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Tuesday, May 2, 2006

THE ZEIT GIST

How to kill a bill

Tottori's Human Rights Ordinance is a case study in alarmism


On Oct. 12, 2005, the Tottori Prefectural Assembly approved Japan's first human rights ordinance, a local law forbidding and punishing racial discrimination.

News photo
Tottori Prefectural assembly members stand in support of a discrimination and human rights ordiance on Oct. 12, 2005.

In a land where racial discrimination is not illegal, this is an historic occasion.

Even a clarion call: If even rural Tottori can pass this, what's stopping the rest of the country?

But history pushed back. Five months later, Tottori Prefectural Assembly unpassed the ordinance.

What went wrong? This is a cautionary tale on how not to create landmark legislation.

The ordinance itself

The Tottori Prefecture "Ordinance Regarding Promotion and Procedure for the Restitution for Human Rights Violations" ("jinken shingai kyuusai suishin oyobi tetsuzuki ni kansuru jourei") looked very promising.

Drafted by a committee of 26 people nominated by a progressive governor, Katayama Yoshihiro, the bill reflected the input of those who would most want it: a lawyer, several academics and human rights activists, and even three foreign residents.

Its express goal is, "when violations of human rights occur or threaten to occur, to devise measures for the speedy and appropriate restitution or effective prevention of damages, and by doing so contribute toward the realization of a society which holds human rights in high regard."

Ambitious in scope, it governs behavior related to abuse (physical, mental, and through negligence) and discrimination by race. By "race," the ordinance includes "blood race, ethnicity, creed, gender, social standing, family status, disability, illness, and sexual orientation."

It states, inter alia, that nobody may unduly ("futou") racially discriminate against an individual or a group with shared racial characteristics, publicly defame another person, or even be the vehicle for the dissemination of defamation and discrimination.

The ordinance would establish a committee of five to hear cases, contact the perpetrator, and oversee conflict resolution. Committee members would be nominated by and report periodically through the governor.

Moreover, unlike other oversight groups of this ilk, the committee actually had teeth: It could launch investigations, require hearings and written explanations, issue private warnings (making them public if they went ignored), demand compensation for victims, remand cases to the courts, even recommend cases to prosecutors if they thought there was a crime involved. It also had punitive powers, including fines up to 50,000 yen.

It even had a built-in safety catch: Taking effect June 1, 2006, the ordinance would expire at the end of March 2010 unless specifically extended.

It looked good. Good enough to be passed by the Tottori Prefectural Assembly 35 to 3. But after that, the deluge.

Beware of local ordnance

Almost immediately there was an alarmist blitz, even from neighboring prefectures. The Chugoku Shinbun (Hiroshima), in its Oct. 14 editorial entitled "We must monitor this ordinance in practice," claimed it would "in fact shackle ("sokubaku") human rights."

Accusations flew that assemblypersons had not read the bill properly -- only voted for fluffy ideals without clear thinking. Others said the governor had not explained to the people properly what he was binding them to. Internet petitions blossomed to kill the bill.

Some sample complaints (with counterarguments):

* The bill had been deliberated upon in the Assembly for only a week. (Even though it was first brought up in 2003 and discussed in committees throughout 2005? How long is sufficient?)

* Its definitions of human rights violations (such as "defamation" -- "hibou" -- were too vague, and could hinder the media in, say, investigating politicians for corruption. (Even though it contains a clause that freedom of speech and press must be respected?)

* Since its committee was not an independent body, reporting only to the Governor, this could encourage arbitrary decisions and coverups. (Just like the currently-existing Bureau of Human Rights ("jinken yougobu") reports only to the secretive Ministry of Justice, so why not do away with the BOHR too?)

* This might threaten the reputation of the accused, since the committee could legally make their names public. (As can the police, but is anyone suggesting cops should be denied policing powers because they might make a mistake?)

* This invests judicial and policing powers in an administrative organ, a violation of the separation of powers. (So no oversight committee in Japan is allowed to have teeth? And what of the many other ordinances, such as those governing garbage disposal, mandating fines and incarceration?)

And so on. The Japan Federation of Bar Associations sounded the death knell in its statement of Nov. 2: Too much power had been given the governor (as opposed to dispersing it within the police forces?), constricting the people and media under arbitrary guidelines, under a committee chief who could investigate by diktat, overseeing a bureaucracy that could refuse to be investigated.

If there were really so many holes in this bill, one wonders what anyone ever saw in it. Why had it not been shot down in committee? Before it could be put before the Prefectural Assembly and overwhelmingly passed as a law?

'O supporters, where art thou?'

That remains unclear. Also unclear is what happened to the voices in support of this document. The government issued an official Q&A to allay concern, and the governor said problems would be dealt with as they arose. But supporters apparently got drowned out.

In December and January, the prefecture convoked informal discussion groups containing the vice-governor, two court counselors, four academics, and five lawyers (but no human rights activists). They offered obscure theories on how the constitution binds the people, how administrators cannot be judges, etc.

The result: A U-turn into complete defeat. On March 24, 2006, the Tottori Prefectural Assembly voted unanimously to suspend the ordinance indefinitely. Gov. Katayama shrugged and reportedly said in paraphrase, "We'll get started immediately on fixing things. We wouldn't need this ordinance if there were absolutely no human rights violations in our prefecture, but there are and we do."

Lessons

In the interests of full disclosure, your correspondent admits he wanted this ordinance to go through. It would be about time.

In 1996, Japan promised the United Nations it would take all effective measures, including laws, to eliminate all forms of racial discrimination.

More than a decade later, we still have no law, and instead policies encouraging exclusionism and racial profiling.

Moreover there is no law on the horizon. Twice now, in 2003 and 2005, the national Diet rejected bills that would safeguard more human rights for everyone in Japan.

As above, so below: A local legislature passing something, then unpassing it? Very bad form. Not to mention a bad precedent.

Yet, as this column has argued ("Watching the Detectives," on July 8, 2003), the present administrative machinery to curtail discrimination, the BOHR, is essentially meaningless, precisely because it has only a limited investigative ability, and no policing or punitive powers.

It can only hopefully "advise and enlighten" discriminators.

That is what Tottori was apparently trying to improve upon. Yet, ironically, those improvements caused its undoing.

"We should have brought up cases to illustrate specific human rights violations. The public did not seem to understand what we were trying to prevent," said Mr Ishiba, a representative of the Tottori governor's office.

"They should have held town meetings to raise awareness about what discrimination is, and created separate ordinances for each type of discrimination," said Assemblywoman Ozaki Kaoru, who voted against the bill both times.

Unfortunately, history demonstrates that bills specifically guaranteeing foreigners' rights get trashed, not because of a lack of awareness, but rather because of intractable fears of North Korean residents getting any power.

It's dubious whether a law outlawing racial discrimination alone will ever be passed.

The lesson of this case: If you wish to create landmark legislation, you better have your supporters ready to vocally defend it.

If not, unanswered alarmists will shout down any progressive action in favor of the status quo.

Tottori, meanwhile, is launching another drafting committee. When will it submit another rights bill? Unknown.

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