Japan’s secrecy law seen as draconian

Tokyo, Japan – “Abe colour” is an expression occasionally used in Japan’s domestic media. It means those government policies that reflect Prime Minister Shinzo Abe’s personal views, and the term relates to his hawkish security policies. Critics claim the secrecy bill passed into law in December 2013 is said to be one such example of “Abe colour”, and it will go into effect this December.

Proper safeguards and oversight bodies were supposed to be included, but critics say that this secrecy law is still far from adequate.

One of the strongest critics of the new law comes from the Japan Federation of Bar Associations, which has asked the government to completely reconsider the law. Yoichi Eto, its representative, told Al Jazeera: “This law simply provides new powers to the government officials. It says that they are authorised to do this or that. But it has nothing to say at all about what officials must not do.

“There are no limits on the scope of this law, and that is its biggest problem,” Eto said.

Almost every critic of the law points to the vagueness of its language; the manner in which the line between what is allowed and what is forbidden is not clearly specified.

“If we don’t have clarity in the regulations, if we don’t have clarity in the law, then we don’t know what is the extent of the government’s power,” said Lawrence Repeta, a law professor at Meiji University in Tokyo. “We don’t know how government agencies will use that power, to what degree, to what extent, what range of information may be covered.”

Professor Repeta goes on to note that the law makes no distinction about whether or not information is properly designated as a secret, or if release of the information will actually have any negative effect on national security, or if it is demonstrably in the public interest: All that the new law says is that if someone reveals something designated (for whatever reason) as a special secret, then they have committed a crime for which they may spend up to 10 years in prison.

The new Japanese secrecy law also specifically targets journalists. While there is language in the text that supposedly guarantees “normal” journalistic practice, it also says that reporters and others who utilise “inappropriate means” to learn a special secret may be subject to prosecution and up to five years in prison.

What exactly constitutes “inappropriate means” to gather the news? The law is silent on this point, suggesting once again that the government and police will decide for themselves what the law mandates, once they are faced with a specific case.

Journalists at risk

Japan’s freelance investigative journalists are at particular risk, as the government may not even recognise their status as being part of a legitimate news media.

Yu Terasawa, recently cited by Reporters Without Borders as one of the world’s “100 Information Heroes” – the only person in Japan given such an honour – sees the main purpose of the law as preventing the media from revealing embarrassing information to the public. “The present government has an unusually large number of things that it wants to hide,” Terasawa said.

“This includes issues surrounding the accident at the Fukushima Daiichi nuclear power plant as well as, looking forward, possible conflicts with China, Russia, or North Korea.”

Terasawa is part of a group of 43 freelance journalists and other writers who have launched a lawsuit against the new secrecy law. Michiyoshi Hatakeyama, another freelance journalist who is a plaintiff in the case, explains: “What is a secret? The line where these special secrets begin will not be clear. Even if one is arrested and you ask them why you’ve been arrested, that too may be a secret under this law.”

For its part, the Abe administration has been very reluctant to publicly defend the secrecy law since its passage last December. The minister put in charge of handling the issue, Masako Mori, is the most junior member of the Abe Cabinet, whose portfolio is Minister of State for Gender Equality, the Declining Birth rate, and Consumer Affairs. She declined repeated requests from Al Jazeera to explain the government’s position on the secrecy law, and at a press conference this month at the Foreign Correspondents’ Club of Japan, the minister indicated that she only wanted to address the issue of gender equality.

Still, one journalist managed to challenge the minister on the secrecy law, and her defence of it consisted of denying that it posed any particular problems for the public good. She asserted that all necessary protections for journalists and for the public’s right to know had been properly legislated.

She also claimed that whistleblowers are fully protected under Japanese law. The only problem she acknowledged was that the government may have made insufficient efforts to inform the public about the responsible and entirely appropriate nature of this particular law. “The secrets protection law was written after exhaustive research on similar legislation of other countries,” Mori said.

No oversight

Outside Japan’s government, independent observers directly contest these claims. 

In the summer of 2013, the Global Principles on National Security and the Right to Information, better known as the Tshwane Principles, were issued after a study involving more than five hundred experts from more than 70 countries at 14 meetings held around the world. The Tshwane Principles calls on governments to protect and uphold freedom of information. 

Professor Repeta, for example, states: “One of my biggest complaints about Japan’s parliamentary procedure was they didn’t consider the Tshwane Principles at all. It was as if they did not exist.”

One of the world’s top experts on secrecy and declassification procedures, the former Director of Policy Planning at the US State Department, Morton Halperin, agrees with Repeta that the Japanese secrecy law in no way conforms with the Tshwane Principles and reflects an extremely alarming approach to secrecy legislation.

Among the problems cited by Halperin are that in the new Japanese law there is no credible third party oversight of the secrecy designation and its declassification systems, no concept that the public interest might sometimes override the need of the government to keep secrets, and no provision in the law that bureaucrats must explain why a particular document should be designated as a special secret.

The Abe administration has asserted repeatedly that fears about its new secrecy law are overblown. They say that the government will be restrained and responsible in the way that it applies the law to specific cases.

The problem, however, is that there is nothing in the law that actually obligates the government to act with restraint, and even if the Abe administration is sincere in its promises to act responsibly, it has handed an alarmingly broad power to future Japanese governments whose practices are far from certain.

Even in the absence of the new secrecy law, the Japanese government’s actual operations are often guarded from public view. Almost every major study of Japan’s mainstream media notes its tendency to shy away from investigative political reporting and to “reveal” to the Japanese public that information simply handed to them by the public relations officials of the various ministries and other government agencies.

In this context, Morton Halperin observed: “It is hard to imagine a country that less needs a secrecy law than Japan.”

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