Fighting for Human Rights in the Courts
By Brian Covert
KYOTO — When a group of attorneys in Osaka first approached Dr. Sylvia Brown Hamano a few years ago about researching international law and testifying in human rights cases, she laughed right in their faces.
Though she had put in years of social activism going back to her student days in the turbulent 1960s, she scoffed at the idea of departing from her specialty of United States constitutional law.
But it looks as if the Osaka Bengo-dan lawyers’ group may be having the last laugh for now, as Hamano has since become one of the most respected foreign legal figures in Japan on the subject of international human rights treaties — and the thorny issues of having them recognized under Japanese domestic law.
“I don’t think of myself as a leader in any way,” says Hamano, an eight-year resident of Japan. “I think of myself as a resource.”
As it turns out, a most valuable resource in cases where the defendants — whether they be ethnic Korean residents of Japan fighting discrimination or women fighting sexual abuse — are going beyond the confines of Japanese domestic law and seeking justice under a variety of international agreements, such as the United Nations’ International Covenant on Civil and Political Rights (ICCPR), that Japan has already ratified.
The 47-year-old Hamano, an associate professor of comparative law and women’s studies at the Center for International Education at Kansai Gaidai University in Hirakata, Osaka Prefecture, has been admitted to practice as high up as the federal appellate court level in her native United States.
In Japan, however, her role as an “expert witness” is a different, but no less important, one.
“My job is to come in not as an advocate but as a kind of honest broker and…to help them understand particular terms and doctrines in the treaties.”
The problem in the past, she says, is that judges in Japan have often “grossly misinterpreted” and thus flatly ruled out the relevancy of such treaties in three key areas of Japanese domestic law: criminal procedures, enforcement of equal rights for women and governmental discretion over non-Japanese residents.
One such resident is Rev. John McIntosh, the Canadian missionary who recently lost his seven-year lawsuit against the Ministry of Justice over the government’s fingerprinting system. Over the course of the trial in Osaka District Court, Hamano was called in to testify five times on the basic framework of the ICCPR and the court’s obligation to recognize the validity of McIntosh’s human rights claims under that convention.
At the same time, cases like that can have their drawbacks, such as overly depending on a qualified foreign attorney like Hamano to do something that is already guaranteed under international human rights law.
“I found it unfortunate that (McIntosh’s) lawyers needed to find somebody to do that,” she says. “Under the ICCPR, the government is obliged to teach its judges the contents of the treaty and what they’re supposed to do to enforce it. This really is an executive obligation — the (U.N.) Human Rights Committee has said that, quite bluntly.” Hamano does not buy the oft-debated theory that Japanese domestic law is somehow incompatible with international human rights agreements, especially those Japan has already agreed to over the last several decades.
“I don’t think that’s correct,” she says. “I think the standards that appear in the international human rights treaties are intended to be standards for the entire world. That’s the whole theory of what came up in the late 1940s with the funding of the United Nations and the so-called International Bill of Rights.”
Lest one get the impression that Hamano is out to unilaterally impose foreign standards of justice in Japan, she quashes that notion quickly: “I try very hard not to make comparisons between countries. I definitely do not argue that the United States system is good and the Japanese system is bad or ‘Why don’t you be more American?’”
At the same time, she adds, “Japan, like all countries, has to come to terms with its history. This is really what I say to students in my law class and to my Japanese students. I’m not a history professor, but I know as a lawyer you can’t begin to change things unless you know what happened and where people are coming from. People have to understand the past.”
In the past she may have doubted her ability, but her desire now is to devote more time to legal writing and continue pressing for implementation of the human rights treaties signed by Japan.
Meanwhile, Hamano views it as only a matter of time before the highest court in Japan will have to make a clear-cut decision once and for all on an ICCPR-related human rights case; the catalyst may well be an ongoing police brutality case involving a Korean national that Hamano has testified for in the Osaka High Court.
“I’d like in the next couple of years for the Supreme Court to squarely face these legal arguments — and come up with a detailed response,” she says. “What we really do need is guidance.”