With less than three months to go until the contentious secrecy law takes effect in December, Japan faces the daunting task of finding the right balance between national security and the public’s right to know.
The law will toughen the penalties for leaking state secrets, addressing criticism that Japan is too lenient on people who divulge sensitive information, including journalists. This will ease information exchanges with foreign countries.
Public opposition to the legislation remains strong amid criticism that it is vaguely worded and will thus reduce public access to information kept by the government.
Experts warn that the government faces the risk of damaging public trust by resisting transparency and “over-classifying” information to keep more secrets. That is especially true as postwar Japan finds itself at a major crossroads on whether it can proceed as a pacifist state, they say.
Saying he wants Japan to play a bigger role in international security and foster stronger bonds with other countries, Prime Minister Shinzo Abe and his administration made a series of landmark decisions to loosen the legal constraints on collective self-defense and to ease a decades-old arms embargo. Critics see the moves as an attempt to re-militarize Japan.
“The most important thing is to apply the law appropriately . . . if we are to win public confidence,” Abe said earlier this month.
To ease public anxiety, the government is preparing guidelines on how to designate and safeguard sensitive information as “specially designated secrets.” The Cabinet is to approve the guidelines in October.
An analysis of more than 23,000 public comments the government received during a monthlong review period through late August highlights the concerns ignited by the alarming change.
One of the biggest criticisms directed at the legislation is the lack of an independent oversight mechanism that can effectively check the legitimacy of hiding certain types of information. New entities created by law tend to stay under government control, leading some to describe them as self-auditing bodies with no oversight.
According to the analysis, some people want a monitoring group set up that includes outside experts. They said such oversight groups should be independent and that Japan needs something similar to the United States Information Security Oversight Office, a third-party organization established as a component of the National Archives and Records Administration.
The secrecy law will enable the heads of ministries and agencies to classify sensitive information on defense, diplomacy, counterterrorism and counterespionage. The five-year designation period for the secrets can be extended by up to 60 years if approved by the Cabinet.
Civil servants who leak state secrets will face up to 10 years in prison. People who instigate leaks, including journalists, will face a maximum prison term of five years.
The draft guidelines state that the government “will designate the minimum amount of information as secrets for the shortest period of time,” and that the public’s right to know should be “greatly respected.”
For now, the government is reluctant to set up an oversight mechanism that is truly independent, even though one of the officials in charge of the guidelines says recruitment from outside the government hasn’t been ruled out.
Hosei University professor Hideo Nagano, a member of the information protection advisory panel, said one reason behind the government’s rather reluctant stance is the sensitivity of the information up for classification.
“There are limits to an oversight mechanism composed only of outsiders due to the risk of sensitive information being exposed,” he said.
The ruling coalition of New Komeito and the Liberal Democratic Party forced the secrecy bill through the Diet last December because Abe saw it as a prerequisite for running the new National Security Council, which was launched around the same time to facilitate information-sharing and speed up decision-making.
Experts on security and defense policy argue that the law will prove useful as Japan tries to improve the Self-Defense Forces’ ability to work with the U.S. military in reacting to China and dealing with unpredictable North Korea.
Tokyo and Washington are expected to compile new defense cooperation guidelines by the end of the year.
“The chances are that those in uniform and in leadership positions will gain more authority as Japan moves toward the use of collective self-defense and reform of the Defense Ministry. So it’s not just about the secrecy law,” said Doshisha University professor Katsuhiro Musashi.
“In that scenario, third parties are the ones who can truly say ‘Wait a minute, it’s better to make this information public for a sound democratic society and for national security.’ Unfortunately, the government is not buying that argument,” Musashi said.
Specially designated secrets will include information about the development and capabilities of aircraft, ships and weapons, as well as SDF operations and missions carried out with the U.S. military.
Japan’s debate on the secrecy law has also revealed international differences in the way Japan approaches matters of information protection and disclosure.
The Diet will have eight-member panels in both chambers that will allow the selected lawmakers to “advise” the disclosure of specific state secrets if necessary. But even recommendations from the panels could be overruled, critics say.
“In the United States, there is recognition on the part of the government that information ultimately belongs to the people, whereas there is less of that in Japan,” Musashi said. “That’s a gap that needs to be narrowed.”