ROLE OF LAWYERS AND BAR ASSOCIATIONS IN THE PROMOTION AND PROTECTION OF THE HUMAN RIGHTS OF CHILDREN

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1 ROLE OF LAWYERS AND BAR ASSOCIATIONS IN THE PROMOTION AND PROTECTION OF THE HUMAN RIGHTS OF CHILDREN October 8, 2001, The 12th POLA Conference Christchurch, New Zealand Seigo FUJIWARA Vice President, Japan Federation of Bar Associations 1. Introduction The Japan Federation of Bar Associations ("JFBA") has currently about 18,000 members. It is compulsory for all Japanese practicing lawyers ("Bengoshi") to be members of JFBA. There are 52 local associations set up in principle in each prefecture, through which lawyers join the JFBA. Article 1 of the Practicing Attorney Law declares that 'a lawyer is entrusted with the mission to protect fundamental human rights and to realize social justice.' All lawyers are expected to work for this mission, and the JFBA and each local association are also working to accomplish this mission. The JFBA is actively engaged in promoting and protecting the human rights of children, which is an hot issue in Japan recently. I would like to introduce some of our activities and the role of lawyers and bar associations. 2. Children's Rights Committee The JFBA currently has the 'Children's Rights Committee' with 80 members. The Children's Rights Committee was initially established as a committee concerned with 'Juvenile Act 'Amendment' Issues and was mainly engaged in activities in opposition of proposed amendments of the Juvenile Act put forward by the government. However, in the 1980s on account of the high rate of suicides caused by overly strict school regulations and corporal punishment in Japanese schools and bullying, the JFBA started to become involved in the 'Human Rights of Children at School'. In 1985 Children's Rights Hotline was set up in the Tokyo Bar Association, offering advice on the human rights of children by phone and interview, and this kind of help line spread to bar associations throughout Japan. Then, in 1989 around the time the UN Convention on the Rights of the Child was adopted, the JFBA began to conduct research into children's rights generally based on the Convention on the Rights of the Child and also joined other NGOs in conducting a campaign asking the Japanese Government to ratify the Convention on the Rights of the Child.

2 Furthermore, at the beginning of the 1990s the problem of domestic child abuse in Japan became apparent and since then the importance of involvement by lawyers has come to be recognised and the JFBA also began tackling problems of domestic child abuse and also human rights issues of children living away from their families in welfare institutions. Thus in the last 15 years or so the scope of the activities of the JFBA and the bar associations of each district has become very broad. 3. Recent Trend The situation of children in Japan does not allow the slightest optimism. The problems of corporal punishment and bullying in schools are still unresolved and the number of children who do not go to school for reasons other than financial continues to increase each year. Recently so-called class disruption is becoming a problem, that is, teachers are unable to give lessons because students ignore them and do whatever they like. The government has yet to propose a solution to such problems. In the meantime, there are numerous reports of junior high school students and high school students committing suicide and committing brutal and serious crimes such as robbery and the problem of delinquency is also becoming an important issue. Many argue that strict penalties should be used to deal with such heinous acts of delinquency, but bar associations say that it is important to analyse calmly the causes that led to the crime being committed and to ensure an environment in which children can reform. There also seem to be daily reports of child abuse, of young children dying or being seriously injured as a result of violence by their parents. The number of people seeking advice with children's counselors has also increased tenfold in the last ten years. According to our analysis, behind virtually every serious act of delinquency lies a history of child abuse and we consider it a matter of great urgency to find a solution to this problem. Under such present conditions, lawyers and bar associations are involved not only in legislation and government proposals to resolve these problems and education of the general public, but we are also engaged in giving advice on problems relating to children's human rights and in aiding victims. (1) Advocacy and education I would now like to talk a little about the kind of role played by the JFBA and lawyers within the above sphere of activities. Firstly, they have the role of making proposals to the government and Diet on legislation and policy concerning children. At the time of amendments of important laws concerning children's rights such as the Juvenile Act or the Child Welfare Act, the JFBA makes specific proposals. As views from a practical perspective, the views of the JFBC have different significance from those of academics and are taken seriously by the government.

3 The JFBA has advocated that, as long as there is no system of state-appointed counsel for juveniles tried in a juvenile court (such a system was introduced under the Juvenile Law amendment this April, but its scope is only extremely limited), a system is necessary that allows as many juveniles as possible to receive legal aid. The JFBA has created a legal-aid system whereby legal costs are paid for by legal aid associations run mainly by bar associations and as a rule no costs are born by juveniles. As a result of an increase in legal aid, in the last 15 years the percentage of cases with an attorney-at-law in attendance rose from about 1500 to about Local bar associations offer duty lawyers system under which, in cases where legal aid is desired from the criminal investigation stage, an attorney-at-law gives interviews free of charge, and there are also some bar associations that provide a juvenile duty lawyers system under which an lawyers specialising in juvenile cases is on standby. In addition, there are also bar associations that have started a 'duty counsel system' aimed at providing counsel, with the cooperation of the court, in all cases where juveniles are kept in custody and under which as a rule an attorney-at-law interviews juveniles in cases where the Family Court has ruled for custodial measures. Such measures serve to prevent false charges against juveniles and to support the reform of juveniles. Secondly, they have the function of asking the government to ratify and implement the Convention on the Rights of the Child. As explained above, the JFBA knew of the existence of the Convention on the Rights of the Child from around the time of adoption by the UN General Assembly in 1989 and has conducted research into it and urged for its early ratification by the Japanese Government. In 1991 the JFBA held a national symposium to analyse the state of children's rights in Japan in the light of the Convention on the Rights of the Child and appealed the need for early ratification. As a result, the Japanese Government ratified the convention in The Japanese Government states the view that Japanese laws and policy are not in violation of the Convention on the Rights of the Child, but the JFBA believes that this is not the case and sees a need for policy implementation in line with the Convention on the Rights of the Child. To achieve such implementation, we also attach importance to lobbying the UN Children's Rights Committee. The Convention on the Rights of the Child requires governments to report regularly on the state of implementation of the Convention on the Rights of the Child and the Children's Rights Committee in Geneva examines these reports, but the JFBA has submitted an alternative report to the government report in an effort to ensure that the Rights Committee gains an accurate understanding of children's rights in Japan and based on this we have lobbied the committee to issue a recommendation for improvement. Since this year the second government report will be submitted, the JFBA is now preparing to produce an alternative report. Also in connection with the UN, since 1985 the JFBA has attended the UN Crime Prevention Conference as an NGO member and has appealed the need for improvement of Japan's juvenile judicial system in the light of the level of international debate

4 through the earliest possible introduction to Japan of international juvenile judiciary regulations, etc. adopted at this conference. The third function is to educate the Japanese people. The JFBA and the bar associations of each district produce publications on children's rights for the general public and conduct symposiums on children's rights. The 'Children's Human Rights Manual' and the 'Child Abuse Prevention Manual' produced by the JFBA are highly regarded not only by practitioners as extremely practical guides for dealing with children's rights violations, but also by the general public. Whenever amends of the Juvenile Act has become a problem, the JFBA has produced pamphlets for the general public and distributed them widely to promote public understanding. (2) For Individulal cases Fourthly, the fact that the JFBA is engaged in relief activities for individual cases of infringement of children's human rights is extremely unique and I think important. Earlier I mentioned that in 1985 the Tokyo Bar Association set up Children's Human Rights Hotline and there are now 22 bar associations throughout Japan with specialist children human rights help lines. Even other bar associations provide a free helpline once a year on Children's Day. The help line system is different at each local association, but at the Tokyo Bar Association every day from Monday to Friday attorneys-at-law on duty are standing by at the bar association to give advice. They also receive phonecalls from children themselves. Many ask advice on bullying and corporal punishment at school, which are serious problems in Japan, expulsion from school or abuse at home and the attorneys-at-law offer advice. In the course of this, if actual legal involvement is thought necessary, in some cases attorneys-at-law are asked to take action to resolve the issue. In the early days of this help line, because the nature of the help line is deeply connected with educational issues, there was also debate whether lawyers can get involved in educational issues. However, by dint of the bar associations' efforts in obtaining the cooperation of teachers, psychiatrists, counsellors and other experts and in holding courses for the attorneys-at-law themselves, etc. they now give such advice with confidence from a legal perspective. Besides such advice, in cases where a member of the public files a complaint with the JFBA or any local association about an infringement of children's human rights, there is also a human rights relief system where, upon investigation, the bar association issues a warning or a recommendation to ensure that human rights are not infringed. Recently, there was a case where the behavior of a school principal who refused to listen to the views of students at the high school entrance ceremony and graduation ceremony was recognized as corresponding to infringement of the right of the child to freely express views prescribed in the Convention on the Rights of the Child and demands were made to the school principal and the education committee. The case drew attention as the first time in Japan that infringement of a child's right to freely express an opinion had been recognized.

5 I think this kind of response to individual cases can essentially be seen as fulfilment of the role of ombudsman in relation to children's human rights. 4. Conclusion Today I have talked about the activities of the JFBA and I take pride in the fact that the JFBA has played an important role in the protection and promotion of children's human rights as an organization joined by all Japanese attorneys-at-law. However, in Japan, there seems to be news reports of juvenile crime and child abuse almost every day and the current conditions in which children live are by no means satisfactory. This coming November, JFBA will hold an annual Human Rights Convention. One of its three main topics will be "Background of Crime by Juvenile: Its factors and Reform of Education." For the convention, JFBA is preparing a draft resolution, which advocates the importance of support system for the growth of young people and opposes strengthening of oppressive administrative measures. I believe that lawyers and bar associations will be expected to play more and more role for protection and promotion of children's rights.

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