Abe's secrets law undermines Japan's democracy

On Dec. 10, Prime Minister Shinzo Abe’s new special secrets law took effect despite overwhelming public opposition.

The new law gives bureaucrats enormous powers to withhold information produced in the course of their public duties that they deem a secret — entirely at their own discretion — and with no effective oversight mechanism to question or overturn such designations. The law also grants the government powers to imprison whistle-blowers, and prohibits disclosure of classified material even if its intention is to protect the public interest. This Draconian law also gives the government power to imprison journalists merely for soliciting information that is classified a secret.

But if the designation is itself secret, how is a journalist to know if they are courting arrest? The constitutionally guaranteed freedom of the press now confronts the discretionary powers of an unaccountable bureaucracy swathed in secrecy. In the course of doing their job, journalists could unwittingly solicit secret information and thereby be in violation of the new law and subject to imprisonment. The government maintains that the new law would never be applied in such a way, but the wording of the law remains vague enough that it could be.

It is not terribly reassuring that journalists from media outlets that “properly serve the public interest” (presumably this excludes the Asahi Shimbun) are exempted from prosecution unless they “break the law or use especially unjust means.”

Susumu Murakoshi, president of the Japan Federation of Bar Associations, says the law should be abolished because it jeopardizes democracy and the people’s right to know.

Meiji University legal scholar Lawrence Repeta agrees with Murakoshi.

“Establishing a balance between national security secrecy and the people’s right to know is a monumental task,” Repeta says, but suggests that such a balance is embodied in the Open Society’s “Tshwane Principles,” which provide for the protection of whistle-blowers who disclose information in the public interest.

Abe understands that the public is against the secrecy legislation and tried to reassure us in an interview on TBS last month.

“If there is a case where news reporting is suppressed, I will quit,” he said, adding that the law is “aimed at terrorists and spies. Citizens have nothing to do with it.”

But the enforcement of law should not depend on good intentions and a politician’s promise. Laws outlast the former and the latter are repeatedly broken. The current legislation grants the government too much discretion to decide what is secret and hide inconvenient information from public scrutiny. This is a recipe for bad governance and abuse of power.

Americans know this all too well. The Freedom of Information law in the United States did not become an effective tool for transparency until after President Richard Nixon’s Watergate scandal in the 1970s. More recently, Americans learned about a massive government data collection program regarding their phone calls, web searches and emails involving the secret cooperation of private sector service providers. We know this because of a whistle-blower, Edward Snowden, who exposed the sweeping extent of this illegal surveillance.

Japan’s new secrecy legislation provides for imprisonment of up to 10 years for leaking or seeking classified information deemed damaging to Japan’s national security. Nixon also invoked the nebulous concept of national security to block publication of the Pentagon Papers, but the Supreme Court rejected this sophistry and the public discovered what the government didn’t want them to know about the calamitous Vietnam War.

Japan’s media-muzzling initiative has drawn criticism from domestic civil-society groups and Reporters Without Borders because the people’s right to know and freedom of the press — essential pillars of a democratic society — are at risk.

“The right to know has now officially been superseded by the right of the government to make sure you don’t know what they don’t want you to know,” wrote Jake Adelstein in The Japan Times last year.

There are good reasons why 80 percent of the public opposes this bill. Would the investigations into the causes of the Fukushima nuclear accident and the collusive relations between coopted regulators and the utilities that compromised reactor safety have been made public under the new law?

The reason why the public and media pressured the government to enact the national Information Disclosure Law in 2001 was because similar prefectural and local ordinances had exposed extensive malfeasance by bureaucrats and their squandering of vast sums on lavish wining and dining in the 1990s.

The grass-roots spread of such ordinances was prompted by the experience of survivors’ families who wanted to find out about the 1985 Japan Airlines crash that claimed 520 lives. They did so by using the U.S. Freedom of Information Law to access crash investigation reports that they couldn’t get from their own government. People supporting greater transparency are also mindful of the government’s role in knowingly allowing the distribution of HIV-tainted blood products in the 1980s to support Japanese pharmaceutical firms at the expense of hemophiliacs.

Bureaucrats are not so keen about disclosure. Back in 2002, the Defense Agency was caught illegally investigating and maintaining dossiers on 142 people requesting information. The press was tipped off about this surreptitious surveillance, again showing the value of whistle-blowers and the need to protect, rather than persecute, journalists helping the public exercise oversight.

Responding to public criticism, the Abe government has established a toothless oversight mechanism. The “public document inspector” will be based in the Cabinet Office, raising questions about how independent the review process will be. Moreover, ministers can turn down requests by the inspector to declassify material and need not submit documents for inspection at their own discretion. This perfunctory oversight mechanism will ensure a cocoon of impunity that threatens Japanese democracy.

So who gets to handle the state’s precious secrets? The Cabinet Secretariat has warned government offices that such sensitive tasks should not be assigned to staff that have studied or worked abroad or attended foreign schools in Japan. Huh?

So after years of spouting off about the benefits of internationalization and encouraging young Japanese to study abroad, the government is now penalizing those who have done so? Apparently the state is suspicious that such people might pose a greater security risk.

Based on this logic, the Ministry of Foreign Affairs must be a hotbed of spies and will be reduced to recruiting diplomats with no international experience whatsoever. With all these special secrets to protect, won’t Japan now need a special police unit to keep them safe and round up the globalized subversive elements lurking within the bureaucratic labyrinths?

Satoko Norimatsu of the Peace Philosophy Centre worries about a climate of fear.

“One of my blogger friends told me he was going to close his political blog because of the law coming into effect,” she says. “I told him that such self-censorship is exactly what the government wants.”

Professor Repeta further warns that excessive secrecy leads to war.

“The Japanese people should not forget that the same U.S. officials who pressured Japan to adopt a law that imposes heavy penalties on whistle-blowers and others who may seek to release secret information have also demanded that Japan revise Constitution Article 9,” he says.

Abe’s re-election gives him more time to expand on the bitter legacy he is intent on bequeathing, one that many Japanese already rue.

Jeff Kingston is the director of Asian Studies, Temple University Japan.