Watch what you do and say: Broader ramifications of the new conspiracy law cause concern

“Big Brother in the form of an increasingly powerful government and in an increasingly powerful private sector will pile the records high with reasons why privacy should give way to national security, to law and order … and the like.” — U.S. Supreme Court Justice William Douglas, 1970

The recent passage of a bill criminalizing the planning and preparation of at least 277 different crimes was so contentious in both Japan and abroad that there were questions about what to call it.

Politicians, including Prime Minister Shinzo Abe and his government, jurists, bureaucrats and some media often referred to it as “anti-terrorism” legislation, and agreed with the premise put forth by Abe that it was needed to strengthen efforts to prevent terrorist attacks, especially as the government prepares for the 2020 Tokyo Olympics.

Opponents and critics who weren’t opposed to the idea but objected to the content, including Abe’s political opposition, thousands of jurists, legal scholars, activists, at least one representative of the United Nations and large swathes of the public warned the new legislation will erode privacy rights, lead to increased surveillance and stifle legitimate political dissent. They often called it the “conspiracy bill.”

While the new legislation covers crimes such as bomb-making and hijacking or other violent activities traditionally associated with terrorism abroad and within Japan — most notably, the 1995 sarin gas attacks on the Tokyo subway system by Aum Shinrikyo — much attention has been drawn to the fact that one could possibly be charged with conspiracy to violate copyright laws or laws pertaining to forestry products.

However, beyond specific concerns about specific laws lies the larger questions of what the overall effect on public discourse as a whole, as well as to whom the law is applied and under what circumstances.

In a highly publicized letter sent to Abe last month, Joseph Cannataci, United Nations Special Rapporteur on the right to privacy, warned that the legislation was quite problematic.

“The right to privacy appears to be particularly affected by the possibility of broad application of this law,” he wrote. “Our initial assessment of the current draft would suggest the new law or accompanying measures would not introduce any new additional specific articles or provisions that would establish appropriate safeguards for privacy in an environment where increased surveillance would be required to establish the existence of an offense under the new proposed anti-terror law.”

Cannataci listed other problems as well, including the apparent lack of plans to establish a statutory independent body of the kind seen elsewhere to pre-authorize the carrying out of surveillance for national security purposes.

“This suggests that the establishment of such vital checks remains at the discretion of the specific agencies carrying out the operations,” he wrote.

For its part, the government insists the legislation is narrow in scope and targets organized crime syndicates. But even assuming that it does, what constitutes the legal definition of an “organized crime syndicate?” Or even a “terrorist”? The new law is vague on both points.

“In the bill, the phrase ‘terrorist organizations’ is mentioned,” said Osaka Bar Association Chairman Masatoshi Ohara in a statement in late May. “However, with regards to the definition of ‘terrorism’ the government has said it is not necessary to clearly define the meaning by citing specific examples. So the meaning of a ‘terrorist organization’ itself remains unclear.”

Mind your speech

Behind the concern and legal debates over the meaning and interpretation of terms such as “terrorist,” “planning” and “preparation” under the new law, there is the question of what it means in practice.

Osaka-based attorney Yasuhisa Nageshima warns that the law is most dangerous because it changes the rules of how, and when, ordinary citizens could find themselves investigated and possibly prosecuted for conspiring to commit crimes.

“To date, if you killed someone with a pistol or attempted to kill them that is, of course, a crime. Or, if you stole something or attempted to steal something, that is obviously a crime,” Nageshima says. “But the conspiracy bill makes it a crime for more than two people to discuss killing someone, talk about stealing or even to commit a crime such as defacing a toilet in a public park with graffiti.”

Like Cannataci, Takeyoshi Ota, an Osaka-based attorney who is involved with a group of lawyers and activists opposed to the law, worries that nonprofit organizations and nongovernment organizations involved in protesting government policies in general, but particularly the U.S. base presence in Japan and nuclear power, could find that authorities use the provisions of the conspiracy law to expand surveillance over protesters or those who support them. He also warned that people might find themselves questioned if they say the wrong thing to the wrong person.

“Those involved in groups that protest government policies could find themselves being recorded at meetings, and later on their words — just their words and not their actions — being investigated for possible violation of the conspiracy law,” Ota says.

Ultimately, the courts will determine whether the assurances of those who supported to the legislation or the concerns of those who oppose it were right on purely legal grounds, or whether the feared surveillance state will come to pass in practice. However, perhaps the real danger to Japanese society, and one Ota, Nageshima, Cannataci and those who opposed the law are concerned about is not legal but social.

“With the conspiracy law, there is a danger of a spreading mood that discourages people from participating in student organizations, rallies, study groups, public demonstrations and groups that are generally opposed to government policies,” Ota said.

Nageshima agrees.

“What kind of society is it where various forms of communication are monitored by the government, and where freely criticizing the government or big business becomes a crime? Is that kind of a society really OK?” he asks.

Student activism in particular, such as the demonstrations by Students Emergency Action for Liberal Democracy (SEALDs) in 2015 against Abe’s efforts to strengthen the country’s security measures to allow more overseas participation by Japanese troops, could be affected by the new law, says Sanae Fujita of the Human Rights Centre, University of Essex.

“Even now, young people are not engaged with political issues,” Fujita says. “In 2015, when the SEALDs movement became famous, young people were warned that such activity would have a negative impact on the students in their job hunting. Many young people were worried about that. So, it’s not difficult to imagine how ordinary young people will keep their distance from something that carries a risk.”

Supporters insist that the law will be applied fairly in practice and that enough safeguards exist in Japanese law to prevent abuses of power. A chilling effect on public discourse is not something they appear to be overly concerned about. For historically minded opponents, however, one of the rallying cries since the bill was introduced to the Diet in March has been “Not another Peace Preservation Law!”

What they are referring to is the April 1925 Peace Preservation Law that has long been cited by historians as a key development that led to the country’s militarization in the 1930s. The law stated that anyone who organized a group for changing the national polity or denying the private property system, or knowingly participated in said group, would be jailed for up to 10 years.

Even if the offense was not carried out, just conspiring to do so was punishable. That included being imprisoned for consulting with another person on matters relating to the implementation of measures authorities said violated government policy or instigating others for the purpose of violating such policies.

In addition, Article 5 of the Peace Preservation Law said those who financially supported or provided goods or financial advantages to those conspiring against the government would be imprisoned for up to 10 years. The new law has similar language about providing financial assistance and goods to those who are “terrorists.”

“The Peace Preservation Law was set up with the purpose of repressing revolutionary movements centered on the Japanese Communist Party,” Nageshima says. “A revised version of the law in 1941 made it stronger. Official statistics from the time show that by April 1943, more than 67,000 people had been arrested under the law and just over 6,000 were indicted. Union, religious and cultural activities, and even legal efforts to help those who were punished under the law, became the subject of punishment, and all manner of antiwar and labor protests rapidly declined.”

Law could be applied to foreigners

Imagine the following scenario. Foreigner A is in Japan on a student visa at a local university and, at the invitation of Japanese friends, decides to participate in a meeting about an issue of mutual political concern, concern that includes discussion of how best to oppose that policy. The passionate foreign student ends up becoming actively involved with those Japanese who, for whatever reasons, are later charged with conspiracy to commit one of the 277 crimes named in the legislation. Should Foreigner A be worried about possibly being investigated under the conspiracy law?

Nageshima and Ota both say that non-Japanese need to be careful. The law could be applied to foreign nationals in Japan, although Ota notes that a foreign national who just participates in a group without taking specific action is not supposed to be charged.

Ota also says that one group of foreign residents are likely to find themselves under increased monitoring for suspicious activities now the law has been passed.

“There is an increased possibility the government, citing anti-terrorism measures, will have Muslims placed under surveillance,” Ota says. “But not only Muslims. The possibility has increased that foreigners from the Middle East who come to Japan will also be monitored.”

The threat of a terrorist attack, be it from inside or out, carried out by Japanese or non-Japanese, has been played up by the government. With each new outburst of violence in Europe that the Islamic State group claims responsibility for, many Japanese cast a nervous eye toward the Tokyo Olympics, worried it will prove a tempting target.

And then there is North Korea. Resentment toward Koreans in Japan who were educated at North Korea-affiliated schools has long been a human rights issue of concern both domestically and abroad. However, against the background of such recent worries are the basic attitudes Japanese have about the role of government in maintaining order.

Any number of public and private surveys on Japanese political attitudes exist, but they generally tend to show a greater preference for safety, security, peace and public order than for guarding the rights of public protesters or supporting dissent.

A survey conducted every five years on Japanese values by the NHK Broadcasting Culture Research Institute’s public opinion research division was released in July 2016 and showed that, between 1973 and 2013, respondents continually ranked developing the economy, maintaining order and improving public welfare as being more important for the government to address than protecting people’s rights or increasing opportunities for people to participate in the political process.

Only in 1988, and again in 1993, the beginning and just after the end of Japan’s bubble economy, did the NHK survey show protection of rights and increased political participation were chosen to be of about the same importance as maintaining order.

A more recent public opinion survey by the Cabinet Office on social awareness asked what could be done to improve the extent to which the ideas and views of the people should be reflected in government policy. Not surprisingly, half said politicians should listen carefully to the people and that people should hold an interest in government policy. However, only 13 percent felt that expanding the spaces of public participation was needed.

Both surveys may help explain why, despite the nationwide protests from legal experts, NGOs, the political opposition, and concerns from within his own party that greeted the enactment of the conspiracy bill, Abe pushed it through. Perhaps he believed there were enough Japanese in the “silent majority” who either understood the need for the legislation or weren’t so concerned about their civil liberties being endangered that it would cost him politically.

With the conspiracy bill now on the books and with the passage of the state secrets law a couple of years ago, Abe is gearing up to win political support for his ultimate goal of constitutional revision. That is assuming the Kake Gakuen or a new scandal, or a poor showing by the ruling coalition in next month’s Tokyo Metropolitan Assembly election, combined with an even a greater-than-anticipated backlash over the conspiracy bill, does not force him to step down as prime minister.

What kinds of protest those public, and behind-the-scenes, efforts to change the Constitution generate — and whether those who participate in them will find themselves targeted for surveillance under the conspiracy law — will play an influential role in determining whether the law’s supporters or its opponents turn out to have been more accurate with their predictions.