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Lawyers: they’re not all out for themselves

by Jeff Kingston

HUMAN RIGHTS IN JAPAN, South Korea and Taiwan, by Ian Neary. London, Routledge, 2002, 297 pp., $95 (cloth)

It’s not easy being a lawyer these days — putting up with nasty jokes, scant respect and widespread suspicions that the public interest is way down on the list of priorities. Ian Neary reminds us, however, that some public-spirited lawyers have been at the forefront of the crusade for human rights and civil liberties in Asia. The fruits of these lawyers’ efforts are evident in the improving situations in Japan, South Korea and Taiwan, the subjects of this fine book.

Certainly there is a degree of self-interest in generating fee-producing opportunities by promoting the rule of law, but Neary asserts that in Japan and to some extent in South Korea and Taiwan “the legal profession has played a leading role in many dimensions of the human rights movement acting as advocates for a view of law as a device to regulate state power as opposed to being an instrument at the state’s disposal.”

Neary outlines the post-1945 legal developments in each of the countries that have promoted and protected human rights; explores the role of international conventions, standards and pressure; and then presents some fascinating case studies. He rejects the assertion by some Asian politicians and intellectuals that human rights are not compatible with “Asian values,” pointing out that such a perspective ignores the fact that here are rich and diverse traditions in Asia that are consistent with and protective of human rights. In his view, the internationalization of human rights is not a reflection of cultural imperialism nor a strategy for thwarting rapid economic development as some proponents of the “Asian values” thesis have argued. Rather, broad support for the agenda of human rights around the world and the desire for liberal democracy demonstrates how such values transcend culture.

The strength of Neary’s narrative lies in his case studies on minorities, patients and children that illustrate the resonance and relevance of human rights values in the everyday lives of people in East Asia. The nuts and bolts of how the debate on human rights has developed in the post-World War II era is fascinating and clearly illustrates Neary’s point that public aspirations and demands have been a powerful force in promoting human rights.

Movements to promote the rights of burakumin and ethnic Koreans in Japan are briefly summarized to illustrate how people have responded to discrimination and asserted their human rights. The Buraku Liberation League, or BLL,established in 1955, is described as the major nongovernmental organization engaged in promoting human rights in Japan. Neary writes, “As many as 3 million Japanese citizens face real or potential discrimination in their daily lives because they are the descendants of groups which were legally excluded from the mainstream society before 1870.” Their exclusion was based on “ritual pollution” for engaging in tasks such as slaughtering animals. Despite the 1870 abolition of the class system that marginalized burakumin, discrimination in varying forms has persisted and ensures that they remain poor and marginalized. Yet the burakumin have not been passive victims. Their resistance to discrimination throughout the 20th century demonstrates the depth of their commitment to human rights, and BLL has lobbied forcefully for legal reforms and government programs to deter discrimination and alleviate the accumulated consequences thereof, with mixed success.

The community of nearly 900,000 ethnic Koreans resident in Japan have also struggled for dignity and rights. Represented by the organizations Chongryun and Mindan, the community has been divided between those with ties to North Korea and South Korea, respectively. Neary argues that since the 1980s there have been significant improvements within the Korean communities and mainstream Japan that have accommodated a freer assertion of rights that “had little to do with the two groups that purported to speak for Korean residents in Japan.”

According to Neary, there has been significant improvement in the Japanese approach to human rights in the 1990s. The government has ratified international human rights covenants and played a more constructive role in human rights promotion under the auspices of the United Nations. NGOs have also been more active in drawing on international standards to lobby for reforms in Japan. The change in government attitudes toward the U.N. is tied to the embarrassment caused by Japan’s ATM diplomacy during the Gulf War, greater recognition of the importance of the U.N. and a consequent desire to lobby for a permanent seat on the Security Council. In addition, there have been efforts to drum up domestic political support for a more prominent international role by supporting the international human rights regime.

In lauding these positive trends, Neary is quick to remind readers that some things remain unchanged. He writes, “Despite all the concessions made by government to ensure Japan is included in the international human rights regime, one still detects an attitude within the bureaucracy which is unhappy with cooperation with either foreigners or people outside the bureaucracy.” NGOs have been routinely excluded from government deliberations and there is no mechanism for systematic public participation. Nonetheless, even if the government remains reluctant to embrace a robust civil society that is intrinsic to promoting and protecting human rights, its enhanced participation in the international regime has had a cascade effect in Japan as local governments and NGOs adopt policies and push initiatives that keep human rights issues high on the political agenda. The combination of international commitments and the spread of rights awareness groups involving growing numbers of Japanese citizens is optimistic of a more robust civil society is developing in these early years of the 21st century.

Patients in Japan cope with a medical system that militates against their rights as consumers and human beings: Doctors are protected from scrutiny, their privileges are guarded and their autonomy preserved. Patients have had no systematic right to access their medical records and there is no principle of informed consent in the treatment process. Patients are left at the mercy of doctors’ discretion, without recourse or input concerning their care.

The experience of mental health patients in Japan is described as being particularly abysmal, and the tendency to put them away for extended periods of time is more pronounced here than in other countries. Neary criticizes activists for not using moral or ethical arguments grounded in law and international norms to assert the rights of the mentally ill. It seems that it is more common to focus on cutting costs, or other utilitarian benefits to the community rather than on the dignity and rights of patients.

However, such caveats notwithstanding, Neary argues that the 1990s have been a time of tremendous improvements that augur well for the future:

“While there is no doubt that there is extensive conservatism in the medical establishment and individual hospitals that patients’ rights activists will have to overcome, compared to the situation in the early 1990s rights ideas had become much more firmly embedded in medical practice by 2000. From concession on the use of the contraceptive pill through to the acceptance that access to medical records will soon be put into law, the overall trend is for reforms to be introduced that give increased respect for patients’ decisions.”

If Neary is right about the positive role of lawyers in nurturing a more vibrant civil society, government plans to double the number of lawyers in a little over a decade may be a welcome development. One wonders, however, if there is anywhere else in the world where people think that doubling the number of lawyers is a solution to what ails society.