Supreme Court’s dereliction of duty

The Supreme Court on Monday turned down a request from citizens for disclosure of diplomatic documents that show the existence of secret accords between Tokyo and Washington over the 1972 reversion of Okinawa, by accepting the government’s contention that because the documents do no exist, it cannot disclose them. The ruling came despite the fact that documents showing the existence of the secret accords had already been declassified by the U.S. National Archives.

The court ruled that if the government insists that documents sought by citizens do not exist, citizens have to prove their existence if they want to have the government disclose them. This is almost an impossible task for ordinary citizens to carry out. By imposing such a duty on citizens, the top court has evaded its duty to protect the people’s right to know, the foundation of democracy. The ruling will only encourage the government to increase the number of documents it keeps secret, preventing Japan from becoming a more open society.

Together with 25 other citizens, Takichi Nishiyama — an 82-year-old former Mainichi Shimbun reporter who in a 1971 newspaper article hinted at the existence of a secret bilateral pact over Okinawa’s reversion — filed a lawsuit in March 2009 to force the release of three documents after the government refused to disclose them. The plaintiffs sought documents related to $4 million paid by Japan to restore land used for military purposes to its original state, $16 million paid by Japan to move a Voice of America relay station abroad, and Japan’s financial obligations above the publicly acknowledged figure of $320 million.

On the strength of the declassified related U.S. documents and testimony by Bunroku Yoshino, former director of the Foreign Ministry’s American Bureau, who admitted the existence of the secret pacts, the Tokyo District Court in April 2010 determined that Japan and the United States had such pacts and ordered the state to disclose related diplomatic documents. It also awarded ¥100,000 in damages to each plaintiff.

The Tokyo High Court in September 2011 reversed the district court ruling. It pointed out the possibility that the government, fearing the surfacing of the secret pacts, destroyed the documents before the freedom of information law went into force in 2001. It also said the government investigation after the district court ruling failed to locate the documents. Thus it ruled that as long as the documents do not exist, the government’s decision not to disclose them is reasonable.

Both the district and high court rulings said that if plaintiffs in a freedom of information lawsuit prove that documents had been written at one point in the past, and if the government cannot prove that the documents were destroyed, it must be assumed that the documents exist. But the Supreme Court’s No. 2 Petit Bench did not mention the government’s responsibility for proving the existence or nonexistence of documents.

Instead, it said in a 4-0 decision that if the government refuses to disclose documents on the grounds that they do not exist, citizens are obliged to prove that the documents exist. Given the highly limited investigative capabilities of citizens, what the ruling means is that the government can hide documents from citizens simply by saying that they do not exist.

In this ruling the Supreme Court has abandoned its responsibility to check the excesses of government administration. Given this and the fact that the state secrets law goes into effect by the end of the year, the Diet’s responsibility to protect people’s right to know is all the more critical. At the very least, it should drastically limit the scope of secrets under the law, establish a strong body to check the process of designating secrets, and improve the freedom of information law to prevent the government’s arbitrary refusal to disclose information.