As if it ever needed repeating, the people of Japan were once again treated to a reminder of how secretive and arbitrary their government can be during the nuclear disaster in Fukushima 2011. Government foot-dragging and reluctance to divulge information meant that people remained exposed to high doses of radiation for over a month after the meltdown with potentially grave health consequences. Now, what is easily the most right wing government Japan has seen in decades has forced through parliament a bill to classify “special secrets” that would essentially give the executive carte blanche to withhold information on a massive scale, not seen since the period of militarism directly leading up to, and during, World War 2.

The law, known as the Designated Secrets Bill, was hurriedly rammed through the more powerful lower house on 26 November, and then passed through the upper house in equally speedy fashion on 6 December. It gives unrestricted power to the executive to designate a broad range of information as national secrets. There are no effective checks or balances, no truly meaningful opportunity for the involvement of any independent body, and no effective way to ensure that the executive is not abusing its power. Only the barest of outlines of information regarding what sort of information has even been designated as secret will be disclosed to the public. The bill would violate the right of people’s right to access information, severely punish whistleblowers, and have a chilling effect on journalism, civil society organizations, and the actions of concerned citizens.

The government has repeated the mantra that the bill is necessary because Japan is a “heaven for spies” due to a lack of espionage and state secrets legal infrastructure. They would have the people believe that the government lacks the power to keep information confidential, and that Tokyo is full of foreign agents who freely collect sensitive secrets. Nothing could be further from the truth – the government already designates a wide range of information as confidential – 410,000 pieces of information have been designated so since a sweeping government policy was implemented on this in 2009.

In addition, in response to a question in parliament, Prime Minister Abe admitted that the government was aware of five cases of “leaks of important information by civil servants” over the past fifteen years. Five cases over fifteen years can hardly be described as a “heaven”. The truth, as even the government admits, is that this bill is intrinsically connected with another bill adopted by parliament in November, establishing a National Security Council much along the lines of the US body by the same name. Indeed, the Secrets bill specifically provides for the sharing of designated secrets with foreign governments, who are apparently more trustworthy than Japan’s own people.

Constitutional infringement

There are four categories of information listed in the bill that could potentially qualify for designation as a secret - defense, diplomacy, “designated dangerous activities”, and prevention of terrorism - but they are worded in an extremely broad manner. Seemingly any kind of information related to defense could qualify, as well as any “important security related information” in the area of foreign relations, any information related to official efforts in the area of counter terrorism, and any information related to “activities potentially harmful to national security”. The possible designations of particular information as ‘secret’ are essentially infinite; though there is a principled maximum period of sixty years (already extremely long) stipulated in the amended bill, there are also categories of information – almost equally sweeping - which it is possible to designate secret with no time limit. The role envisioned for parliament is extremely limited, to the extent that it would most probably be meaningless.

The bill does state that, in applying the law, the government should “fully take into account” journalistic reporting “aimed at ensuring the peoples’ right to access information”. These provisions are "vague" to say the least, and appear to grant the government leeway to decide which reporting is “aimed at ensuring” this right. But punishments for the revealing of secrets are severe – up to ten years imprisonment for civil servants or persons subcontractors dealing with secrets. Persons who obtain secrets through illegal means are also subject to up to ten years imprisonment, and persons who “incite” the revealing of secrets are subject to up to five years imprisonment. Persons who reveal secrets through negligence can also be subject to imprisonment, as are persons who “incite” or conspire to divulge secrets.

It is worth pointing out that the right to access information is not only a vital element of the right to freedom of expression, but also a fundamental human right guaranteed by the Japanese constitution. Article 21 states that “freedom of…speech, press, and all other forms of expression are guaranteed” and, in accordance with developments in international law, this article has been interpreted by the Japanese courts to include the right to access information. The same article also states that the government must “refrain from violating fundamental human rights in an unreasonable manner” in applying the law, begging the question as to what “unreasonable” means in this new environment.

Even worse, article 21 goes on to say that reporting by the media will not be punished “insofar as those activities are aimed solely at ensuring the public interest and are not based on illegal or clearly unreasonable methods”. There is no definition of what the “public interest” means in this context, and just how the government will ascertain this. The government has even stated that some bloggers and other social media activists may not fall under the definition of “media” in this article, indicating that even the above pathetic safeguards would not apply.

As one could imagine, public outcry regarding the bill has been intense with near-daily demonstrations and criticism from human rights organizations, including the Japanese Bar Association, former prominent conservative MPs, academic societies, journalist societies, and prefectural and local councils. Unusually for a country that is used to being under the radar of international scrutiny, the bill was also the target of harsh criticism from human rights actors in the United Nations. The UN Human Rights Council Special Rapporteur on Freedom of Expression together with the Special Rapporteur on the Right to Health issued a statement criticizing the sweeping provisions of the bill, and the lack of protection for whistle blowers. The UN High Commissioner for Human Rights also expressed similar concerns.

Government responses to these concerns have been a shining example of evasion, vagueness, and a condescending ‘shut up and trust us’ mentality – indeed, the fact that the government opened the bill to public comment for only two weeks, as opposed to the normal practice of a full month, shows the contempt in which it holds views it does not agree with. One NGO filed a request for the minutes of the meetings of a government panel that had discussed the provisions of the bill – minutes that date back to 2008. In an insult to the notion of government accountability, the documents the NGO was provided with were almost completely redacted, i.e. blacked out.

A new chilling effect

In one telling response to the obvious question of what would entail a “clearly unreasonable method” of reporting, Minister Masako Mori, the female Cabinet member charged by Prime Minister Abe to steer the bill through parliament seemingly for no reason other than placing a woman in front of the cameras would give the bill a ‘soft’ image, gave the example of the infamous Nishiyama case of 1972. Takichi Nishiyama, a former journalist for Mainichi Shimbun, a major Japanese broadsheet, was arrested for obtaining information from a Japanese Foreign Ministry secretary (with whom, it later came to light, he had been having an affair) regarding a secret agreement between Japan and the US surrounding the return of Okinawa to Japanese sovereignty. Though the agreement that had been made public by the two governments had stated that certain expenses totaling USD 4 million would be paid by the US, this was an outright lie, and the secret agreement specified that the costs would be footed by the Japanese.

For his efforts in exposing government deception of the people, Nishiyama was convicted in 1978 of inciting a civil servant to reveal confidential information. 30 years later, declassified US government documents confirmed Nishiyama’s allegations – and yet his name is used by the government as a good example of ‘bad’ journalism. Tellingly, Mori has declared that subjects of intense public debate, such as the Trans-Pacific Partnership (TPP) economic agreement currently being negotiated behind closed doors with the United States and other countries, could be designated as secrets. And government reassurances have been unable to quell fears that with such broad provisions in the bill, important information regarding nuclear safety could be designated as secret as well.

Perhaps most important in all of this is the chilling effect that the law would have on people accessing or publishing any sort of information. With the opaque phrasing of the law persons will have no idea as to whether information they are accessing or publishing is in fact a designated secret. The Japanese Bar Association notes that, under the provisions of the bill, it is entirely plausible that people could be accused and tried without them or their lawyer being told exactly what information they are accused of having revealed. Unsurprisingly, government assurances that persons who accidentally come across or reveal secrets would not be punished are not convincing – and logic indicates that, even if they ended up not being punished, such persons would be subject to investigation.

In the early hours of 5 December, the government announced in response to mounting pressure that it would create two 'independent' bodies to oversee implementation of the law and ensure that there was no abuse. However, of these two bodies, only one is truly independent – a panel of legal experts which will advise the PM in creating guidelines regarding the designation of secrets, and which will receive an annual report on implementation of the law. However, it appears that the PM will only provide this panel with a simple outline stating the number of pieces of information that had been designated secret by category. Beyond that, there is no clarity as to how this panel would operate, and how much power it would actually have. It would be child’s play for the government to appoint a panel of government cronies to rubber stamp a one page note.

Calling the other body to be created “independent” is an insult to one’s intelligence. The “oversight committee for information retention” will monitor application of the law and ensure that there is no abuse, and is clearly the more powerful body of the two. However, it will be made up of undersecretaries (the highest ranking civil servants) from the Foreign and Defence Ministries – the two ministries that will undoubtedly be designating the largest number of secrets. Unsurprisingly, no one in Japan expects any kind of serious oversight from this body.

Many opposed to the bill have pointed out strikingly similar language in legislation from darker times, in particular the infamous National Defence and Public Security Act of 1941, which was used by the government to jail opponents of the war effort. The Japanese experience from those days is that government secrets lead to more government secrets, and then to war. To use a phrase the generation that remembers the 1930s often uses to describe the creeping nature of militarism - the jackboots come closer and closer.