WWIN news No.11 OCT.16.2002
〜 Information from Japan〜
A gift from the UN, Geneva, Switzerland in 2001
Shizuko Koedo (Working Women’s Network)
1. Speaking at the NGO briefing
In summer 2001, Working Women’s Network (WWN) flew off to Switzerland, to visit the UN. The group consisted of 9 members, including 4 of the plaintiffs of the Sumitomo trials, and 2 members residing in the U.K.
The reason for the visit was to listen to the examination sessions of the Japanese government report at the Economic and Social Rights Committee, and for the plaintiffs to speak at the Committee’s NGO briefing, about the gender biased court decisions, and the current situation in Japan.
Actually, we were waiting for the examination of the government report at the CEDAW (Committee of the Elimination of Discrimination against Women) to be held in New York, but we did not know when that was going to happen. It then came to our knowledge, that the government report was going to be discussed at the Economic and Social Rights Committee, and we rewrote the address of our counter-report from New York to Geneva.
After a quick study of the International Covenant on Economic, Social and Cultural Rights (ICESCR), we were surprised. Article 3 of the Covenant was a prohibition of discrimination based on sex, and Article 7 provided for the realization of equal pay for work of equal value, the principles we were pressing for. We then received an e-mail from Dr. Marsha Freeman, chairman of IWRAW, offering to submit the report for us, while she was in Geneva. When we told her we were going there, her response was, “Great!” Not only did she send us examples of NGO reports of other countries, she also gave us valuable advice, such as including recommendations, so that the information will be more than just a situation report.
2. Counter-report and recommendation
The report gave an account of the decisions of the Sumitomo Electric and the Sumitomo Chemicals cases, and the effects of the amended Equal Employment Opportunity Law, as well as the statement summarizing the consultation at the Supreme Court, saying that Japan has no laws providing for equal pay for work of equal value, which would be in breach of the country’s international obligations. The recommendations set forth by WWN is as follows:
1. Since sex discrimination existed at the time of ratification of ICESCR in 1979, correction of the discrimination should be implemented retrospectively from the date the treaty went into force, and the government should comply with international law.
2. Gender education should be implemented for the judiciary including judges.
3. “Employment management categories” under the new guidelines of the amended Equal Employment Opportunities Law should be abolished, since it allows the continuation of track-based personnel system
4. Equal pay for work of equal value should be implemented
5. Legislation prohibiting indirect discrimination should be enacted
6. Positive action should be fully implemented
7. Development of gender neutral wage consultants should be publicly conducted
3. NGO briefing
The briefing by the NGO’s was held for 2 hours in the afternoon of August 13. 8 countries were up for examination, and the chairperson emphasized that speaking time for each NGO was to be strictly limited to 5 minutes.
Ms. Eiko Shirafuji, who is a plaintiff of the Sumitomo Electric case, explained in English, how the wage difference between her and a male employee, who has the same educational background and working years as her, amounted to 240,000 yen per month. She told the Committee how the court decision reflected the gender bias, by finding that the track-based system was a violation of the Constitution, but not illegal, since many women in the 1960’s and 70’s left work after marriage. The personnel management system, therefore, according to the Court, was not against public order. Sitting on either side of her was Ms. Habu and another resident of the U.K., who came all the way to join us, Ms. Keiko Aiba (who assisted with the second half of Ms. Shirafuji’s speech). Ms. Habu responded fluently to the Committee Member’s question, regarding what we wanted from the Japanese judiciary. She also spoke up, when the floor was opened for questions, to explain further about WWN. WWN, as a matter of fact, managed to speak altogether for about 8 to 9 minutes. People who support us told us that in the end, they start acting as if they were the organizers of WWN. Ms. Kimiko Okada, who joined us later as interpreter, was one of those who expressed such impressions.
4. Lobby activities
Immediately after arriving in Geneva, we started to lobby energetically, not only towards the Committee experts, but towards the mass media, International Union of Metal Workers, and other areas.
Particularly memorable was the argument we had, when we visited the ILO, with Ms. Constance Thomas, from the Equality and Employment Branch. She had expressed an appreciative view of the amendment of the Equal Opportunities Law. In the end, we finally made our point, that the new guidelines under the revised law helped maintain the track-based personnel system. Ms. Thomas assured us that she would raise some concerns to part of the amended Equal Opportunities Law.
This issue was reflected almost fully in the Concluding Observations and Recommendations of the Economic and Social Rights Committee, and we were strongly impressed at how sincerely the international organization had heard the appeals from the NGO’s. During our discussions with Ms. Thomas, we also explained about the summary of the Supreme Court consultations, including the comment that there were no legislations in Japan providing for the principle of equal pay for work of equal value. She commented sternly, that if there were no such provisions, then Japan should be required to legislate one. She asked if there were any documents to support this, and she was pleased when we handed her the copy of the Supreme Court documents, with the Court’s official seal.
5. The gift from Geneva
The following Concerns and Recommendations in the Concluding Observations by
ICESCR were altogether a great gift for us, a treasure trove, which we hope to use in our trials and our challenges in solving the gender issue.
★The provisions of the Covenant are not given effect in domestic law in a satisfactory manner.
★Correction of gender discrimination is not subject to progressive realization, but must be implemented immediately.
★ Regarding core obligations, such as gender equality and education, it is urged that the provisions are given direct applicability.
★It is urged that new legislation with an appropriate gender perspective be adopted, with a view to ensuring greater equality of men and women.
★Improving teaching and training programmes on human rights for judges, prosecutors and lawyers are recommended.
★Ratification of ILO Conventions, which abolish discrimination in employment (No.111, etc.), is encouraged.
★The issue of de facto inequality between men and women regarding wages regarding wages for work of equal value need to be addressed.
After our return to Japan, one of the plaintiffs, Ms. Kinuko Ishida, quoted from the Observations in making her case at the fist hearing in the Sumitomo Chemical appeals trial.
6. Visit to the Supreme Court, Rengo and the ILO Tokyo
On November 9, the plaintiffs and other members of WWN boarded the first bullet train to Tokyo, carrying with us all we had brought home from Geneva. We had quite a tight schedule.
9:00 Supreme Court Secretariat
10:00 Rengo (Japanese Trade Union Confederation) Gender Equality Dept.,
International Office
11:00 ILO Tokyo Office
13:00- 14:00 Cabinet Office, Ministry of Health, Labour and Welfare
14:00- 14:30 Ministry of Foreign Affairs
14:30- 15:00 Ministry of Justice
15:00- 17:30 Press Briefing
The Members of the Diet, Ms. Masako Owaki and Ms. Haruko Yoshikawa helped us in the negotiations with the Ministries.
On that day, 15 of us arrived at the Supreme Court, and handed the officer in charge of the Secretariat our petition to repeal the summary of the consultations, which were in breach of the country’s international obligations.
At the Rengo and ILO Tokyo offices, we appealed to them to cooperate towards achieving the implementation of ILO Convention No. 100 and the ratification of Convention No. 111(equal treatment), as well as the Optional Protocol(individual petition) to CEDAW. To emphasize our call for the ratification of the Optional Protocol, we read out the message WWN received from the Vice-chairperson of CEDAW, Dr. Schoepp-Schilling.
” The Optional Protocol to CEDAW, which entered into force on December 22, 2000, is an important human rights instrument. It strengths the Convention in a powerful way and potentially gives women all over the world the opportunity to seek for the de jure and de facto realization of their human right of non-discrimination in all fields of their lives.
A country, ratifying the Optional Protocol, through this act expresses its sincere commitment to the women and their enjoyment of human rights under its jurisdiction.”
7. Discussion with the Ministries
A special session was held that day, and unfortunately the meeting with non-partisan female members of the Diet had to be postponed. But the Members, Ms. Yoko Tashima, Ms. Etsuko Kawada, Ms. Eriko Yamatani, Ms. Hiroko Hatta, Ms. Noriko Hayashi, Ms. Sachiko Kawahashi, as well as Ms. Masako Owaki and Ms. Haruko Yoshikawa, literally representing all parties, joined us in our discussions with the ministries.
At the Ministry of Health, Labour and Welfare and the Cabinet Office, we asked the officer in charge for their comments on 1. information in the CEDAW report regarding court cases, and 2. prohibition of indirect discrimination. These issues had been our homework since our last negotiation by the plaintiffs and WWN, in 1999.
Regarding the first issue, the officer responded, that they had little information on court cases, to which the WWN members replied, “Ask us.” On the second issue, the response was that the issue was being studied, as there was no national consensus; they would be holding a study meeting on indirect discrimination. Ms. Owaki immediately responded, that this was the same reply the Ministry gave in the Diet questioning session 10 years ago.
At the Ministry of Foreign Affairs, we inquired which agency was responsible for human rights education for the judiciary. The officers there replied that such training was being conducted at the Supreme Court, but a staff of Ms. Mizuho Fukushima, a Diet Member, said that it was hardly a training; the participants got together to read relevant materials. When we asked why Japan could not ratify the ILO Convention No. 111, the Ministry told us that the reasons were varied, such as the issue of compatibility with the domestic laws, and that there was no definition of indirect discrimination in the country.
WWN responded by saying that there was an established definition of indirect discrimination internationally, and that we could provide them with materials related to this.
The Justice Ministry commented on the summary of the Supreme Court consultation, that it was merely a compilation of the views expressed at the meeting, and was not binding on the judges. We publicized this through the mass media immediately: “To judges in charge of labour related cases: it is not necessary to heed to the views of the Chief of the Supreme Court. Please feel free to decide as you feel is right.”
According to Ms. Mizuho Fukushima, a petition was adopted by the Upper House, with the broad support ranging from the LDP to the Communist Party, to ratify the CEDAW Optional Protocol. She was of the view that the Foreign Ministry had to respond to this in some way or another. The Japanese Government must submit by 2006 the progress made, regarding the Concluding Observations to the Economic and Social Rights Committee. WWN will continue to monitor their actions.
A Hot Summer of the NGO’s
Towards effective implementation of international treaties
Hayashi Hiroko, Professor, Fukuoka University
1.The relationship between international treaties and domestic law
It became necessary for me to study the application of the Public Assistance Act to foreign residents in Japan, and this presented me with an opportunity to reexamine the situation regarding domestic implementation of international treaties in this country. The Public Assistance Act is applied to “nationals,” therefore foreign residents have not been considered beneficiaries under this law. The law was applied mutatis mutandis as an administrative measure through the notice of the Director of the Social Welfare Bureau, Ministry of Health and Welfare. The nationality requirement in the legislations related to social security was abolished with the ratification of the International Covenants on Human Rights in 1979 and accession of the Status of Refugee Treaty in 1981, which makes equal treatment of everyone within its jurisdiction the state’s responsibility. The same requirement, however, was not abolished in the Public Assistance Act, on grounds that effective equality was achieved through the Director’s notice. The records of the deliberations in the Diet at that time show that the Diet Members’ questions to the government were too weak and left the issue of domestic legislation ambiguous. The government went ahead with the ratification, and no legislative measures have been taken since. The courts continue to deny the foreigners’ right to live, as well as the direct application of treaties. These courts use the principle of legislative discretion to avoid any judicial decisions, with the excuse that the legislative measures have not been provided, to deny the foreign residents’ claims to public assistance. The claims of resident Koreans, who have worked and paid taxes for 56 years after the war, just like the Japanese, are still not admitted today.
The issue regarding the relationship between treaties and domestic law reemerged recently, in the discussion involving the principle of equal pay for equal work. The Supreme Court brought together the judges in charge of labour related civil and administrative cases from around the country for a conference. A judicial administrative document disclosed on July 10 revealed that the majority of the judges present agreed to the view that there were no substantive legislation stipulating the principle of equal pay for equal work, therefore it was not possible to confirm the existence of the principle. The document was disclosed, on request by the lawyers to the Supreme Court based on the Information Disclosure Law, and it outlined the conference on issues related to wages held at the Supreme Court on October 27, 1998. There were discussions on whether wage disparities between regular and non-regular employees were permissible, when years in employment, job content and working hours, etc, were the same. The majority viewed the wage disparities permissible, unless they violated public order, as there were no provisions stipulating the principle of equal pay for equal work.
In the case, in which 28 female temporary employees, whose contract were renewed on a bi-annual basis for many years, and whose work was the same as regular female employees, except for the form of employment, claimed damages for wage discrimination, the court granted damages for 80% of the regular employees’ wages, and stated that, “it cannot be admitted that the principle of equal pay for equal (value) work exists in the general legal norms regulating labour relations.” (Maruko Keihoki Case, Nagano District Court, Ueda Branch, March 15, 1996.) This interpretation seems to have been supported in the conference.
2.Ratification of international treaties and Article 4 of the Labour Standards Law
There is no explicit provision for the principle of equal pay for equal work in our labour laws, however, Japan has ratified numerous treaties regarding the principle of equal pay for work of equal value, which includes that of equal pay for equal work. (ILO Convention No. 100, Convention concerning Equal Remuneration for Men and
Women Workers for Work of Equal Value, ratified in 1967; both International Covenants ratified in 1979 – Article 7 of the ICESCR explicitly provides for equal pay for work of equal value, and equal pay for equal work for men and women, by requiring States Parties to “recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular, remuneration which provides all workers, as a minimum with: fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; Convention on the Elimination of All Forms of Discrimination against Women ratified in 1985 – Article11(b) provides for equal pay for work of equal value for men and women.)The judges have a duty to comply with the Constitution and the treaties, based on Article 98 (2) of the Constitution, but since they deny the equal pay principle on grounds of lack of substantive law, the question arises, whether the substantive law in this regards includes Article 4 of the Labour Standards Law, in which case, the judges are denying the existence of the equal pay principle between men and women.
At the time of ratification f the ILO Convention No. 100, no legislative measures were introduced, because Article 4 of the Labour Standards Law was considered sufficient. 18 years later, when CEDAW was ratified, legislative measures were adopted for labour conditions other than pay. Article 4 of the Labour Standards Law merely states that, an “employer shall not engage in discriminatory treatment of a woman as compared with a man with respect to wages by reason of the worker being a woman.” There is a dispute, whether engagement in equal (value) work by men and women is a necessary condition for finding a violation of Article 4. Various flaws of the law has been pointed out, such as 1) the article does not clarify with whom the burden of proof lies, 2) the law provides only for the criminal responsibility of the employer, but not on civil effects, so that there are no provisions, which can serve as a basis for discriminated women to claim damages for wage disparities. After the ratification of these treaties, wage disparities between men and women have not improved, and the government has received recommendations from the Committees of the ILO, CEDAW, and the Human Rights Committee. However, as of today, no new legislation has been introduced.
3. The examination of the Japanese State Report and the NGO’s
The government is responsible for submitting a regular report to the Economic and Social Rights Committee on the implementation of the ICESCR in Japan. In August 1998, the government submitted its second report to the UN, in which it states that, Japan has “ratified ILO Convention No. 100 (Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value) in July 1967, and has established a
legislative system in accordance with the Convention…Ten years have passed since the enforcement of the Equal Employment Opportunity Law. The Law’s goals are steadily being incorporated through the continuous efforts of enterprises to improve employment administration.” The report was examined by the Committee on August 21 of this year at UN Palais Wilson in Geneva. The Committee reflects in its examinations, not only the government report, but also views from the NGO’s and other private individuals, and permits NGO’s and others to submit materials for information. The session was attended by 21 members of the government delegation and approximately 70 other individuals from Japan. Such a large number of NGO’s is said to have been unheard of. Before the examination of the report, the Committee was briefed by the NGO’s on August 13, and NGO’s such as the Japan Bar Association, Association for the Human Rights of Resident Koreans, Working Women’s Network, of which the author is a member, made presentations to the Committee on the relevant issues. NGO’s such as the Bar Association submitted detailed reports, emphasizing the need for legislation, since the courts refuse to apply the treaties.
During the examination, 18 Committee members questioned the delegation on a wide range of issues, including those regarding Ainu people, discrimination against minorities such as resident Koreans, homeless persons, relief measures for victims of the Hanshin-Awaji earthquake, and sex discrimination in employment. The discussions were relayed back home by the NGO’s almost immediately. The Committee issued its concluding observations and recommendations on August 31, in which it expressed concerns that the social rights in the Covenant, including prohibition of discrimination against minorities, were not sufficiently considered in the domestic laws, policies and judicial decisions. It called for improvements such as strengthening legislative measures and human rights education and training programs for judges, prosecutors and lawyers. These recommendations, however, are not binding on the states.
The NGO’s are insisting on the ratification of the Optional Protocol of the CEDAW (effective as of December 10, 2000) to overcome the stifling situation of courts reluctant to apply treaties, and the inactive legislature. By becoming a party to the Protocol, the CEDAW Committee would be able to issue specific views based on an individual’s complaint regarding the government’s inaction towards de facto discrimination in wages and promotion, or lack of positive policies toward correction of de facto wage discrimination, for example. The government is adverse to ratification of the Protocol, since it entails issues of independence of the courts, as well as the supremacy of the Supreme Court, but the discussions provide an opportunity to review the relationship between the Constitution, treaties and the law.
(excerpt from Rodo-horitsu-junpo (Labour Law Journal) Vol.1511, Sept. 10, 2001, provisional translation)