HURIGHTS OSAKA

NEWSLETTER of the Asia-Pacific Human Rights Information Center (HURIGHTS OSAKA)
March 2005 Volume 39

Editorial

Second Tragedy
When tsunami struck several countries around the Indian Ocean on 26 December 2004,
the world was awed by its immense damage to people and properties. Thousands of people were killed, and thousands more were displaced.
But a quiet, second tragedy happened soon after relief and rehabilitation efforts begun. It
is a tragedy that flows from the human rights violations already plaguing the affected
countries for years, and in some cases generations.
Discrimination against Dalits, foreign migrant workers and hapless children, among
other disadvantaged people, continued during the relief and rehabilitation period andfurther deepened the impact of the tsunami tragedy. While people and governments theworld over displayed their empathy for the victims, discrimination against the alreadydisadvantaged and abused people did not recede in affected areas in India, Sri Lanka andThailand.
There must be vigilance both in times of "normalcy" and disaster against further victimization of discriminated people. The thought that children who lost their parents are now
being targeted for sexual, commercial and other forms of exploitation is making thetsunami tragedy a permanent symbol of oppression.
The second tragedy against the Dalits, Burmese/Myanmarese workers, young orphans,and other disadvantaged people reminds us that human rights violations never ceaseeven when the human instinct of helping victims of tragedy is supposed to prevail.

FOCUS Asia-Pacific is designed to highlight significant issues and activities relating to humanrights in the Asia-Pacific. Relevant information and articles can be sent to HURIGHTS OSAKA
for inclusion in the next editions of the newsletter.
FOCUS Asia-Pacific is edited by Yoshio Kawashima, Director of HURIGHTS OSAKA.

India After the Tsunami - The Rights of Affected People
Gal Frenkel*
t has been more than two and a half months sincetsunami devastated the coastal communities in thesouth-eastern state of Tamil Nadu, the worst affectedstate on the mainland. India was the third-worst
affected country: nearly 10,000 people died in India
alone, most of them women and children, and morethan 140,000 people have been displaced from theirhomes and are currently residing in relief centers.
The Indian government has estimated that 985,000
people have been affected, more than 126,000 houses and huts on the coastline damaged, and muchproperty lost. Moreover, based on previous natural
disasters it is expected that 50% to 90% of the affected population will experience symptoms such as
post-traumatic stress disorder and depression.

Concerns have been raised about the scope of relief
and rehabilitation, in particular the recognition of all
those affected by the tsunami. The rapid assistance tothe fisherfolk and assistance in restoring their boats
and nets has neglected many other people who havebeen affected by the tsunami and who depend on thesea, the crippled fishing industry, and the coastal
agriculture for their livelihood. These include vendors and labourers, salt pan and lime workers,
shrimp farmers, women involved in seaside limestone production, small coastal business, petty
traders, Dalit and tribal inland fisherfolk, and farmers whose land has been made uncultivable by the
influx of salt water. Restoring this diversity of livelihoods requires more than mending damaged nets andputting catamarans and trawlers back to sea.
Moreover, no compensation has been received forloss of livestock.

I

The local, national, and international relief efforts
have been overwhelming, with activities now shifting from relief to rehabilitation. However not all of
the communities affected by the tsunami have hadaccess to relief assistance nor have all communities
benefited equally from the rehabilitation operations.
Many, especially members of marginalized and vulnerable groups, have not received the same
opportunities to restore their lives.

Discrimination in Relief
A number of affected communities and individuals
have not received the relief announced by the state
government:* Relief has not been provided for the disabled andno special steps have been taken nor compensation
given for the physically or mentally disabled.
* Many widows from affected fish-worker communities have not been given any relief as they do notpossess the identity card issued by the fisheries
department. This extends to all other single women
and women-headed families, leaving a number of
the affected communities outside the relief net.
* To a large extent Dalit people have been discriminated against by the relief workers in the camps,
relief and rehabilitation work organized by the government, and other post-tsunami organizations.
* Muslims, tribals, and scavengers brought for theremoval of bodies were also admitted as communities vulnerable to prejudices operating through theofficial relief machinery.
* Tenants who were living in rented houses havebeen completely excluded from any shelter relief.

The Tsunami Relief and Rehabilitation Coordination- Tamil Nadu and Pondicherry (TRRC) - was first
conceptualized on 31 December 2004 and established on 3 January 2005. The purpose of TRRC is toorganize state level consultations on state-civil society partnership, monitoring of human rights, and thestatus of tsunami-affected children. Its three main
objectives are to coordinate the relief stage of thework, coordinate the immediate and long term rehabilitation efforts, and monitor the efforts of thegovernment in this regard. Community participation
is a key consideration as is the responsibility to communicate the views and the demands of thecommunities to the government. TRRC is currently
in the process of conducting rapid assessment studies
on a range of issues and has led five consultations.
This report provides a summary of the issues raisedand discussed in the consultations and studies conducted.

The situation of the Dalits*Gal Frenkel is a volunteer of The Tsunami Relief andRehabilitation Coordination - Tamil Nadu andPondicherry (TRRC).

Rehabilitation and Restoration of Livelihoods-2-

Although the government has announced the need torespect the affected communities' right to choose thelocation, design and materials for the temporary shelters, blatant violations of these orders were identified
in the temporary shelters constructed both by thegovernment and NGOs. Moreover, no proper formal
assessment of livelihood loss in the coastal economy
has been done in consultation with the community.
Numerous community representatives have emphasized the urgent need for far greater community
involvement in the formulation of the rehabilitation
agenda, distribution of funds and materials, andimplementation of long-term relief programming.
They should be a portal for truly broad-based andinclusive community participation and ownershipover the direction of local relief activities, evenwhile soliciting the input and advice of government
officials, outside experts, donor agencies, and nongovernmental organizations (NGOs).

According to the National Campaign on Dalit
Human Rights (NCDHR) a Dalit is not considered tobe part of the human society, but something existingoutside it. The Dalits perform the most menial anddegrading jobs and are regarded as "untouchables",and for higher caste people Dalits are seen as polluting. This discrimination against Dalits in everyday
life in India has intensified in the tsunami aftermathand is rampant within the relief camps.
The Right to the CoastIn 1991 the Central Government declared Coastal
Stretches as the Coastal Regulation Zone (CRZ)
Notification, and restrictions were imposed on thesetting up and expansion of industries and operations
within 500-meters of the high tide line. Nevertheless,
the CRZ Notification regarded the traditional fishingeconomy and its land-use patterns as an integral partof the coastal environment. In doing so, the traditional fishing industry and coastal settlements wererecognized as bearers of certain customary rights tothe lands they have long occupied. It is on this basisthat the CRZ Notification provides for explicit
exemptions from the 500-meter setback requirement.
However, at the present time, fishing settlements arebeing relocated away from their original seashore
location to more than 2 km inland largely due to afalse government campaign warning of a future
tsunami disaster. This relocation poses a major threat
to these coastal communities' livelihoods, where
access to the sea is essential. At the same time,
tourism and industry infrastructure remains intact.

The Wellbeing of Children and Women
Many children have been orphaned, while others
have lost family members and friends. Both schools
and communities play considerable roles in the provision of care and support to these children. As analternative to external adoption "community parenting" by widows, the extended family, or othercommunity members is the preferable and more natural solution for the care of orphans, which would
also reduce the risk of child trafficking. At the sametime schools should play a new, more complex andcomprehensive role in relief and rehabilitation, andprovide continuous social and psychological support
to their students. In administrative terms an effort
should be made to reduce or wave school fees,
donate books, replace educational certificates, andprovide transportation to school-going children from
affected areas. It is important to note that to date noproper and complete assessment in the area of preschool and unborn children has been completed.

In this context, the state seems to be taking advantage of the now cleared coasts coupled with thecurrent vulnerability of these coastal communities,
whereas there has been no attempt to ascertain theviews of the coastal community on the forced relocation. It is believed that tourism and real estateinterests together with the presence of large multinational institutions such as the World Bank and the
Asian Development Bank - groups that have historically shown little regard for coastal preservation - aredriving this relocation initiative.
A State level meeting initiated by TRRC and involving community leaders and representatives
confirmed the notion of the coastal communities'
right to the coast and agreed to refuse forced relocation.

Assuring the good health of children and women is
uncertain. These vulnerable groups need special
attention and counselling in the areas of health,specifically nutrition, disease prevention, andhygienic conditions. In addition, 15,000 pregnant
women affected by the tsunami have been identified
as an especially vulnerable group as no importancehas been given to women's health and pregnant
women have not been persuaded to care for themselves properly. Moreover, an increase in theCommunity Involvement-3-

remove settlements under the pretext of protecting
the people.

prevalence of anemia has been identified (currently
estimated to be 85% of the affected population).
Combined with the stress of the aftermath of thetsunami, this could lead to an increase in infant andmaternal mortality.

Communities must have a major stake and voice inrebuilding their homes, ensuring their livelihoods,
and protecting the environment. The government
should act as a facilitator and an agent of accounta b i l i t y, while ensuring local integration in astate-wide rehabilitation program which addresses
needs - economic, social, and ecological - that reachacross communities.

The Environment
The tsunami has reemphasized the need to protect
the coastal environment and marine ecology, especially from the tourism industry, mining industry,and large industries that release their pollutant waste
into the sea. Community leaders have demanded that
all these industrial activities along the coast bebanned.

Assuring the physical and mental health of tsunamiaffected children, providing a sense of security, andenabling successful rehabilitation are additional,
major challenges. While it is recommended that
community social workers monitor the "community
parenting" and provide support services to maintainthe best interests of the children, these social workers
will require compensation. In addition, it is imperative that the government provide a stipend for
widows and orphans to make this process easier.

Rapid assessment studies conducted by TRRC haveshown that when coastal ecosystems were not disturbed by human intervention many lives were
saved. Coastal vegetation such as mangroves provided a natural barrier and protected people. Many
violations of the CRZ Notification were evident in
the most affected areas. Implementing the CRZ
Notification and curbing activities such as sand-mining, modification of the coastal landscape, andindustrialization are imperative to prevent thedestruction of natural reserves and protect thoseresiding in the coastal areas.

In schools the training of teachers in psycho-social
counselling could be one method for the successful
rehabilitation of children.
Health challenges include the provision of properand sufficient food, close surveillance to prevent epidemics, the availability of adequate drinking waterand hygienic sanitary facilities, and increased healtheducation and counselling on nutrition and prenatal
care.

Challenges
It is saddening that even at a time of catastrophe anddespite ongoing goodwill there are still communities
that suffer from discrimination due to religion, caste,
occupation, trade, or gender from other tsunamiaffected communities as well as government andNGOs. TRRC, together with other community
activists and local NGOs, is actively seeking toensure that all those currently experiencing discrimination in relief and rehabilitation will receive equal
treatment and compensation, the latter based on morethan simply loss of property. Moreover, social action
must be taken to eradicate discrimination within the
Indian society, with an emphasis on Dalits.

Another significant challenge concerns the interaction between the environment and the population.
While environmental assessments have demonstrated
that the less developed regions and the communities
residing in those regions were almost unharmed by
the impact of the tsunami, marine biospheres andcoastal ecosystems should be conserved to protect
land and people.

For further information, please see our website at
www.trrc i n d i a . o rg or contact: TRRC Secre t a r i a t ,People's Watch Tamil Nadu, No. 6, Vallabai Road,
Chokkikulam, Madurai Tamil Nadu 625 002 India;
ph (91-452) 2539520; e-mail: info@pwtn.org

Another challenge is ensuring the affected communities' source of livelihood. The relocation of coastal
communities inland and the distance from the sea
will impair the ability of the fisherfolk to ensure theirlivelihood. While guaranteeing the safety of thecoastal communities should be a government priority
and responsibility, the government should not-4-Invisible Victims of the Tsunami- Burmese Migrant Workers in Thailand
Tetsu Hakoda*
impoverished its people to the point of pushing themout to perish in the neighboring country.

he tsunami devastation of the beach areas insouthern Thailand, causing death to numerous
foreign tourists and Thais, and the generosity extended by the Thais to the surviving victims and theirrelatives are some of the lasting images of the tsunami disaster. Unfortunately, very little is known about
the other group of foreign victims, the Burmese 1
migrant workers.

T

Damage within Burma and relief activities
The Burmese government is known for its reluctanceto publicize events, particularly natural disasters,
within its borders. There was no media coverage ofthe recent tsunami at the onset.6 The damage reported initially by the military government was so
insignificant raising doubts from the international
community about their veracity. Surveys by theUnited Nations (UN) agencies and international nongovernmental organizations (NGOs) estimated 60 to
80 dead, 10,000 to 15,000 affected for long-term,and of these, 5,000 to 7,000 affected directly.7 Eventhese figures are small compared to those compiledby the foreign media. Since it is not possible tofreely conduct surveys within the country, accurate
information on the damage is still unavailable.

Before the tsunami, more than 120,000 Burmese(men, women and children) were living in the 6
provinces on the western coast of southern Thailand.
They comprised 6.4% of the population of 1,860,000(as of 2000) in this area. It is estimated that 60,000of the Burmese were affected.2 The biggest difference between the plight of the Burmese victims andthe Thai and foreign tourist victims was that the former were ignored by their own (Burmese)government, and thus were mainly not counted as
victims of the disaster.
O fficial figures released by the Burmese
government3 on 1 February 2005 show 61 dead and
42 injured. 4 But these figures refer to those within
Burma. The military government has yet to refer tothe several tens of thousands of Burmese affected by
the tsunami in southern Thailand.

Damage has been confirmed in the coastal areas of
Ayeyawaddy and Tanintharyi divisions as well as
Rakkhine state in lower Burma. Most of the residents
were small-scale fisherfolk, and suffered economic
devastation. The relief activities right after the tsunami consisted mainly of provisions of food, water andother necessities by UN agencies such as UNICEF,
and the Myanmar Red Cross. Mid- to long-term support was being planned, including support for
full-scale reconstruction.8

The presence of more than a million Burmese
migrant workers in Thailand, engaged in low-paid
work, is the direct effect of social confusion and economic collapse brought on by the Burmese
government's mismanagement. Southern Thailand is
no different. The Burmese, working for far below thestatutory minimum wage of approximately 5 US dollars per day, support the major local construction,
fishing, farming and tourist industries.

Burmese migrant workers in Thailand
Burmese workers in Thailand affected by the tsunami suffer from multiple difficulties. They not only
suffer from psychological trauma, separation fromcolleagues, friends and families, destruction of livelihood, and worsening sanitation, but even worst they
are beset with unemployment, fear of being arrested

The latest estimates put the number of Burmese
deaths in Thailand at 2,500 to 3,000, and 5,000 to
7,000 missing. The figures are comparable to the5,395 dead and 2,991 unaccounted for (including
foreigners and those whose nationalities are
unknown).5 However, awareness and aid from theinternational community have been insufficient andthe Burmese government continues to ignore theplight of these people. The military regime has*Tetsu Hakoda is a staff/volunteer of BurmaInfo (Burma
Information Network), an internet-based project for infor mation and advocacy work that mainly aims to inform theJapanese public and policy makers about the real situa tion in and around Burma (Myanmar) as well as its
regional affairs.

-5-

of its activities based on its report dated 14 February2005 is as follows.

and deported, and lack of information on how to getback their legal status in Thailand (or get relief
goods and services). The Thai authorities insist that
relief materials were distributed without discrimination, but few migrant workers went to the
distribution centers to receive them. It seems that the
Burmese initially received no aid at all.

The operations focused on the area extending from
Takuapa district to Khao Lak in Phang Nga province,
where many Burmese migrants reside.TAG relief
teams visited plantations, construction sites andforests, where the Burmese have taken refuge, to distribute food, other necessities and art materials forchildren. They also informed them that they canapply with the Thai government for the reissuance oflost identification cards, which affect many of them.
These assistance activities are seen as provisional
measures to fill the gap until the workers find stable
work.

There were grounds for this fear. 2,000 Burmese
were deported within 3 weeks after the tsunami, andcases of members of the police robbing them ofmoney occurred repeatedly. Many Burmese took
refuge in the forests, plantations and abandonedbuildings. Many others left the area because of lackof work. Due to these reasons the estimated numberof Burmese workers in Phuket and Phang Ngaprovinces dropped to half from 66,000.9

Fear of being arrested and deported put physical andmental pressure on the victims and make relief activities difficult. The Thai authorities' decision to haltarrest and deportation of migrants is a step forward.
There is also an urgent need to reestablish the legal
basis for residing in the country by reissuing identification and health insurance cards in order to ensure
the safety and dignity of the migrants. TAG members
assisted the Burmese in applying for the reissuanceof identification cards at the district offices, but thecompletion of procedures for all persons concernedis expected to take considerable time.

Exacerbating their situation were false reports oflooting by the Burmese published by Thai tabloids.
The deeply rooted anti-Burmese sentiment held by asection of Thai society was fanned and sometimes
made relief activities diff i c u l t .1 0 The sensational
media coverage notwithstanding, it should beemphasized that many Thais provided assistance to
Burmese victims.11

Assistance for Burmese migrant workers
Meanwhile, the problem of the missing and the deadis huge. The grief of the Burmese families is so
great; some of them bring photographs on registration forms, as the only remaining identificationmaterials of the deceased. Even when funeral rites
are held, cremation may not be possible. Closer
cooperation among related government offices isnecessary in identifying the remains.

The Tsunami Action Group (TAG) is the main player
in the relief activities for Burmese migrant workers.
TAG began its activities in early January 2005. It
consists of Human Rights Education Institute of
Burma or HREIB (an organization of Burmese
exiled in Thailand), organizations of Burmese
migrant workers in Thailand, and other organizations
working on Burmese issues.

TAG's activities are financially supported by
Burmese around the world, including Japan, and US
Campaign for Burma (USCB), with cooperationfrom Burmese students in Thailand, NGOs in
Thailand, French Catholic Committee against
Hunger and for Development (CCFD), Novib(Oxfam Netherlands), among others. From Japan,
Ayus Buddhist International Cooperation Network,
People's Forum on Burma, Burma Office Japan and
Burmese Relief Center-Japan sent funds to TAG.

TAG initially surveyed the affected areas, provided
material assistance such as food, clean water andother necessities, and paid for funeral costs. But atthat time, they were refused identification and returnof the bodies of the deceased, let alone hold funerals.
Aung Myo Min of HREIB in an interview for Inter
Press Service, comments, "I know we are treated as
second or even third class citizens in this country, but
this is not the way to treat our dead."12

Lastly, I extend my heartfelt condolences to thosethat have lost their loved ones in the tsunami, andAs of February 2005, TAG was moving from emergency relief operations to the next step. An overview-6-6. Burma Office Japan, "Biruma seifu wa naze tsunami
jouhou no jijitsu o kouhyou shinainoka" [Why doesn't
the Burmese government publish the facts about thedamages by the tsunami?] B i ruma Ja-naru ( B u r m a
Journal), (Burma Japan Office January 2005),
http://www.burmaoffice-jp.org
7. World Health Organization, "Myanmar Ts u n a m i
Situation Report," op. cit.
8. Ibid.
9 . Tsunami Action Group, "Situation Report 2," 8January 2005,
http://www.saydanatsunami.org/report .php?#report2
10. Sonny Ibaraj, "Thai Compassion for Burmese
Migrants Wears Thin," Inter Press Service, 13 January2005,
http://www.ipsnews.org/interna.asp?idnews=27021
11. Tsunami Action Group, "Situation Report 3: An
update on the situation of Burmese migrant workers
a ffected by the tsunami in Phang Nga, southern
Thailand," 31 January 2005,
h t t p : / / w w w. s a y d a n a t s u n a m i . o rg / r e p o r t . p h p ? # r e p o r t 3 ;Tsunami Action Group, "Situation Report 4: TA G
(Tsunami Action Group) Update - An update on theactivities of TAG and the situation of Burmese migrant
workers affected by the tsunami in Phang Nga, southern
Thailand," 4 February 2005,
http://www.saydanatsunami.org/report.php?#report4
12. Sonny Ibaraj, op.cit.
13. Tsunami Action Group, "Situation Report 4" op.cit.

wish swift recovery to those who were injured.

For further information please visit
www.burmainfo.org

Endnotes
1. "Burmese" in this article refers to all persons fromBurma and not to an ethnic group.
2. Tsunami Action Group, A Khao Lak Diary, 4th-15th
January 2005,
http://www.saydanatsunami.org/khaolak.pdf
3. The current military regime (it was previously named
State Law and Order Restoration Council [SLORC] andchanged to State Peace and Development Council[SPDC] in 1997) changed the name of the country fromBurma to Myanmar. The author uses the name Burma as
the current regime has no legitimacy, therefore the namechange cannot be recognized. For more details, see Yuzo
Uda, "Biruma ka miyanma- ka (Burma or Myanmar) ,"http://www.uzo.net/notice/quo/b_m.htm .
4. "Press conference on National Convention, relief
works for victims of Tsunami, subversive acts committed by internal and external destructive elements," NewLight of Myanmar, 2 February 2005,
http://mission.itu.ch/MISSIONS/Myanmar/05nlm/
n050202.htm#Press%20conference%20on%20National% 2 0 C o n v e n t i o n , % 2 0 r e l i e f % 2 0 w o r k s % 2 0 f o r % 2 0 v i ctims%20of%20Tsunami,%20subversive%20acts%20committed%20by%20internal%20and%20external%20destructive%20elements, World Health Org a n i z a t i o n ,"Myanmar Tsunami Situation Report," Weekly Update
3, 27 January 2005,
http://w3.whosea.org/en/Section23/Section1108/Section
1835/Section1851/Section1869_8657.htm, International
Federation of Red Cross and Red Crescent Societies,"Earthquake and Tsunamis (Revised Preliminary Appeal
28/2004) - Fact Sheet no. 4," 18 February 2005,
http://www.ifrc.org/cgi/pdf_appeals.pl?04/2804f4.pdf
5. Sosuke Yamamoto, Sumatora-oki Dai-shinsai- otsunami ni yoru Biruma (jin) ni kansuru higai ni tsuite[Tsunami off coast of Sumatra - on damages suffered by
Burma (Burmese) by the tsunami], (material for People's
Forum on Burma, 12 February 2005),
http://www.burmainfo.org/pfb/YamaotoTsunami200502.
html , World Health Organization, "Thailand Tsunami
Situation Report," No. 34, 22 February 2005,
http://w3.whosea.org/en/Section23/Section1108/Section
1835/Section1851/Section1870_8810.htm-7-Proposed Human Rights Commission in Japan: A Critique
Koshi Yamazaki*
fter setting aside in 2003 a draft bill that would
create a national human rights institution in
Japan, the government and the ruling Liberal
Democratic Party (LDP) agreed in principle toresubmit it, after some modifications, during the2005 Diet (Parliament) session. The 2005 draft
Human Rights Protection Bill (draft Bill) (1)"freezes" provisions that place human rights violations by the media within the scope of "special
remedies" procedures; and (2) provides for the revision of the law if necessary after a certain period oftime from enactment.

A

Human rights organizations and the media reacted
strongly to the move to resubmit the draft Bill. They
argued that (1) the independence and ability of the"Human Rights Commission" ("Commission") to
respond appropriately to violations occurring in government institutions such as prisons and immigration
detention facilities would be undermined if set up
under the Ministry of Justice; and (2) there are provisions in the draft Bill which might deter
investigation and reporting by the media.
At the same time, members of the ResearchCommissions (including those on human rights) of
the LDP Judicial Affairs Division, during its 10
March 2005 meeting, argued against the draft Bill bysaying that (1) the definition of human rights violation under the draft Bill is vague and would infringe
other rights protected by the Constitution, such as
freedom of expression; and (2) the selection processof the Civil Liberties Volunteers, who would engage
in providing remedies under the "Commission", isunclear. They also regret the deletion of the nationality clause. This situation jeopardizes the party
decision to resubmit the draft Bill.
The draft Bill establishes a "Human Rights
Commission" that provides accessible, swift and nocost remedies to people who have been
discriminated, abused or whose human rights havebeen otherwise violated. Aside from the 5-member,Tokyo-based "Commission", the draft Bill also provides for the appointment of "Civil Liberties
Volunteers" all over the country who will be attached
to it ("Commission"). The "Civil Liberties
Volunteers" will deal with issues in their respective
local areas.

-8-

The recent discussions on the draft Bill are going
off-course from the main issues involved. Bearing
the current situation in mind, why a new humanrights remedies body is necessary and the shortcomings in the draft Bill should be pointed out.

Current situation in Japan
In Japan today, human rights violations occur
between private persons in cases of discrimination in
employment, marriage, etc., against people of
Buraku origin, Ainu people, and foreign residents;
xenophobia; child abuse; domestic violence and discrimination based on disabilities. Violations by
public authorities occur as abuses in prisons, immigration detention facilities and police cells.
Violations by public authority rarely attract publicattention, unless they involve major court decisions.
The Japanese Constitution provides that everyone
shall be respected as individuals, are equal under thelaw, and will not be discriminated on grounds ofrace, creed, sex, social status or family origin(Articles 13 and 14). Japan is also party to theInternational Covenant on Civil and Political Rights,
whose Article 2 makes Japan commit itself torespecting and ensuring those rights to all people inJapan without discrimination.
Merely providing for rights in the Constitution andinternational treaties do not make these rights a reality, however. When rights are violated, people will
not reach out to help unless the person involved
seeks remedies by him/herself.
The current human rights remedies system
A person whose rights are violated can seek the helpof the civil liberties administration section of the
Ministry of Justice and the complementing system ofcivil liberties volunteers, comprised of approximately 14,000 volunteers nationwide. If they do notprovide adequate remedies, judicial remedies can besought. There are also private initiatives, such as the
Appeal for Human Rights Relief system by the Bar*Koshi Yamazaki is a law professor in Niigata Law
School, Niigata University, Japan.

ers violations by public authority. But in order toclearly make the violations by public authority subject to remedies, they should be treated as anothertype of violations. Treating human rights violations
by public authority, which relates to the exercise ofstate power that has a high degree of intransparency,
on the same level as those by private persons ineffect relatively minimizes their seriousness.

Associations.
But the civil liberties administration and volunteers
have so far not enjoyed much public trust. Recourse
to court takes time and money, and requires the victim to speak in public about the violations anddiscriminations suffered. These burdens forced many
people to give up seeking judicial remedies.
Meanwhile, the Bar Associations have no investigative authority in their human rights relief activities
and their recommendations and warnings do nothave legal binding force. As a result, many victimsof violations continue to suffer, abandoning the pursuit for remedies.

Special procedures for investigating allegations ofhuman rights violations by administrative organs andcivil servants, and providing remedies for them, arenecessary. It can also be provided that concerned
administrative organs are duty-bound to cooperatewith the "Commission" in cases of violations by
them.

Shortcomings in the draft Billc. "Human rights violations by the media" and thecompetence of the "Commission"

The 2003 draft bill prohibits human rights violations
such as discrimination and abuse, provides measures
to prevent such violations, and provides for remedies. Since Japan does not yet have a general andcomprehensive human rights remedies law, the factthat such a draft bill was prepared is a welcome
development. The proposed "Human Rights
Commission" under the 2003 draft Bill has theappearance of a national human rights institution.

The draft Bill allows persons, who suffer infringement of privacy or defamation, or excessive media
attention, to apply for remedies. On receiving theapplication, the "Commission" may initiate special
remedies procedures including issuance of recommendations and their publication. The standards andrequirements for deciding whether an infringementof privacy or excessive media activities has occurred
is unclear, however, and arbitrary decision by the"Commission" may place undue pressure on themass media.

The current draft Bill, which has not been submitted
to the Diet as of 23 March 2005, however has several
shortcomings and needs fundamental change, as follows:

To ensure that the media freely investigate and makereports, remedies for their human rights violations
should be taken cared of by their own self-regulatory
body. Provisions placing them within the scope ofthe special procedures should be deleted and not"frozen." No national human rights institutions inother countries take up violations by the media as aseparate category.

a. Unclear definition of human rights
Article 2 of the draft Bill defines "human rights violations" but not human rights. An unambiguous
definition of human rights is necessary in order toprovide a clear judgement standard for the"Commission," and to prevent the scope of humanrights from being arbitrarily diminished. An unambiguous definition of human rights can be stated asfollows, "for the purpose of this Bill, the term"human rights" shall mean rights stipulated in theConstitution as well as treaties concerning humanrights which Japan has ratified or acceded to."d. The independence of the "Commission"
The Paris Principles attaches great importance to theo rganizational independence of national humanrights institutions. The "Commission" foreseen by
the draft Bill is under the jurisdiction of the Ministerof Justice (Article 5), based on Article 3 of the
National Government Organization Law. But effective remedies for cases of violations by publicauthority cannot be expected from a "Commission"that is under the jurisdiction of the Ministry ofJustice since they actually occur in institutions with-b. Minimized seriousness of human rights violations
by public authority
Article 3 of the draft Bill lists discrimination, illtreatment, and violation by the media as the three
types of human rights violations. This provision cov--9-

in the Ministry such as the prisons and immigration
detention facilities. In a system, where the"Commission" is under the jurisdiction of the
Minister of Justice and its secretariat staffed by officers of the Ministry, the independence of the"Commission" cannot be effectively guaranteed andit will face difficulty in gaining public trust.
The "Commission," therefore should appropriately
be established under the Cabinet Office, which oversees and coordinates the administrative organs froma higher vantage point (or under the Cabinet, as in
the case of the National Personnel Authority).
e. "Civil Liberties Volunteers"
The "Civil Liberties Volunteers" system under thedraft bill will not be much different from the current
Civil Liberties Volunteers system, except that it will
be placed under the "Commission." There will be nonationality requirement, however, to reflect social
diversity in the composition of the "Volunteers". But
still there is a controversial call within the LDP for"Volunteers" to be holders of Japanese nationality,
causing a lot of debate.
"Civil Liberties Volunteers" will give advice andconduct general inquiries, but will not have any powerful authority for special investigations. These"Volunteers", around 14,000 of whom will be active
nationwide, will be in a position to understand thehuman rights issues of the local area, and it is necessary to have people with diverse backgrounds inthese positions. Considering the fact that the numberof foreign residents is increasing, and facing various
human rights violations, people of foreign nationality
should also be able to become "Civil Liberties
Volunteers."g. Strengthening the views/recommendations, their
publication, and policy proposal functions of the"Commission"
The "Commission" may submit its views to thePrime Minister, the Diet, etc. according to the draft
Bill. In order to achieve not just solutions to individual cases, but radical solutions to human rights
issues, it should be able to submit not just "views",
but "policy proposals."
The "Commission" is expected to play a role in (1)the formulation of human rights education andawareness-raising policies; (2) legislation, amendment and abolition of laws that implement humanrights policies; (3) changing administrative practices
on human rights policies; (4) ratification of, andaccession to, human rights treaties; (5) cooperation
with the human rights offices of the UN and othercountries; and (6) preparation of national reports
required by human rights treaties.

Conclusion
Many people in the Japanese society suffer fromhuman rights violations and discrimination. To
recover the innate rights of these people and to maintain a just society, it is the duty of the Diet and the
Cabinet as well as a national concern to improve thehuman rights remedies system, including the establishment of a national human rights institution. The
draft Bill is expected to be a part of this endeavor. It
should not be buried in political and ideological conflicts.

(This article has been translated and re-edited froman article in Sekai No. 739, 2005.5)

f. The need for local human rights commissions
It will make no sense to have a "Commission,"unless it is accessible to the people. Only one central"Commission" will be established under the draft
Bill, and its members are expected to address anddecide on human rights issues from all over thecountry. Human rights issues often arise out of normal every day lives of the people, in the context ofthe local features, customs and history. To solvethese problems effectively, and in a manner compatible with the local situation, a "Commission" must
exist at prefectural level as an independent officewith power to provide remedies.

For further information, please contact: Prof. Koshi
Yamazaki, Niigata Law School, Niigata University,
Japan; ph/fax: (81-25) 262-7451; e-mail:koshy@f5.dion.ne.jp-10-Human Rights Behind Bars:
The Manila City Jail Experience
Ma. Rita Arce Alfaro*
erhaps the most inhuman act that society commits against prisoners is the blatant disregard fortheir rights. The thought that prisoners have humanrights escapes most people. While part of a prisoner's
punishment is deprivation of certain civil rights,
every prisoner has rights mandated and protected by
the United Nations Standard Minimum Rules for theTreatment of Prisoners,1 the International Covenant
on Civil and Political Rights, and the Convention
Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. However, inthe face of all these international instruments, society
persists in violating the human rights of prisoners byomission and apathy - neglecting to do what ought tobe done and turning a blind eye on what needs to beaddressed. The Philippine Jail System, particularly
the Manila City Jail, exemplifies this situation.

Plines. While men and women are housed in separate
compounds, the juvenile delinquents are mixed withthe adult prisoners, prisoners with mental illness are
mixed with those who are mentally healthy, and thephysically ill with the able-bodied. This is in directcontravention of the United Nations Standard for
Minimum Rules for the Treatment of Prisoners (UNMinimum Rules), which provides:
8. The different categories of prisoners shall be kept inseparate institutions or parts of institutions taking
account of their sex, age, criminal record, the legal reason for their detention and the necessities of theirtreatment. Thus,(a) Men and women shall so far as possible bedetained in separate institutions; in an institution
which receives both men and women the whole of thepremises allocated to women shall be entirely separate;(d) Young prisoners shall be kept separate fromadults.

Within prison walls
The Manila City Jail currently accommodates close
to 5,000 prisoners who are classified by law as
detention prisoners, city prisoners and youth offenders. Within its walls are men, women, minors, people
with mental illness, and those with health problems.
Prisoners, both undergoing trial and convicted, aremixed together in this prison.
Surrounded by a shopping mall and stores, railway
stations, major streets and a university, the Manila
City Jail seems incongruous to the idea of sequestering criminals away from society for the purpose of
rehabilitation and reformation. Inmates are hardly
removed from society when they are placed in the
midst of the hustle and bustle of city life.
While the Philippine government continues to initiate various projects and schemes on appropriate jailrelocation such goal remains buried under thebureaucracy and suffers from lack of funding. Prison
population increases as new laws provide for new
offenses. The new Dangerous Drugs Act, which tookeffect in 2002 and provided for stricter penalties andlowered the threshold of offense necessary for arrest,
caused the recent upsurge of prison population.
The jail structure
The Manila City Jail has four main compounds housing four groups divided along ethnic and gender

82. (1) Persons who are found to be insane shall not be
detained in prisons and arrangements shall be made toremove them to mental institutions as soon as possible.
(2) Prisoners who suffer from other mental diseases orabnormalities shall be observed and treated in specialized institutions under medical management.

Each compound has one main hall and one main dormitory. It is segregated from the other compounds bywalls and fences. A dormitory, housing all the prisoners of the compound, has sparse facilities. Affluent
inmates can pay for a space (called "condominium")that separates them from other inmates by wooden
walls, and for 90 US dollars a spartan cot. The lessaffluent may avail of the "apartment," a space sharedby 2-4 people. Destitute inmates usually sleep on thesahig or floor with hardly any bedding. Rice or flour
sacks, even newspapers, are utilized as bedding
while pillows and blankets are rare. Again this situation violates the UN Minimum Rules which stateclearly that:
9. (1) Where sleeping accommodation is in individual
cells or rooms, each prisoner shall occupy by night acell or room by himself. If for special reasons, such as
temporary overcrowding, it becomes necessary for the*Ma. Rita Arce Alfaro is a law graduate who headed theManila City Jail Project of the Far Eastern University
Legal Aid Bureau (Philippines). She was an intern of
HURIGHTS OSAKA.

-11-

central prison administration to make an exception tothis rule, it is not desirable to have two prisoners in acell or room.
(2) Where dormitories are used, they shall be occupied
by prisoners carefully selected as being suitable toassociate with one another in those conditions. There
shall be regular supervision by night, in keeping with
the nature of the institution.
10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shallmeet all requirements of health, due regard being paid
to climatic conditions and particularly to cubic content
of air, minimum floor space, lighting, heating and ventilation.

The typical dormitory is cramped, poorly lit and withhardly any ventilation. It stinks even if cleaned andscrubbed with the harshest of disinfectants. The dormitory is blistering hot at most times of the year.
Inmates fall easy prey to outbreaks of skin diseases
such as boils, infections, and various allerg i e s .
Tuberculosis proliferates inside the prison walls.
The Manila City Jail was originally built to accommodate 1,000 inmates, and yet it currently houses
approximately 5,000 inmates. Inmates take "shifts"
in sleeping on the bare floors. During daytime,
inmates could not slump or sit on the floor for lackof space. They are forced to stand all day long.

family visitors or charitable organizations. Most
donations pour in only during Christmas holidays.
Due to limited food supply, the inmates are served
rice mixed with sardines (or any other viand) from acauldron. The inmates liken this to the way cows are
fed in ranches, calling meal time as "ranch time"(oras ng rancho). The food has little nutritional
value and prepared in unsanitary way. What is fed tothe prisoner in the end would look like a feed, mush,or worse, slop.
With limited water supply due to non-functioning
pipelines, personal hygiene and sanitation are highly
compromised.
Human rights behind bars
A prison system facilitates punishment, retribution
or retaliation, expiation, deterrence, and reformation,
as well as the protection of society. But in manycases, these aims are not served. The prison system
is constrained to punishment and retribution per se;with little regard for the reformation and rehabilitation of the offender. With the indifference to theplight of the prisoners, society yet creates more monsters out of them. The main thrust of present day
prison system has not evolved from the time of theguillotine. But if urgent needs are to be addressed,
reform in the prison system is a must.

Food and sanitation
The daily budget allocated per inmate is merely 35
pesos (less than 1 US dollar). This amount covers
three meals a day in addition to the budget for drinking water. The UN Minimum Rules state that:
20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional
value adequate for health and strength, of wholesome
quality and well prepared and served.

The harsh reality is that the meal allowance cannot
possibly be stretched to sustain a prisoner. Moreover,the Bureau of Jail Management and Penology admits
that with the increasing number of prisoners anddetainees, the budget allocation would often be too
thinly stretched in light of severe budgetary constraints in the government coffers.
Prison food is usually comprised of rice, a basic staple, and viands (usually canned sardines). On luckydays when donations arrive, a variety of cannedmeats may be served along with vegetable stew.
Variance in viands often depends on donations from

-12-

The Manila City Jail experience symbolizes the present-day problems of the prison system.
What are placed behind bars are not just the physicalbodies but the fundamental human rights of prisoners as well. Prisoners, while viewed as sinners
against society, are human beings too, something
neglected by many.
As Fyodor Dostoevsky opined, "A society should be
judged not by how it treats its outstanding citizens
but by how it treats its criminals."2 Let this be ourguide.

Endnotes
1. Approved by the Economic and Social Council (resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII)
of 13 May 1977.
2. Taken from his novel Memoirs of the House of the
Dead (1860).

Nepal Under Military Rule: The Undermining of
Democracy and the Constitution
6th Appeal from the Nepalese Human Rights Community
March 28, 2005
1. Appeal. On behalf of Nepal's beleaguered civil society, we urge the member States assembled at the 61st
Session of the UN Commission on Human Rights (CHR) to assist in establishing human rights as a verifiable
precondition for peace in Nepal.
2. Lack of Improvement in Human Rights Situation. Previous CHRs have issued strong statements regarding persistent impunity in the face of ongoing gross and systematic violations of human rights andhumanitarian law by both the Royal Nepalese Army (RNA) and the Maoist insurgency. Yet, the human rights
situation has continued to deteriorate. We have been victims and witnesses of arbitrary arrests and detentions,direct and indirect threats through surveillance and harassment, censorship of the media, as well as restrictions on freedom of movement, assembly, and association. Civic space has been deliberately eliminated. We
are unable to investigate or report on human rights violations without putting our own security at risk.
3. Collapse of the State. Since 1 February 2005, Nepalese society has endured its third State of Emergency
since the RNA was given unified command of security forces in 2001. An already failing State now points
towards collapse with the suspension of the Constitution, the absence of the rule of law, and the total failureof public institutions. Security forces operate with impunity under the arbitrary control of a Monarchy that isconstitutionally unaccountable to the judiciary.
4. National Human Rights Commission (NHRC). The NHRC mandate is limited by both formal and selfimposed restrictions resulting from the climate of intimidation and control. Formal restrictions have included
travel prohibitions against Commission members and the requirement to seek permission from military
authorities before visiting detainees in civilian facilities. Self-imposed restrictions limit the extent to whichthese impositions are challenged, in addition to limiting reporting and follow-up on serious cases, including
cases involving direct threats against NHRC officials. The recent formation of an executive High-Level
Human Rights Committee with an ambiguous mandate to "assist" the NHRC further demonstrates Cabinet
intentions to limit the independence of the NHRC.
5. Creation of Armed Militia. During the last two years, State-sponsored militias have been created in districts across Nepal, including Sarlahi, Ilam, Nawalparasi, and Dailekh. In February 2005, the Home Minister
led a delegation of three Cabinet Ministers to Kapibastu, where they encouraged the retaliation of civilian
militias against suspected Maoist sympathizers. During the same month, vigilante groups burned and looted
entire villages in Kapilbastu. Revenge killings began immediately thereafter. The restrictions on monitoring
and reporting resulted in delay of over one month before evidence of these violations of human rights andinternational humanitarian law began to emerge.

continued on page 15.
-13-

Events
Events Held
The Canadian Human Rights Foundation, theCanadian Human Rights Commission, and the
National Human Rights Commission of Nepal heldthe "Workshop on Human Rights Education andPromotion of Economic, Social and Cultural Rights"
on 7-11 March 2005 in Kathmandu. The workshop
was designed to build the capacity of the National
Human Rights Commission to conduct human rights
education and promotion activities. The workshop
was implemented in the context of furthering economic, social and cultural rights in Nepal as well as in thecontext of the ongoing internal armed conflict and theemergency situation that the country is currently faced
with.

munity advocates working in Australia and the AsiaPacific region. The program entitled "Indigenous
Peoples, Human Rights and Advocacy - A Human
Rights Training Program for Indigenous Advocates in
the Asia-Pacific Region" will be held on 20 - 29 June
2005 in Darwin, Northern Territory, Australia. The
training provides: Knowledge of international humanrights law and the United Nations system, with particular emphasis on Indigenous Peoples' rights;
Understanding of how international standards relate toissues such as intellectual property, the environment,
community development and corporate accountability; Practical training in strategic advocacy andpeoples' diplomacy including skills in working withthe media and using the internet for advocacy.

For further information, please contact: Canadian
Human Rights Foundation,1425, boul. Rene-LevesqueO., Bureau 407 Montreal, QC H3G 1T7 Canada; ph(1-514) 954-0382; fax (1-514) 954-0659; e-mail:
chrf@chrf.ca or saurora@chrf.ca; www.chrf.ca

For further information, please contact: Diplomacy
Training Program, Faculty of Law, University of New
South Wales, Sydney, NSW 2052, Australia; ph (612)9385-2277; fax (612) 9385-1778; e-mail:actiondtp@unsw.edu.au; www.dtp.unsw.edu.au

The Asia-Pacific Learning Institute for Human Rights
Education (PDHRE Asia-Pacific) with PDHREInternational Peoples Movement for Human Rights
Learning, Kaohsiung Human Rights Association andthe Taiwan Foundation for Democracy held the "AsiaPacific Training Workshop on Human Rights
Learning." The workshop was meant to develop
human rights educators, equipped to undertake humanrights learning at the community level, in support ofsocial, economic and cultural transformation anddevelopment. The training workshop was held from
28 March - 6 April 2005 in Kaohsiung, Taiwan. There
were participants from non-governmental and volunteer organizations working in grassroots communities
of countries in the Asia-Pacific region.

The New Tactics in Human Rights Project and regional partner, Asian Forum for Human Rights andDevelopment (FORUM-ASIA), will hold the Asia
Regional Training Workshop on 5-11 August 2005 in
Chiang Mai, Thailand. The objectives of the workshop are: to bring together a diverse group ofpractitioners; to exchange valuable tactical and strategic experiences; to learn new ideas and expand
networks of collaboration; to develop skills, including
those of tactical and strategic thinking; and to utilize
tactical training materials to facilitate the sharing oftactics and, ultimately, help practitioners more effectively advance human rights.

For further information please contact: The
Secretariat, PDHRE Asia-Pacific, #15 A. Bautista St.,
University of the Philippines, Diliman, Quezon City
1101, Philippines; ph/fax (632) 926 2199; e-mail:pdhre_ap@vasia.com
Events to be Held
The Diplomacy Training Program, in partnership with
Batchelor Institute of Indigenous Tertiary Education,is organizing a training program for Indigenous com-

For further information, please contact: New Tactics
Asia Regional Training Workshop, Center for Victimsof Torture, 717 East River Road, Minneapolis, MN
55455 USA; fax (1-612) 436-2606; e-mail: newtactic sevent@cvt.org
Asian Forum for Human Rights and Development(FORUM-ASIA), the Center for Social Development
Studies (of Chulalongkorn University) and Asian
Institute for Human Rights (AIHR) will hold the 9th
Asian Training and Study Session on Human Rights
on 9-29 October 2005 in Chulalongkorn University,-14-

Bangkok. The study session aims to facilitate theexamination by the participants of the basic knowledge, skills and values for undertaking human rights
work in their respective countries. In addition the session aims to encourage the participants to reflect upon
human rights situation in their respective countries
and the region, and develop links and solidarity
among themselves.
For further information, please contact: Asian Forumfor Human Rights and Development (FORUM-ASIA),
111 Suthisarnwinichai Road, Samsennok, Huaykwang,
Bangkok 10320 Thailand; ph (662) 276-9846 to 47
ext. 155; fax (662) 693-4939: e-mail: angkana@foru masia.org; www.forumasia.org

non-governmental organization (NGO) capacitybuilding, including: knowledge management,
professional development, accessing resources, outreach and publicity, sustaining growth, fundraising,
networking, communications, results-based management, internal structure and evaluation. Participants
will have a follow-up opportunity to continue building
cooperative alliances among women leaders from theregion. There will be an emphasis on team-building,and on obtaining and distributing women's rights
resources in local languages, and organizers will aim
to meet the resource needs of participating organizations. Participants in the previous training fromAfghanistan, Iran, Pakistan and Uzbekistan are
expected to attend.

The Rights & Democracy, in collaboration with the
Shirkat Gah Women's Resource Centre and Women
Living Under Muslim Laws will hold its second workshop for women's rights leaders in late 2005. This
workshop entitled "Capacity-building for Women's
Civil Society" will bring together highly-qualified
trainers with expertise in specific areas of women's

For further information, please contact: Laury nOates, Project Associate -Women's Rights in
Afghanistan Fund, Rights & Democracy; 1001 de
Maisonneuve Est, Bureau 1100, Montreal, Quebec,
H2J 2W6 Canada; ph (514) 283-6073, ext.251; fax(514) 283-3792; e-mail: loates@dd-rd.ca; www.ddrd.ca

Nepal, continued from page 13.
Recommendations
6. We urge the member States to directly address the following three recommendations:6.1. Special Rapporteur. Adopt a resolution strongly condemning ongoing violations of human rights andhumanitarian law by both Maoist and Government forces, establishing benchmarks for the return to the rule oflaw and respect for human rights, and appointing a Special Rapporteur on the human rights situation in Nepal;
61.2. International Human Rights Monitoring. Urge the Government to accept an independent United
Nations human rights monitoring, investigation, and reporting mandate throughout the territory of Nepal toensure compliance with existing human rights and humanitarian law commitments (including HMG's
Commitment Paper of 26 March 2004). This mandate will be aimed at strengthening the capacity of national
institutions for the administration of justice and for the defence and protection of human rights; and6.3. Human Rights Agreement. Urge and facilitate a human rights agreement between the Government and the
Maoist insurgency as a confidence-building mechanism and foundation for an eventual peace process.
This appeal has been submitted on behalf of 25 leading Human Rights Organizations in Nepal. Due to the cur rent threat to human rights defenders, the names of the organizations have been kept confidential.
Urgent Appeal, March 28, 2005.

-15-

HURIGHTS OSAKA ACTIVITIESHURIGHTS OSAKA is calling for entrants for the HURIGHTS OSAKA Award 2005 for International Human
Rights Education Materials. The contest is open to any individual, group or organization in the Asia-Pacific region.
Three outstanding works will be presented with the Award. Deadline for submission is August 1, 2005. For details,
please refer to our website: www.hurights.or.jp/index_e.html

PRINTED MATTERAIR MAIL

May be opened for inspection by the postal service.

HURIGHTS OSAKA, inspired by the Charter of the United Nations and the Universal Declaration of Human
Rights, formally opened in December 1994. lt has the following goals: 1) to promote human rights in the AsiaPacific region; 2) to convey Asia-Pacific perspectives on human rights to the international community; 3) toensure inclusion of human rights principles in Japanese international cooperative activities; and 4) to raisehuman rights awareness among the people in Japan in meeting its growing internationalization. In order toachieve these goals, HURIGHTS OSAKA has activities such as Information Handling, Research and Study,
Education and Training, Publications, and Consultancy Services.

HURIGHTS OSAKA

HURIGHTS OSAKA(Asia-Pacific Human Rights Information Center)
1-2-1-1500, Benten, Minato-ku, Osaka 552-0007 Japan
Phone: (816) 6577-3578 Fax: (816) 6577-3583
E-mail: webmail@hurights.or.jp
Web site: http://www.hurights.or.jp