Japan's New State Secrecy Law Threatens Public Accountability

NEW YORK—The Open Society Justice Initiative has expressed its deep concern over the provisions of Japan’s new state secrecy law, adopted by the country’s parliament on Friday.

Sandra Coliver, senior legal officer at the Justice Initiative, noted that the new law falls far below international standards in setting strict limits on the public’s right to know about national security and national defence issues.

“This law represents a step backwards for Japan,” said Coliver, who heads the Justice Initiative’s work on right to information issues. “It proposes a level of secrecy that threatens proper public accountability.”

Morton Halperin, senior advisor to the Open Society Foundations, who held key national security positions in three U.S. administrations, said: “This law is about as bad as any that a democratic government has considered in the 21st Century. What is of equal concern is the speed at which it was enacted without extensive hearings or consultation with civil society and global experts.”

Frank La Rue, UN special rapporteur on freedom of expression, has expressed concern that the bill “not only appears to establish very broad and vague grounds for secrecy but also includes serious threats to whistle-blowers and even journalists reporting on secrets.”

The new law includes the following provisions:

  • It would dramatically extend current powers under a 2001 law that empowers the Minister of Defence to keep confidential information “especially necessary to be made secret for Japan’s defence.” The new bill would extend this power to several vague and over-broad categories of information, including defence, diplomacy, “designated dangerous activities,” and prevention of terrorism.
  • The list of government entities empowered to designate information as secret would be expanded beyond the Defence Ministry to include every cabinet ministry and major agency of the government.
  • The maximum penalty for disclosure of classified information would be increased to 10 years imprisonment from 5 years under the 2001 law.

There is no provision for reviewof secrecy designations by an administrative body that is fully independent of the executive branch, as well as by the courts.In addition:

  • It does not include a “public interest override,” that would allow disclosure if the public interest in the information outweighs the likely harm from disclosure.
  • It fails to include a public interest defense. This provides that a person who leaks information of high public interest should not be subject to criminal penalties if the public interest in the information is greater than the actual harm caused.

In all these areas, the law falls far below international standards and best practice, as reflected in a set of  global principles on national security and the right to information, called the Tshwane Principles, which the Justice Initiative helped draft.

The Tshwane Principles are based on international and national law, standards and good practices, and are reflected in the laws of modern democracies as well as decisions of regional courts. They were drafted by 22 organizations and academic centers from around the world, in consultation with more than 500 experts, including with security sector, intelligence and diplomatic experience. They have been endorsed by the Parliamentary Assembly of the Council of Europe, the relevant UN special rapporteurs, and the special rapporteurs on right to information or freedom of expression of the Inter-American and African human rights systems.

The principles recognize that the government is justified in keeping sensitive information from the public for periods of time, as long as secrecy decisions are necessary to protect against an identifiable harm and are periodically reviewed. The Japanese bill does not meet this standard.

Prime Minister Shinzo Abe has repeatedly declared that the need for a tougher secrecy law is indispensable to his plan to create a National Security Council based on the American model. Japanese newspapers have also reported that U.S. officials have pushed Japan to tighten its secrecy regime.

But several close U.S. allies allow public interest considerations in classification decisions, have maximum penalties of five years or less for unauthorized disclosures of classified information, permit designation of state secrets by fewer ministries, and have processes by which secrecy designations can be challenged before the courts and/or other independent bodies.

“The model of US classification is hardly one that should be forced on other countries. The huge amounts of information classified by the US government make it virtually impossible to protect genuine secrets,” Sandra Coliver added. “National security is best protected when the public is well informed about the state’s activities, including those undertaken to protect national security.”