Japan’s state secrecy laws still a secret

What makes this law potentially destructive?

Aditi Razdan

Politics | East Asia

15 November 2016

In the first year after Japan’s State Secrecy Law was enacted, various ministers and agencies classified 382 issues as state secrets.  The law is well into its second year, yet we still don’t know what actually constitutes a ‘state secret’.

Prime Minister Abe railroaded the Act on the Protection of Specially Designated Secrets (SDS) through the Diet, or Japanese parliament, in spite of 80% opposition from the Japanese public.  

As of December 2014, whistle-blowers can be imprisoned for 10 years if they leak state secrets, and journalists publishing this information face upto five years in jail and a hefty fine. The law targets terrorism, espionage and defence leaks, and at first glance, it is familiar and expected given the current reality of transnational crime and terrorism.  

Yet the media watchdog, Reporters Without Borders, have warned that the law is an “unprecedented threat to freedom of information” and an “obstruction of peoples’ right to know.”

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So what makes this law potentially destructive?  It’s because it makes Abe and his administration the judge, jury and enforcers.  

The ambiguity of the law extends beyond the definition of a state secret. Government ministers and agencies determine what a state secret is, and oversight of these decisions is managed by a panel and committee appointed by Abe.  In actions that do not resemble the democratic principles Japan has been lauded for, there has been little public consultation, no parliamentary consensus on what a state secret is, and a lack of transparency in the law’s operation.  

Alarmingly, any agency or government minister can store a secret for 30-60 years.  This time period is longer than the tenure of a regular bureaucrat or politician, bestowing power to a government far beyond their democratically elected time in office.

Freedom of speech is enshrined in Japan’s post-war constitution; it has cemented Japan’s place as a free, democratic society and ensured trust in media and politics.  This recent law shifts the norm, making freedom of speech conditional and communication between politics and wider society a condition of the government.  

In a meeting, the Executive Controller of International Relations for state broadcaster NHK, Akinori Hashimoto, admitted that there was always tension between “politicians and journalists, but freedom of speech and competitive media ensured these tensions were stabilized”.  However, with these most recent laws, it is unlikely that the media could compete with each-other for so-called state-secrets, let alone compete with the government.

This has implications for every level of information gathering.  Whilst Hashimoto maintained that the state broadcaster remained independent, he revealed that the new laws “make it harder to find sources in the bureaucracy”.  The law is quietly strangling potential critique in a time where Abe has a sweeping grip on power.  Scrutiny is at the heart of democracy, and without it, Abe’s choices go unchallenged.  

This chilling effect is arguably more damaging than the law itself.  It is the threat of revealing a state secret that deters whistle-blowers and journalists, and the threat of breaking the new laws.  In such a way the ambiguity of the SDS was likely intentional to allow for discretionary operation by ministers and government agencies, as well as acting as a mechanism that scares people into silence.   

A state of fear and distrust is contagious.  

And where will people seek remedy? The only place that has answers-the government. This is the fastest way to reverse a culture where facts are dissected, truth is grappled with and opinions are not coerced.  

Katsumi Sawada is  a reporter from Japan’s oldest newspaper Mainichi Shimbon.  In his opinion, “The law shows that the influence of Abe has increased, as his personal opinions have influenced the law.”  Personal opinions should not override the opposition of a 100 million citizens.  But in a post-2014 Japan, it seems Abe’s do.  

Ordinarily, a country would have counter-measures that protect journalists and their sources from this type of law.  This source of protection is non-existent in Japan.  Furthermore, there is no “public interest override” that would recognize circumstances where the public interest outweighs any potential harms of disclosure.

It is difficult to measure the effects this law has had on free media in Japan.  When a state secret itself is not defined, it is nearly impossible to determine what media outlets can no longer report on. What is clear however is that this law, in all its vagueness, signals that the government are the ultimate arbiters of what is free and what is not.  This is blatant overreach and something that Japanese citizens did not choose.

In a time of constitutional change previously unseen in Japan’s post-war history, confusion over Japan’s nuclear energy plans and continued mismanagement of Fukushima relief efforts, open debate and dissent is crucial.  However, a monopoly on truth does make it much easier to govern.

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