House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Tenth Report

5 Human rights in Japan and South Korea

376. In its new strategic framework, announced in January 2008, the FCO reaffirmed that the promotion of human rights was one of its aims. Human rights promotion forms part of the larger FCO policy goal—now one of only four—of "preventing and resolving conflict".[666]

377. In 2008, both Japan and South Korea were among the first countries to have their human rights performances reviewed under the new Universal Periodic Review process, in the framework of the UN Human Rights Council established in 2006.[667]

Death penalty in Japan and South Korea

378. Japan and South Korea both retain the death penalty. South Korea has not carried out an execution since 1997. As a result, human rights organisations classify it as a de facto abolitionist state.[668] Japan continues to make regular use of the death penalty.

JAPAN

379. In Japan, executions are carried out by hanging. They are typically held in secret, usually during periods when parliament (the Diet) is in recess or on national holidays.[669] Amnesty International states that "prisoners are only informed hours before their executions, and their families receive no notice of their imminent execution. This practice means that prisoners live with the constant fear of execution."[670] During our visit to Japan we were told that the real, but unacknowledged, reason for executions being carried out with very little notice is to minimise the possibility of suicides.

380. The UN Committee against Torture, in May 2007, stated that "unnecessary secrecy and arbitrariness surrounding the time of the execution" and "the psychological strain imposed upon inmates and families by the constant uncertainty of the date of the execution" could also be considered torture, requesting that Japan should immediately introduce a moratorium on executions.[671]

381. In September 2005, Justice Minister Seiken Sugiura announced a moratorium on executions. However, his successor, Jinen Nagase, reversed this policy. In December 2006, four men were executed (including a man aged 77 and another aged 75). In 2007, nine executions were carried out, including one of a man reportedly suffering from mental illness. In 2008, to the time of agreeing this Report, there have been 15 executions, of which five took place after a new Justice Minister, Okiharu Yasuoka, took up his post in August.[672] Whether the replacement of Mr Fukuda by Mr Aso as Prime Minister in September 2008 will lead to any change in Japanese policy towards the death penalty is not as yet known.

382. It is believed that, as of September 2008, around 100 prisoners are on death row in Japan.[673] Due to the slowness of the legal process, some have been there for decades; one man, Okunishi Masaru, was sentenced to death in 1961 and is now aged 82.[674]

383. The FCO told us that the UK, through the EU, "regularly takes this up with the Japanese Government, although there is still overwhelming support for capital punishment in Japan".[675] A 2005 Japanese Government poll found that over 80% of the public is in favour of executions with only 6% calling for capital punishment to be abolished. However, the FCO reports that abolitionist members of parliament are planning to submit an abolition bill to the Diet.[676]

384. During our visit to Japan, we were informed by Japanese government sources that the reason for the increase in use of the death penalty is that formerly the penalty could only be applied in cases where there were multiple victims, whereas now it can be applied where there is a single victim if the nature of the crime is particularly heinous.

385. During our visit we also met representatives of the Japanese Federation of Bar Associations, which has a human rights campaigning role. They argued that the Japanese public are ignorant about the circumstances surrounding the death penalty—how those sentenced to death are not entitled to defence lawyers on legal aid after their initial conviction; and how executions are carried out with minimal notice to the person sentenced and no notice to his or her family. They considered that if these matters were more widely known, public attitudes might begin to change.

386. Giving evidence to us in early July, Lord Malloch-Brown was asked why the UK continues to take up the issue of the death penalty with Japan, despite the fact that far worse abuses of human rights take place elsewhere in the region. Lord Malloch-Brown replied that:

It has been a long-standing priority of British foreign policy to lecture everybody on the death penalty. Japan is in no way singled out. Even the Americans get their ears bent by us on that one. For countries where it is much more horrendous, such as China, the death penalty is always part of our dialogue, along with all the other issues. I think that the feeling is that in Japan, precisely because it is a democracy, we are pushing on more of an open door, and it is worth keeping going.[677]

387. We conclude that, although there is undoubtedly a high level of public support for the death penalty in Japan, the moratorium on its use in 2005-06, under Justice Minister Sugiura, demonstrates that the Japanese Government is not necessarily immovable on this subject. We recommend that the Government should continue to convey its views on the death penalty to Japan, both directly and through EU channels; and that it should encourage the Japanese Government, if it remains committed to the death penalty, to reform the system so as to eliminate the unnecessary secrecy and arbitrary delay to which attention has been drawn by the UN Committee against Torture.

SOUTH KOREA

388. In the FCO's words, "the death penalty is a divisive and controversial issue in South Korea".[678] The country abstained in the vote in the UN General Assembly in December 2007 on the successful resolution—co-sponsored by the EU—which called for a moratorium on the death penalty, with a view to abolition.

389. Against the background of South Korea's non-use of the death penalty in recent years, there have been a number of legislative initiatives to remove the sentence from the statute book altogether. Such initiatives have always been stalled in Parliament. The most recent bill expired with the end of the previous Parliament in May 2008.

390. Death sentences continue to be passed, for example in June 2008 on a man convicted of kidnapping and murdering a woman and two young girls. The FCO told us that there were 64 people on death row in South Korea as of October 2007,[679] although the figure had reportedly fallen to 58 as of November 2008.[680]

391. The new President, Lee Myung-bak, has said publicly that he favours the death penalty. Norma Kang Muico of Amnesty International described this to us as "worrying".[681] In Spring 2008, Prime Minister Han Seung-soo said that legislation would be introduced in the Autumn introducing stiffer penalties, possibly including the death penalty, for those convicted of some child murders.[682] A poll of incoming members of the new National Assembly found 46% in favour of retaining the death penalty, and 40% abolitionist.[683] A public opinion poll of 3,000 South Koreans conducted for the Prime Minister's office found 70% in favour of retention.[684] Ms Muico said that a number of serious recent crimes had "tested" the judicial system and provoked "a lot of discussion in the media on the death penalty". However, she felt that "even Lee Myung-bak would hesitate to break [South Korea's] 10-year good performance" by reverting to use of the death penalty.[685]

392. The Report of the Working Group on the Universal Periodic Review of South Korea's human rights performance, in May 2008, included a recommendation that the country should "progress towards the abolition of the death penalty" and pass the relevant legislation in the new National Assembly.[686]

393. Ms Muico told us that formal abolition of the death penalty in South Korea "could […] have a positive knock-on effect". She referred to abolitionists elsewhere in East Asia—including Japan—who were looking to South Korea to "be seen as a role model for other countries in the region".[687]

394. The FCO told us that the Government would "continue to take every opportunity to encourage the South Korean government to abolish the death penalty".[688] In the Report of the Working Group on the Universal Periodic Review of South Korea, the UK was one of the states to call on the new National Assembly to pass abolitionist legislation; and in its Human Rights Annual Report 2007, the FCO noted that the British Ambassador in Seoul had made a keynote speech on the issue on the occasion of the World Day Against the Death Penalty in October 2007.[689] The Ambassador repeated this in October 2008.[690]

395. We conclude that South Korea's 10-year record as a non-user of the death penalty is to be welcomed. While we recognise that the issue is subject to considerable domestic debate in South Korea, we recommend that the British Government should continue to encourage the new Administration and National Assembly in Seoul to move to formal abolition, as one of the priorities in the Government's human rights work with South Korea. We further recommend that in its response to this Report the Government should update us on prospects for passage of abolitionist legislation in the new National Assembly.

"Substitute prison" system in Japan

396. Under Japan's daiyo kangoku system (the phrase literally means "substitute prison"), suspects can be held without charge in police cells for up to 23 days. Amnesty International states that this system "facilitates the extraction of 'confessions' under duress". Its adds that:

suspects are solely under the control of the policy; there are no rules or regulations regarding the duration of interrogation; lawyers' access to clients during questioning is restricted; and there is no electronic recording of interviews by police.[691]

Amnesty further claims that it has evidence of 'confessions' being obtained through measures such as "beatings, intimidation, sleep deprivation, questioning from early morning till late at night, and making the suspect stand or sit in a fixed position for long periods".[692] Ms Norma Kang Muico of Amnesty International told us that suspects can be interrogated for 16 hours continuously at night time.[693]

397. In 2006 there were amendments to legislation concerning daiyo kangoku, providing for detainees to be informed of some of their rights and for lawyers to be appointed, but only after charges have been brought.

398. The UN Committee against Torture stated in May 2007 that it was:

deeply concerned at the prevalent and systematic use of the 'daiyo kangoku' substitute prison system for the prolonged detention of arrested persons even after they appear before a court, and up to the point of indictment. This, coupled with insufficient procedural guarantees for the detention and interrogation of detainees, increases the possibilities of abuse of their rights, and may lead to a de facto failure to respect the principles of presumption of innocence, right to silence and right of defence.[694]

399. In May 2008 the UN Human Rights Council's Universal Periodic Review working group on Japan issued a report. The working group noted that several countries, including the UK, had urged that the daiyo kangoku system should be changed to bring it into line with international norms.[695] Lord Malloch-Brown told us that the Government had "significant disquiet" about the system in its present form.[696]

400. During our visit to Japan, we were informed by government sources that the daiyo kangoku process is subject to judicial scrutiny. The initial arrest warrant has to be issued by a judge, and a court has to renew the detention on the third and 13th days after arrest. If needed, the state will pay for a state-appointed counsel to represent the accused. We were told that safeguards for the suspect along the lines of those in the UK's PACE Acts would not be appropriate in a Japanese context, because in Japan there is much less scope for the police to collect evidence by means other than interrogation. Wiretapping is not allowed in routine cases (only a handful of wiretaps are permitted each year); eavesdropping is not allowed, nor decoy investigations, nor undercover police agents infiltrating an organisation, nor plea-bargaining. We were told that the only means available for the authorities to get at the truth is to persuade the person accused of a crime to disclose the facts. Full video-recording of interrogations would be undesirable, it was argued, as it would make it more difficult to persuade someone to confess. For instance, it would be difficult to get a suspect involved in organised crime to name his superiors if the proceedings were being videoed throughout.

401. The counter-case was put to us by representatives of the Japanese Federation of Bar Associations. They argued that the degree of judicial scrutiny in the daiyo kangoku process did not in practice prevent suspects being held with little contact with the outside world, subject to constant interrogation aimed at cracking their resistance and making them confess. In such circumstances, they claimed, miscarriages of justice are inevitable.

402. We conclude that there is compelling evidence that the 'substitute prison' or daiyo kangoku system in Japan involves significant breaches of the rights of suspects, and is likely to lead to miscarriages of justice. We further conclude that the reforms to the system introduced in 2006 are to be welcomed, but that there remains cause for concern. We recommend that the Government should continue to press Japan to modify the daiyo kangoku system to ensure that detention procedures are consistent with its obligations under human rights law, and in particular to ensure that interrogations are subject to some degree of external monitoring in order to prevent abuses.

Other human rights issues in South Korea

403. Compared to the situation which obtained prior to the advent of democracy in the late 1980s, South Korea's human rights record is hugely improved. South Korea has acceded to six of the core international human rights instruments and was elected as a founder member of the new UN Human Rights Council. An official National Human Rights Commission was established in 2001 as an independent body, and in 2007 South Korea adopted its first-ever National Action Plan for the Promotion and Protection of Human Rights, to run for four years.

404. Against this background, in its memorandum to our inquiry the FCO did not refer to any further human rights issues beyond the death penalty. However, Norma Kang Muico of Amnesty International pointed to a number of other continuing concerns. She highlighted in particular the issue of migrant workers' rights, commenting that "the situation [was] particularly worrying", owing to recent "crackdowns" on migrant workers' union leaders. According to Ms Muico, migrant union leaders have recently been subject to procedurally incorrect arrests, mistreatment and summary deportation.[697] She added that the British Embassy in Seoul was aware of this issue, and appeared open to making representations to the South Korean Government.[698] The Universal Periodic Review (UPR) Working Group Report on South Korea included several recommendations on the issue of workers' rights, some of which Seoul has indicated that it will accept.[699]

405. Other issues in South Korea which have been raised by human rights organisations include:

The limited numbers of people granted asylum or humanitarian leave to remain in South Korea (other than North Koreans, who are automatically entitled to citizenship).[700]
The continuing imprisonment of hundreds of conscientious objectors to military service, despite the fact that the National Human Rights Commission has in principle recognised the right to conscientious objection.[701] The UPR Working Group Report called on Seoul to decriminalise conscientious objection,[702] and it included a recommendation from the UK that "active steps be taken to introduce alternatives to military service for conscientious objectors".[703] In its response to the Report, South Korea said that programmes of alternative service were being studied.[704]
The 1948 National Security Law, which remains on the statute books and penalises "praising or supporting" North Korea. In its 2008 Annual Report, Amnesty International said that in 2007 there were at least eight people detained on the basis of charges under the this law which it described as "vague" (an increase from one person in 2006).[705] As well as a call from North Korea to abolish the National Security Law, the UPR Working Group Report included a recommendation from the UK that the legislation "be brought in line with international standards regarding clarity of criminal law",[706] and from the US that the Law be amended "to prevent abusive interpretation".[707] In its response to the report, South Korea "reaffirmed that the National Security Law should not be misused or interpreted arbitrarily".[708]

406. There was violence between police and demonstrators at some of the mass rallies against the Lee Administration in early summer 2008. After a field visit, Amnesty International reported that there were some cases in which the police had used excessive force and made arbitrary arrests, although Amnesty also said that "generally, both the protesters and the police showed remarkable organisation and constraint" and that the "protests, and the response to them, generally show the strength of South Korea's civil society as well as its legal institutions".[709]

407. The South Korean Government has raised the prospect of new legislation against what President Lee has called "infodemics, a phenomenon in which inaccurate, false information is disseminated".[710] During our visit to Seoul, we heard that food safety "scare stories" spread especially via the internet were widely considered to have been a major factor behind the mass protests against renewed US beef imports (South Korea has some of the highest usage in the world of the internet and other new forms of electronic communication). Some internet journalists and bloggers have expressed concerns that the Government's planned measures might infringe on free speech.[711]

408. We conclude that South Korea has recorded major improvement in its human rights observance since the advent of democracy two decades ago. We welcome this. We further conclude that despite these significant improvements, several human rights concerns remain, such as the policing of demonstrations, the scope of free speech on the internet and the rights of migrant workers. However, we recognise that these issues also pose challenges to many other open societies, including the UK. We recommend that, in a spirit of partnership, the Government should continue to encourage South Korea to address human rights concerns and to ensure that human rights are safeguarded in new legislation and its implementation, prioritising the rights of migrant workers, the development of alternatives to military service, and reform of the National Security Law. We further recommend that the Government should update us on the steps which it is taking in these areas in its response to this Report.

666 HC Deb, 23 January 2008, col 52WS; FCO, "Better World, Better Britain", mission statement, February 2008; FCO, FCO Departmental Report 1 April 2007-31 March 2008, Cm 7398, May 2008, p 16; FCO, Human Rights Annual Report 2007, Cm 7340, March 2008, pp 7-9 Back

667 We considered the new Human Rights Council most recently in our Human Rights Annual Report 2007, Ninth Report of Session 2007-08, HC 533, paras 13-19 Back

668 See the websites of Amnesty International, www.amnesty.org, and the anti-death penalty NGO Hands Off Cain, www.handsoffcain.info Back

669 Q 66 Back

670 Amnesty International Submission to the UN Universal Periodic Review: Japan, 22 January 2008 Back

671 Conclusions and Recommendations of the Committee against Torture: Japan, May 2007, para 19 Back

672 "Japan executes three on death row", BBC News online, 11 September 2008 Back

673 Ibid. Back

674 Amnesty International Submission to the UN Universal Periodic Review: Japan, 22 January 2008 Back

675 FCO website, country profile: Japan (reviewed July 2008), at www.fco.gov.uk Back

676 Ev 63 Back

677 Q 145 Back