason for this reservation is as follows. |
The Constitution of Japan guarantees freedom of assembly and association as well as speech, press and all other forms of expression under the provision of Article 21, Paragraph 1 (hereinafter "freedom of expression"). Freedom of expression is one of the most important rights among fundamental human rights since it is an indispensable prerequisite for people to participate in politics and is directly related to the respect of an individual's dignity. In view of the importance of freedom of expression, excessively broad restrictions on freedom of expression are interpreted not to be permitted under the Constitution, and the necessity and rationale for such restrictions are strictly demanded even in cases that entail a conflict with the rights of other persons. This principle is applied even more strictly in cases where acts of expression are restricted by penalties, the most strict of sanctions. Article 31 of the Constitution of Japan guarantees the principle of legality of crime and punishment, requiring that the criminal laws provisions shall be as concrete and clear as possible in stating the practices to be punishable and the penalties to be meted out.
Article 4 (a) and (b) of the said Convention request State Parties to punish dissemination of ideas based on racial superiority or hatred and incitement to racial discrimination. In Japan, it is possible to punish such practices as long as it is compatible with the Constitution; accordingly, Japan fulfills the obligation requested by the said Convention to that extent. However, as stated above, to control all such practices with criminal laws and regulations beyond the current legal system is likely to be contrary to the freedom of expression and other freedoms as guaranteed by the Constitution. This is because the concept referred to in the said Articles may include various practices under diverse conditions. Therefore, Japan has decided to fulfill obligations stipulated in Article 4 of the said Convention so long as they do not contradict the guarantees of the Constitution of Japan, while paying due regard to the rights proclaimed by the Universal Declaration of Human Rights.
|51.||In Japan, the implementation of domestic laws to prevent human rights violations by discrimination and activities to raise public awareness of human rights have proved to be successful in eliminating discriminatory practices and preventing future reoccurrences of such practices. The Government believes that respect of human rights by the general public should be essentially enhanced through free speech guaranteed by freedom of expression, and that it is most appropriate that a society itself eliminate any existing discrimination and prejudice with its own will by respecting the Constitutional provision prohibiting the abuse of freedom and rights. It is hoped that public relations activities conducted by the Government will facilitate such a self-cleansing action in the society.|
Punishment of Dissemination, Incitement and Violence
|52.||As is clear from Japan's reservation to the said Convention regarding all dissemination of ideas based on racial superiority or hatred, there are no specific provisions that stipulate what constitutes racially discriminatory expression, that is, dissemination of ideas based on racial superiority or hatred, as a criminal act, considering the importance of the freedoms of assembly, association and expression as guaranteed by the Constitution. However, if the content damages the honor or credit of a specific individual or group, such dissemination of ideas is punishable as a crime of defamation (Article 230, Penal Code), insult (Article 231), or damage to credit, obstruction of business (Article 233) of the Penal Code. If such activities include threatening contents against a specific individual, they are punishable as a crime of intimidation (Article 222), collective intimidation and habitual intimidation (Article 1 and Article 1-3 of the Law concerning Punishment of Physical Violence and Others).|
|53.||Incitement to racial discrimination is punishable as a crime of instigation (Article 61,Penal Code) or assistance (Article 62) of the crimes if an act constitutes one of the above-mentioned crimes. If an instigation or assistance in a violation of a law prohibiting discriminatory treatment, such as the provision of equal treatment by public officials (Articles 27 and 109 of the National Public Service Law, Articles 13 and 60 of the Local Public Service Law), is also punished.|
|54.||With regard to punishing violent acts against any race or group of persons of another colour or ethnic origin, the Penal Code contains riot provisions, for cases in which a large number of persons assemble and use violence or threat (Article 106), and other criminal provisions, such as rape (Article 177), homicide (Article 199), bodily injury (Article 204), unlawful meeting and assembly with dangerous weapons (Article 208-2) and robbery (Article 236), though there is no specific law to severely punish violence against a certain group. Moreover, the Law Concerning Punishment for Physical Violence and Others penalize collective violence/intimidation/destruction of utensils (Article 1) and habitual violence/bodily injury/destruction of utensils (Article 1-3). The Explosives Control Act and the Law Punishing Use, etc. of Glass Bottle Grenades also penalize respectively using, etc. explosives and glass bottle grenades.|
|55.||If an act constitutes one of the crimes referred to in the preceding paragraph, incitement to the act is punishable as a crime of instigation (Article 61, Penal Code) or assistance (Article 62) of the crimes. In addition, Article 206 of the Penal Code punishes anybody who encourages the offender in injuring another person at the scene of the crime.|
|56.||If a person assists in committing any of the above-mentioned racist activities, including the financing thereof, he/she will be punished as having committed the crime of assistance according to Article 62 of the Penal Code.|
|57.||In relation to Article 4 of the Convention, there were a number of incidents of harassment and assaults against the Korean students across Japan from the spring to the summer of 1994. They included discriminatory words and behavior against female students of Korean schools, discriminatory graffiti in railway station restrooms and incidents of assault by ripping chima chogori (Korean ethnic dress), to all of which the Government paid great attention in the light of the protection of human rights. |
The police attempted to arrest the offenders quickly and to prevent further these incidents from happening by reinforcing patrols in possible trouble areas during commuting hours with the close teamwork of the related authorities and the cooperation of schools.
Arrests related to these incidents included the following:
(a) Police arrested an adult on a charge of assault and destruction of property on suspicion of ripping off a 13-centimeter long, 9-cenimeter wide piece of cloth from the waist of the chima (skirt) of a female Korean school student on a train.
(b)Police arrested a boy on charges of physically assaulting another boy. He was suspected of striking and hurting a male Korean school student who was playing at an amusement center. Moreover, after North Korea's launch of the missile in August 1998, six cases of harassment to Korean schools and students in Japan were reported to police by the end of December 1998. These six cases include the following: one female Korean student had her school bag cut in the train (Tokyo); one male Korean student was punched in the stomach on his way to school (Tokyo); a female Korean student had her hair pulled on her way to school (Aichi); a Korean female student had her hand slashed at a railway station on her way home (Tokyo); and two Korean schools in Osaka and Gifu had graffiti scribbled on the walls. The police are continuing their investigation into these cases.
Regulations in the Field of Information
|58.||In Japan, the Broadcast Law provides that broadcasters shall, in compiling programmes for domestic broadcasting, not disturb public security, good morals and manners, be politically impartial, broadcast news without distorting acts, etc. The said Law also provides that they shall establish the standards for compilation of broadcast programs (standards of broadcast programs), compile the broadcast programs in accordance with the standards, and have the Consultative Organization on Broadcast Programs for the purpose of maintaining the appropriateness of broadcast programs. Under these provisions, it is a duty of each broadcasting company to broadcast properly, lest any broadcast program should harm public security, good morals and manners by disseminating or inciting racial discrimination and by justifying or encouraging violence.|
|59.||The Japan Newspaper Association established by the national daily newspaper companies tries to ensure a high ethical standard by formulating "Newspaper Ethical Principles" as their guide and by imposing self-control on freedom of the press and expression.|
|60.||As to the Internet, which recently has become remarkably widespread, the Association of Electronic Networks organized by personal computer communication service providers, formulated "the Code of Ethics" and "the Rules and Manners for users of Personal Computer Communication," trying to prevent ethical problems, such as slander or abuse of others based on racial hatred, from arising. In addition, following the report of the study group submitted in December 1997 by the Ministry of Posts and Telecommunications, the Association of Telecommunication Services organized by Internet providers announced the guidelines for the response of the businesses providing the Internet connection services, etc. in February 1998. Their contract for maintaining a computer network stipulates that the users shall not provide any illegal or harmful information including discriminatory acts, and independent measures such as the deletion of the inappropriate content will be taken in case of violation of this contract.|
Prohibition of Activities to Incite Groups
Article 4 (b) of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates that "organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination," are prohibited and considers "participation in such organizations or activities" as an offense punishable by law.|
No provision exists in Japan under the present legal system that would prohibit specific organizations or activities from promoting racial discrimination or incitement, or which would punish participation in such organizations. However, if an organization promoting or inciting racial discrimination engages in violent, destructive activities contrary to the Subversive Activities Prevention Law, the said Law, under certain conditions, may restrict its activities, order its dissolution, or punish it or its members for the accusation of law violation.
There has been no case in where the Subversive Activities Prevention Law applied to organization promoting and inciting racial discrimination so far.
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