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2005 >> Sex Equality and "Positive Discrimination" : Comparative Legal Analysis >> SUMMARIES >> Professor Hajime YAMAMOTO
" Sex Equality and "Positive Discrimination" : Comparative Legal Analysis "
(Co-organized by the Gender Law and Policy Center and the Society of Comparative Legislation)
SUMMARIES
Reflections on the notion of discrimination in Japanese law
Professor Hajime YAMAMOTO
(Tohoku University)
In Japan, fighting against discriminations remains a major political and social challenge. If THE CONSTITUTION OF JAPAN (1946), which is the second reform to modernize the country, has made possible many realizations in this matter, the letter itself of the Fundamental Law uses the word "discrimination" only twice, moreover without defining it. In Japan, there is no independent declaration of rights. Several important laws have been adopted which prohibit negative discriminations. And, under international pressure, Japan adopted a law designated to encourage the development of policies promoting the protection of human rights (1996). But it is significant that the project of law (discussed initially in 2000, and then partially in 2005) - which aim was to create a legal mechanism specially designated to prohibit and sanction discriminatory practices - met a strong opposition among Diet members.
Doctrine and jurisprudence - in particular concerning discrimination based on sex (and as shown by the discussion on the minimum age required to get married, the debate on the possibility for a woman to become emperor, and the question of the penalization of rape) - seem to be less cautious, and make a distinction between "reasonable discrimination" and "non-reasonable discrimination". The discussion concerning the situation of natural children and their rights helped to make clear the many ways to conceive a discrimination which can not be justified constitutionally, and indicates how Japanese law deals with the notion of discrimination.
By contrast, and in the absence of any concrete case, the question of the constitutionality of positive discrimination measures has not yet been raised before Japanese tribunals. On a theoretical plane, constitutionalists remain divided: if they can not but hope an amelioration of the discriminatory situations, they also fear the risks of contestation inherent to reverse discriminations. As a result, both remain quite prudent concerning the possibility to adopt policies promoting positive discrimination, such as quotas or parity. For example, according to Professor Miyoko TSUJIMURA, a positive discrimination policy can be justified constitutionally only if it refers to a special temporary measure designated to ensure concrete equality, under the condition of several criteria clearly defined, with a strictly determined field of application, and as long as its basis, aim and means are reasonable. Finally, the notion of indirect discrimination is increasingly used to determine if the discussed measures are or not constitutional - as showed by the discussion concerning the equality of chances between workers of both sexes, and the debate related to the family name of spouses.
We see that many progresses have been made. However, the apathy showed both by Parliament and Courts seem to make those words of Professor Jacques CHEVALLIER particularly appropriate to Japan: "How could we pretend to eradicate (discriminations) only by legal means?"
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