Japan’s State Secrecy Law Faulted in Human Rights Review

Every four years Japan, like other parties to the International Covenant on Civil and Political Rights, submits to a review of its human rights record before the UN Human Rights Committee in Geneva. This July, Japan was under scrutiny once again, only this time with a new issue on the agenda: state secrecy.

Last December, Prime Minister Abe signed into law the Specially Designated Secrets Act after only seven weeks of public and parliamentary consultation. The law, reportedly drawn up in part to meet United States’ conditions for the sharing of sensitive military information with Japan, increases penalties for unauthorized disclosure of “specially designated secrets” from 5 to 10 years’ imprisonment, and expands both the definition of information that may be designated as secret, and the number of officials with discretion to make this designation. It also permits criminal penalties for journalists and others who merely publish secrets obtained from others.

Many in Japan raised alarms about the law. More than 60,000 took to the streets in protest. The UN Rapporteurs on Freedom of Expression and the Right to Health expressed dismay that “the draft bill not only appears to establish very broad and vague grounds for secrecy but also includes serious threats to whistleblowers and even journalists reporting on secrets.” The UN High Commissioner for Human Rights made a public statement to the same effect.

The Human Rights Committee’s review of Japan’s human rights record provided an opportunity to draw further attention to the law. Amnesty International and 20 Japanese civil society groups submitted statements. The Justice Initiative's submission analyzes the ways in which the law violates international law and good practices, including as encapsulated in the Tshwane Principles on National Security and the Right to Information, which have been widely endorsed.

Demonstrating the seriousness with which Japan takes the Committee’s scrutiny, the government sent to Geneva an exceptionally large delegation including representatives of the Cabinet Secretariat, four ministries, and the National Police. 

After asking these representatives questions, the committee issued concluding observations that raise the main concerns shared by the Justice Initiative and other groups. It noted that high penalties for releasing information “could generate a chilling effect on the activities of journalists and human rights defenders.” And it stressed that no one should be punished “for disseminating information of legitimate public interest that does not harm national security.” The committee also called on the Japanese government to take steps to bring the law and its implementation into compliance with international law.    

Prime Minister Abe’s administration is taking steps ostensibly towards that end. It has issued draft rules that elaborate the law’s key terms, and it has promised to establish an advisory panel on information protection, along with an oversight committee within the government to check the legitimacy of state secrets designated by government entities.

But, the panel is only advisory, and the oversight committee will be comprised of officials of the defense and foreign ministries and the National Police Agency, the main bodies tasked with designating secrets.

Without adequate safeguards of independence, powers to compel declassification, and penalties for over-classification, the proposals do not inspire much confidence, especially in light of the Japanese government’s dismal history of repeatedly suppressing information of vital public interest. The government’s handling of the 2011 Fukushima nuclear reactor disaster—including arrests, home searches and interrogations of reporters who covered the story—was but the most recent, egregious instance. Reporters Without Borders dropped Japan to 53rd out of 180 countries in its press freedom index for 2012, and down another six points in 2014, because of continuing Fukushima secrecy, the new secrecy law, and exclusion of freelance journalists from many press briefings.

In this context, my colleague at the Open Society Foundations Morton Halperin observed that it is “hard to imagine a country that less needs a secrecy law than Japan.”

Only time will tell if the Japanese government is genuinely interested in respecting the public’s right to know and ensuring that whistleblowers and journalists can disclose information of legitimate public interest without fear of high penalties.