Human Rights Now, a Tokyo based international human rights NGO, has issued a statement concerning the Japanese governments special secrets bill, which will undermine the principles of democracy and human rights, especially the right to information.
International media, journalists, UN experts and human rights NGOs have also expressed grave concern over the bill. Learn more below:
UN Special Rapporteur on the rights to freedom of expression, rights to health
Japan: ‘Special Secrets Bill Threatens Transparency’
Human Rights Watch
Amend “Special Secrets” Bill to Protect Public Interest
Human Rights Now strongly opposes the Japanese Special Secret Bill
The Japanese government recently proposed a Special Secrecy Bill for enactment, and the bill is currently under discussion in the Parliament. Human Rights Now expresses its grave concern over this bill and strongly opposes its enforcement as law for the following reasons:
1. According to the bill, a very wide range of information will be specified as a ‘secret’ and kept away from civilian eyes. Information defined as a ‘secret’ in this bill includes information on defence, diplomacy, counterintelligence and counterterrorism; which means that quite comprehensive sets of information will be specified as secret. There is a high probability that almost all information related to military, diplomacy and counterterrorism is to be categorized as ‘secret’. The bill itself does not specify any clear objective criteria to determine what is secret, thus there is no legal limitations to designating secrecy even though the bill says that criteria will be designed based on consultation with experts. This will keep a lot of information away from the nation, and it is highly likely to violate the ‘right to know’.
2. The designation of secrecy can be done arbitrarily by ‘a chief of an administrative agency’ (Article 3), and there is no framework of democratic control by third parties or the Diet, which means that there is no institutional security to preventing inappropriate designations of secrecy. The designation of secrecy will be valid for 5 years, but it can be extended. Principles of disclosure of secrets are not stipulated.
3. The bill does not contain any safeguard articles for immunity of whistle-blowers. The current Whistle-blower Protection Act may protect whistle-blowers from detriments such as dismissals, but it does not protect whistle-blowers in cases of prosecution for any criminal charges. This means that governmental officers could be punished when they accuse the government of unjust and illegal acts.
4. A further problem is that the Secrecy Bill has an article stating that even mere complicity with a violation without commission will be punished as follows: ‘a person that colludes with, abets and agitates someone else to disclose a secret will be sentenced to imprisonment of less than 5 years’ (Article 24). This article presents a risk of punishment for the activities of journalists, and it flagrantly violates freedom of press and expression.
Although Article 21 states that consideration of freedom of the press and expression be given, this is just an advisory provision which does not prevent abuse of investigation authority, as there is no clear definition of ‘a person who is in charge of publication or press’ that the bill designates as the person who will be given such consideration. Civil society actors such as NGOs might be punished due to their monitoring activities and discussions over such activities by gathering and releasing information of the government. The proper functioning of democracy whereby civil society oversees governmental administration and authority – a form of checks and balances – will be seriously damaged by this bill.
5. The bill stipulates that once information has been designated as secret, it will not be disclosed to courts or the Diet except for limited and exceptional occasions. Disclosures to the Diet will be limited to cases ‘when the disclosure of information is acknowledged as information that does not cause serious damage to our national security, and only be disclosed to closed-door sessions or investigations of an official meeting of houses or a committee of Parliament.’ Members of Parliament cannot obtain a copy of the secret based on their investigative power. Furthermore, disclosure to courts is also strictly limited, which will surely disturb judicial review. Criminal trial defendants will face difficulties in defending themselves fairly, and their rights to receive due process and a public trial might be unduly violated. This bill will allow the government and bureaucrats to work arbitrarily while the Diet and courts will not know anything, and major decisions regarding national defence and diplomacy may be made without any acknowledgement by the nation or politicians.
6. The Global Principles on National Security and the Right to Information (The Tshwane Principles) stipulates that: monitoring agencies such as courts or ombudsmen have a right to access information (Principle 6); information regarding human rights violations by the nation (violations of international human rights and humanitarian law), monitoring of civilians by the nation, decisions on the use of force by the nation, nuclear /weapons of mass destruction, infringement of the constitution or laws and abuse of power, public health, safety of civilians, or environment should be disclosed (Principle 10); whistle-blowers should be protected (Principle 40, 41, and 43); civilians other than government officials will not be punished for receiving and unveiling secret information as well as not being accused of conspiracy or other suspicion due to obtaining or requesting information (Principle 47); and the secrecy of the origin of information will be guaranteed (Principle 48). However, the bill which is under discussion is far from meeting these principles.
7. Originally, current legislation in Japan, such as the National Public Service Act, Local Public Service Act and Self Defence Force Act have already prescribed punishments for disclosure of secrets. The government has not clarified the necessity to expand the scope of this crime as well as stiffer penalties. Nor has it it demonstrated the insufficiency of the current law.
8. Therefore, Human Rights Now expresses our grave concern on this bill and oppose it. To the government, we strongly request it not to enforce this bill as it endangers the protection of human rights and democracy.