DPI-JAPAN (Japan National Assembly of Disabled Peoplesﾕ
International)
August 2001
INTRODUCTION
DPI (Disabled ﾕPeoplesﾕ International) is an organization
which aims to establish the human rights and independent living
for all the disabled persons and was founded in 1981,the International
Year of Disabled Persons, by the persons with disabilities themselves
under the motto of "a voice of our own". Currency National
Assembly formed in over 150 countries to create international
network of their own. DPI has acquired the consultative status
with reference to the field of disability in UN. Since itﾕs foundation
in 1986, Japan National Assembly of DPI has developed necessary
activities aiming to the full participation and equality and establishment
of human rights for persons with disabilities.
The Second Periodic Report by the Government of Japan (the
Report by the Government) under article 16 and 17 of the "International
Covenant on Economic, Social, and Cultural Rights（the Covenant）"only
stated government "official opinion" very simply and
superficially on the present condition of persons with disabilities
in Japan without explaining how the principle of equality as persons
with disabilities being the subject of the rights regardless of
kinds and severity of disability has been realized concretely.
It shows the gap between international standard of human rights
security which the government, the actual situation which the
Covenant proposes and the realities of the society surrounding
persons with disabilities is so big that the government couldnﾕt
explain.
The following are the major problems concerning the Report by The Government, the actual situation which conflict individual articles of them Covenant, and questions
HEALTH RIGHTS (Article12)
Problem
Medical Law stipulates a discriminative regulation that psychiatric
care is allowed to be operated with only one-third numbers of
doctors and two-third numbers of nurses than other medical cares.
This regulation, so-called Psychiatric Exception, obviously infringes
rights of psychiatric users as stated in Article 12-1. Article
12-2 obliges nations to realize "health rights", while
Japanese Government ignores this obligation in case of psychiatric
users. Governmental Report does not mention this issue at all.
Backgrounds
Actually, persons with psychiatric disabilities require more
intensive care both physically and psychiatrically. However,
Article 21 of Medical Law permits most of the psychiatric wards
to operate with less numbers of doctors and nurses as mentioned
above. Psychiatric users are infringed right to be given medical
treatment on an equal basis as other patients.
Prejudice and discrimination against persons with psychiatric
disabilities is its natural background. Once the name of their
disease is revealed, usually they can never get their jobs, nor
rent their apartment. What is worse, no anti-discrimination law
exists in Japan.
Japan has huge numbers of psychiatric wards and about 350
thousand persons with psychiatric disabilities are hospitalized.
50 percent of them are hospitalized more than 5 years. It is
assumed that quality of psychiatric care is not ensured like that
of other medical cares.
Japanese government must improve such a discriminative treatment
against persons with psychiatric disabilities.
Questions
1 So-called Psychiatric Exception discriminates psychiatric
users terribly. Such exception should be abolished to secure
the right to receive adequate medical care for persons with psychiatric
disabilities. What do you think?
2 Japanese government should apologize and compensate to psychiatric users for leaving Psychiatric Exception as it is for more than 40 years. What do you think?
EMPLOYMENT and WORKING CONDITION of PERSONS WITH DISABILITIES
(Article 6,7)
Problem
Persons with disabilities are set on the very severe working
situations and employments of persons with disabilities have tardily
made little progress. Added to it, there is an article in the
law to exempt laborers with disabilities from the minimum wage
provisions. That is obviously violation of Article 7 (a). Moreover,
the number of dismissed laborers with disabilities is on the increase.
Thus, the governmental report does not state about the employment
and working conditions at all, in spite of disabled people are
facing serious infringement of their human rights.
Background
The employment quota of persons with disabilities over 20
years of age remains about 10%, which is extremely low. Concern
to the employment, legal employment quota for persons with disabilities
is settled by law; it raised from 1.6% to 1.8% and scale of corporations
which have an obligation to employ was expanded as its number
of regular laborers decrease from 63 to 58. However, the quota
of disabled employments on corporation remains merely 1.49% as
of June 1999. The reasons for it can be explained that we have
been hard hit by the depression, but main reason is that corporations
are not basically aware of their own responsibilities as the social
existence. The corporations that do not fulfill the legal employment
quota have to pay the levy for not employing the persons with
disabilities. However, the nature of this levy is not fine nor
penalty and the employment situation of individual corporations
is not disclosed, so it foments the easy attitude of corporations
which choose to pay the levy.
Moreover, the number of dismissal laborers with disabilities
in the first half of this year is comparable to the annual number
of 1997. Especially, the case of medium and small companies that
depend on the grant and subsidy for employment, it has frequently
happened that disabled laborers are forced to resign which are
usually attributed to "personal reason" when 1.5 years
of subsidizing period has been expired.
The next concern is the provision to exempt the minimum
wage regulation. Although Article 5-1 of The Minimum Wage Law
states that employers have to pay more than the minimum wage to
the qualified laborers, its 8-1 cites four exemptions to Article
5-1 with the permission by the Labor Standard Bureau. One of the
exemptions is; those who have extremely poor capacity for work
because of their mental or physical disabilities. It is caused
by the employerﾕs prejudice and inflicts disadvantage only on
the side of persons with disabilities. It is obviously against
Article 7(a).
When it is carried out, the eligibility for the exemption
are determined by the Directorﾕs discretion based on the result
of the investigation done by the Labor Standard Bureau. Therefore
itﾕs standard of approval is not clear. Such discriminatory article
makes the labor condition for persons with disabilities much worse.
Questions
1 We need a law against discrimination on the basis of the disability
concerning hiring, promotion, and payment. But the first thing
to carry out is to disclose the names of iniquitous companies
which fail to observe the quota (legal hiring rate of persons
with disabilities) and the levy for not hiring persons with disabilities
should be changed to fine. What do you think?
2 Article8 (1) of Minimum Wage Law, which exempts persons with disabilities from the protection of Minimum Wage, is discriminatory and should be deleted. What do you think?
DISQUALIFYING CLAUSE CONCERNING PERSONS WITH DISABILITIES
(a) Restrictions on employment eligibility, limit the choice of
occupation
(b) Restriction on the use of public facilities
(Article 6, 7,15)
Problems
(a) There are disqualifying clauses concerning persons with disabilities.
They are the ordinance that excludes persons with disabilities
from certain professions, licenses and qualifications on the basis
of physical or mental disabilities, and clauses amount to more
than 200. The reviews for the clauses has been proceeded however
it is so insufficient that they obviously prevent the opportunities
to participate in the society and invade the human rights of persons
with disabilities.
(b) There are a large number of ordinances to restrict the access
of public facilities by persons with disabilities, especially
with psychiatric disabilities, and they infringe the rights confirmed
in the Article 15 and in General Opinion 5.
Background
(a) The Disqualifying Clauses concerning persons with disabilities
are formulated by the prejudice that persons with disabilities
are incapable. The Clauses trample upon the dignity of persons
with disabilities as human beings. For example, the Article 3,4,7,13
of The Medical Law states that a person who cannot see, cannot
hear, cannot speak and a person with a psychiatric disability
are not admitted to be a doctor and also deny the application
for the state examination for the license to practice medicine.
Moreover Disqualifying Clauses exist in various occupations which
require national qualification such as pharmacists or nurses.
The concept of the clause, "He/She cannot be OO because of
his/her disabilities", is apparent discrimination that deprives
persons with disabilities of their rights to choose occupation.
It is absolute retrogression against the philosophy of "Full
participation and Equality". These clauses are under review,
however it is extremely defective compare to the unconditional
removal which persons with disabilities are aiming at.
(b) According to the results of survey which carried out in
limited places such as Tokyo, Osaka and some other areas, it is
apparent that the local authorities have many ordinances and/or
regulations for persons with disabilities, especially with psychiatric
disabilities to refuse the access of public facilities and the
visit the school board or the city assembly in session. Concerning
public facilities, some ordinances prohibit the use of swimming
pools, gyms and some even prohibit the access to the libraries.
Those are obvious violation of Article 15 that protects the cultural
rights whose core is consisted of equal access and participation
to the cultural life for all individuals and groups. The restrictions
such as on access to the public facilities and the visit the school
board or the city assembly in session should not be based on the
kind of disability but the condition of individual including persons
without disabilities. The Governmental Report does not mention
about these problem at all.
Questions
1 Disqualifying Clauses which identify the kinds and names of
the disability exclude persons with disabilities across-the-board.
Therefore the provision should be amended not to identify kinds
and names of disability. In this connection to guarantee the employment
of persons with disabilities substantially, cost of the auxiliary
means such as assistants and equipments should be covered by public
funds. What do you think?
2 There are discriminatory ordinances and/or regulations in local authorities to restrict the access of public facilities and the visit of school board and the city assembly in session by persons with disabilities. The government should investigate the existing condition and direct the local authorities strongly which maintain discriminatory regulations, to eliminate the regulations immediately. What do you think?
SECURING LIVES of PERSONS WITH DISABILITIES (Article
9)
Problem
Article 9 definitely states that "･･･ each concluded
states allow all human beings have their rights to social insurance
and other social security". However, in the present condition,
to secure the life of severely persons with disabilities who meet
difficulty in employment is extremely insufficient . Also there
are many who cannot receive their disability pension which makes
them in zero-pension situation. These situations are obviously
invasion of their rights, but the Report of the Government does
not mention about it.
Background
In general in the case of persons with disabilities who have
difficulty in being employed, various benefits such as pension
etc. form the base of their life. The severely persons with disabilities
who receive the National Disability Pension amounts only 30% among
all persons with disabilities and more than 80% pensioners receive
fewer amounts compare to the minimum standard of public assistance.
Therefore the present condition is that there are a number of
persons with disabilities who have to receive the public assistance
to keep their independent living in communities, even they are
under the National Disability Pension.
Intrinsically, pension to live on should be required but it
is in so difficult to expand the contributory pension system because
of several reasons, that realistically public assistance becomes
very important. But the present public assistance system exists
as "the last fort of the peoplesﾕ life" and supports
only "the minimum standard of life" have been emphasized
that the eligibility standard is very strict and make the recipient
feel indebted.
The substantial character to practice the original and constitutional
security for " healthy and cultural minimum life"(a
part of Article 11, 13, 25) the right to pursue happiness/welfare
as the fundamental human rights, is excessively weak.
Then, there are a number of persons with disabilities who
are placed in zero-pension condition in spite of their eligibility.
Reasons vary from students or housewives who acquire severe disability
while yet not being the member of the national pension scheme
and persons who became disabled while they had been staying overseas
to not eligible because of their nationality .
According to The Ministry of Health the number of persons
with disabilities not covered by pension system amounts to about
80,000, but we surmise that actual number would be greater .
These situations in Japan are obviously violation of Article
9 that admits all peoplesﾕ rights on social security and this
problem must be corrected quickly. But Japanese government is
consistent in " it is impossible to review the points on
the present system in consequence of our examination." It
does not seem any intention to solve these problems and the governmental
report does not mention about them at all.
Questions
1 The government should guarantee the minimum livelihood for
disabled people who have difficulties in being employed from the
standpoint that National Pension are founded for social solidarity.
If it is actually impossible to expend the pension system, the
government should alleviate the eligibility of public assistance
and change the public assistance system into more recipient-centered
one. What do you think?
2 More than 80,000 disabled people are placed in zero-pension situation in spite of their eligibility for the National Disability Pension. Such situation, which elicits of an invasion of rights should be corrected urgently through amendment of the National Pension Law and/or innovation of the welfare measure.
APOLOGY and COMPENSATION for THE FORCED STERILIZATION
against PERSONS WITH DISABILITIES (Article 10)
Problem
Japanese Governmental Report does not mention about the present
situation that no supplementary measures of apology and compensation
have been taken to the victims of the 16,520 cases of the forced
sterilization under the Eugenic Law.
Background
A number of persons with disabilities were forced to undergo
the sterilization pursuant to the Eugenic Law, which stipulated
"Prevention against birth of defective descendants"
with the consents of them selves or their relatives.
Actually, that "consent" had been signed involuntarily
because they were surrounded by the prejudice of the society.
According to the official statistics the victimﾕs toll climbed
to 16,520.
The Eugenic Law was amended to The Protection Law for The Mother
in 1996, but it inherited from the National Predominance Law that
was enacted based on the sterilization Law in United States of
America, North Europe and the Nazis Germany.
It obviously violates the Article 10 of ICESCR（rights of
persons with disabilities which are confirmed at General Opinion
5）, and it devastates the dignity of persons with disabilities
as human beings. No supplementary measures had been taken by
the government to retrieve the dignity of the victims.
Question
As the result of the review of the "International Covenant
on Civil and Political Rights", Human Rights Committee sent
a recommendation to the Japanese Government. However Japanese
Government has been ignoring.
It is necessary to send a recommendation to the Japanese government
again to investigate the situation of the past and apprehend the
current condition and using that as a base, then to apologize
and compensate to the victims. What do you think?
RIGHT TO EDUCATION of CHILDREN WITH DISABILITIES (Article
13)
Problem
As mentioned in General Opinion No. 5, it is generally recognized
that all people have right to be given equal opportunity for elementary,
secondary, and higher education. However, segregated education
is still commonly adopted for children with disabilities in Japan.
Background
At present, in reference to school for children with disabilities,
there are many problems because municipal school board makes decision
where to go mainly from the point of view of medical diagnosis,
not social inclusion. Children with disabilities and their parents
have also very limited resources for their options. Therefore,
their right to choose their adequate education by themselves is
obviously infringed. This means that children with disabilities
are not respected as individuals who can make decision anything
about them. Special education for children with disabilities should
be provided based on their educational needs at inclusive environment,
where such children are educated at regular schools as much as
possible.
Questions
It is necessary to review drastically the present "segregated
education" in order to complete the policy of integration
education. To set up the scheme of integrated education including
the way to support persons with disabilities (children) by human
and material resources when they study and spend their time in
regular schools is the urgent task. What do you think?
RIGHT TO MOVE (Article11)
Problem
In November 2000, so-called "Barrier-free Transportation
Law" was enacted. It is a remarkable advance for persons
with mobility restrictions, especially wheelchair users, who have
been rejected from using public transportations. However, there
still remain a lot of Lawful problems in this field. For example,
air carriers can enforce a wheelchair user to replace his/her
own wheelchair with air carriers' one at their mercy, though wheelchair
should be recognized as a part of his/her body. In order to solve
such discriminative circumstances, the concept of "mobility
as a human right" should be recognized widely, but above
Law declares this kind of concept very weakly.
Background
Securing the right to move, the following elements should
be recognized:
a) To secure accessible means of transportation
b) To secure the freedom to choose the means of transportation
by the consumers
c) To connect the accessible transportations without any barriers
For persons with mobility restrictions, including persons with
disabilities, to live in society, physical environment should
be accessible, fulfilling the above elements in order to secure
the mobility rights.
Let us study a case that a person with disabilities goes out for
shopping at a department store. The route from his/her house
to the nearest bus stop should be accessible, even though the
bus is low-floored. We should also think about the importance
of accessibility of the bus stop at the destination. The route
from the bus stop to the entrance of department store also should
be made accessible. This case shows us that mobility can be recognized
as a human right for the first time when physical environment
is made accessible as a whole.
In November 2000, so-called "Barrier-free Transportation
Law" (formally, Law for Promoting Accessible Mobility by
Using Public Transportation for Aged Persons and Persons with
Physical Disabilities) was enacted. It is a great advance that
the improvement of physical accessibility can be conducted by
several ministries collaboratively under this law.
However, actually, persons with disabilities are not satisfied
with the improvement of physical accessibility yet, while governmental
statistics announces the increase of elevators at railway stations.
It is mainly because persons with disabilities do not participate
fully in the process of planning of improving accessibility.
Under such a circumstance, the concrete plan of improvement actually
does not secure the rights to move adequately.
We can introduce many examples that improvements is utilized
as advertisements of the transportation companies, not as securing
the right to move: there is a stairways between elevator and elevator;
there is an elevator that can not be used in the midnight; there
is a wheelchair-accessible route in a railway station which is
separated from the ordinary one; there is an information board
written in Braille that is located where blind persons can not
touch.
Questions
１ It is necessary that consumers with disabilities should be
guaranteed to participate in all the process of the Fundamental
Plan which is stipulated by Barrier-free Transportation Law, including
selection of site, planning, implementation, monitoring, follow-up
activities, and personnel training. What do you think?
2 It is necessary that uncooperative transportation companies concerning the improvement of the accessibility should be punished including the disclosure of the name of companies. What do you think?
3 The Law has no relief measures for infringed consumers with mobility restrictions. The "rights to move" should be clearly stated in the Law on the operation of the amendment. What do you think?
DPI-JAPAN
JAPAN NATIONAL ASSEMBLY of
DISABLED PEOPLESﾕ INTERNAIONAL
Sohyokaikan
Kandasurugadai 3-2-11
Chiyoda-Ku
TOKYO 101-0062
JAPAN
(TEL) 81-3-5256-5365
(FAX) 81-3-5256-0414
(E-mail) dpi-japan@nifty.ne.jp