Japan’s secret bill passes upper house committee

12/05/2013
By

As thousands protest, a press briefing attempted to put to rest some of the fears surrounding Japanese legislation relating to official secrets

TOKYO (majirox news) — Six thousand people joined hands to form a chain around the Japanese Diet building on the evening of December 4 in a protest against the “Secrets Bill” introduced by the Abe administration. Earlier the same day, a briefing on the legislation was held for the foreign press. A Japanese official provided details of the bill, emphasizing recent amendments.

The bill was passed by the upper house committee the next day among stormy scenes, but it is unclear at this time how many further amendments have been added since the briefing.

Media figures and scientific researchers, including Nobel laureates, voiced opposition to the bill in its original form. Popular protests and widespread parliamentary opposition to the bill, which was the result of the administration’s steamrollering of the legislation through parliament, were responsible for many changes, and forced Prime Minister Abe to provide a more detailed explanation of its workings. Many claimed that there had not been enough time allocated for study and debate of the bill and its broader implications.

The official at the press conference emphasized several key points of the bill: what can be classified as a secret; the timing and method of classification and declassification; and how the legislation affects journalists. Some details of these are given below.

Some reassurance was provided that the bill is not as draconian as was originally believed by some commentators. Though it may be premature to make a final judgment on the matter, it does not appear that thought control by the government of Japan is just round the corner.

In any event, the passage of the legislation has not been the walkover that the administration expected, and recent events show that popular opposition combined with parliamentary opposition can act to some extent as the checks and balances necessary in a healthy democracy.

Some Details from the Briefing
The bill’s official name is Bill on the Protection of Specially Designated Secrets, which may sound like a piece of Orwellian doublespeak for “censorship,” but the goal is to prevent the unauthorized leakage of information by public servants. It narrows the scope of “secrets” when compared to Japan’s current National Public Service Act.

Japanese officials have been working on this bill since the events of September 11, 2001, and there were reports that Japan has been under pressure from the US to clean up its act with regard to secrecy legislation (not mentioned in the briefing).

What is a Secret?
For information to be designated as a “Specially Designated Secret” (SDS), it must meet all three of the following criteria: it must fall into one of four categories (below); must be undisclosed; and must require special secrecy, as “unauthorized disclosure would cause severe damage to the national security of Japan” [official provisional translation].

The four categories, with specific enumerated sub-categories, relate to defense, foreign affairs, prevention of terrorism, and “prevention of Designated Harmful Activities”.

For this last category, the briefer gave examples of counter-intelligence and measures to prevent the traffic in weapons of mass destruction. However, it is worth noting that future redefinition and expansion of this category could be done without reference to the legislature, and might include (for example) militant trade unions, or those opposed to the government’s energy policy, etc.

As an example of the potential for misapplication, LDP General Secretary Ishiba recently wrote on his blog that “noisy protests against the government decision are tantamount to terrorism.” He has since partially retracted the statement. However, such unusual definitions could be misused by future administrations.

Who can Classify secrets?
Only the head of an administrative organ (Ministry or equivalent body) may designate information as a SDS. About 60 people nationwide will have this authority. There will be oversight committees, and annual reviews of the way this authority is exercised.

On Declassification
Japanese agencies in the past have sometimes been guilty of losing or accidentally destroying classified documents at the end of their designated term of secrecy, meaning that the details of what was described therein are forever lost. The bill makes no reference to this practice, and heads of administrative organs who fail to declassify such documents as a result of destruction will merely suffer the usual administrative penalties (in most cases, a minor symbolic slap on the wrist).

Freedom of the Press
The government is keen to lay to rest fears that the freedom of the press will be restricted. This has been a major issue in the public’s perception of the bill, and it is one which has attracted the most attention from journalists. The term “journalist” is generously defined – regular political bloggers are included in the definition, and the official provisional translation of Article 24, Paragraph (1) reads:

Acquisition of SDS through unlawful acts, etc. shall be punished only when the perpetrator intends to serve interests of foreign countries or obtain illicit gains or to utilize the SDS in question in order to jeopardize the security of the state or lives and bodies of the people, so that those who acquire SDS for the purpose of news reporting shall not be penalized.” [emphasis in the original]

Also that, “news gathering by those engaged in the publishing and the press [sic] shall be lawful as long as it is intended exclusively to serve public interests and not judged to be done through violations of laws or grossly unreasonable means.” [emphasis in the original]

The onus is on those entrusted with SDS as the result of a vetting procedure (the scope of which is defined in the bill) to keep those secrets confidential.

A journalist looking at and reporting on a secret paper on a desk in an unlocked empty office would not be liable to prosecution, though the owner of the desk might well be. However, should the journalist force open a locked door, wire-tap a phone, or hack a computer, he would be deemed to have gained access through “intrusion”, “eavesdropping” or “unauthorized access” respectively, and would be liable to penalties.

Oversight
Though new oversight bodies have recently been announced, based on US models in some cases, the composition of these bodies will largely be determined by the Prime Minister, and could in theory be composed of political cronies, rather than being an independent group which could comprise, for example, newspaper editors. In addition, the Cabinet (not parliament), determines any changes to the guidelines governing the application of the SDS category – though this must be the result of a unanimous Cabinet decision, and such changes will be made following the advice of one of the expert panels.

Other Question Marks Remain
Despite the presence of various oversight bodies, the Prime Minister will have ultimate responsibility for determining the declassification. It is doubtful whether any person in this position will be able to fulfill the role competently, given other demands on his or her time.

Why were some of these provisions to journalistic freedom omitted from the original language of the bill (though the Constitution would appear to take precedence here), and oversight in the current form not included? It may be speculated that the Abe administration was intending to slip the bill in at the end of the current parliamentary session under the radar, without putting in the checks and balances that have since been added, however this is only speculation. Certainly, the need for such a tightening of the law was perceived for over a decade — it is not the case that the bill has been hastily thrown together.

The recent revisions do appear to provide comfort in many areas, but there are still various points which remain vague at the time of writing. Parts of the bill, particularly those relating to the appointment and composition of committees are subject to interpretation and do not mandate procedures, but merely recommend them. The final impact of the bill on the workings of the bureaucracy and the media remains to be seen.

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