Statement Concerning the Approval of the Cabinet Meeting Regarding the Bill on the Protection of Specially Designated Secrets
Today, the Bill on the Protection of Specially Designated Secrets (hereinafter referred to as the “Bill”) was approved by the Cabinet.
The Japan Federation of Bar Associations (the “JFBA”) has expressed its strong opposition to the Bill several times in its statements and opinion papers to date. In such statements and opinion papers, the JFBA has indicated a number of problems regarding the Bill, including the following: (1) the scope of the “specially designated secrets” to be protected is over broad and unclear; (2) it is possible that heads of administrative bodies designate “specially designated secrets” in an arbitrary manner; (3) if the effective 5-year term of the “specially designated secrets” continues to be extended by renewing them every five years, such designation would be extended indefinitely; (4) since the scope of punishment to be meted out concerning whistle-blowing and news gathering activities is excessively broad and the extent of punishment to be imposed is too severe, it violates people’s constitutional human rights, including the freedom of expression, press, and the people’s right to know; (5) there is a risk of a serious violation of privacy when the aptitude assessment system is implemented; (6) since the heads of administrative bodies are to have authority to refuse the submission of “specially designated secrets” even to the Diet by their own judgment, there is a risk that the Diet’s right to investigate national politics may lose its substance, and the supremacy of the Diet may be affected. In the Opinion Paper issued by the JFBA on October 23, 2013, the JFBA made concrete suggestions on how to improve the overall information management system before legislating the special secrets protection law system by: (i) optimizing the information management system; (ii) reviewing the Public Records Management Act; (iii) revising the Access to Government Information Act and the Diet Act, etc.
Even though there have been some changes from the draft of the Bill which was made public on September 26, 2013 to the Bill which was adopted by the Cabinet Meeting today, as described below, a fundamental review of the problems pointed out by the JFBA in its statements was not carried out.
First, regarding the designation of information as secret, it sets forth that “concerning the designation and cancellation of a designation of specially designated secrets and the implementation of aptitude assessment, a standard for implementing unified operation shall be established,” (Article 18-1) and “when such a standard is to be established or amended, … the opinions of experts with deep insights shall be sought and listened to.” (Article 18-2).
Second, regarding the extension of the enforcement period of the designation, “in order to extend the effective period of the designation beyond thirty years in total, … the approval of the Cabinet shall be obtained.” (Article 4-3)
Third, regarding the people’s right to know, etc., “sufficient consideration shall be given in relation to freedom of the press and news gathering which contribute to the people’s right to know” (Article 21-1), and “with reference to news gathering activities of those engaged in the operations of publishing and news reporting, as far as it is recognized to have solely a purpose of public interest and unless it is recognized to have been conducted through a violation of laws or by way of a significantly unjust method, such activities shall be regarded as an act of a justifiable business.” (Article 21-2)
Concerning Article 18, however, what can be decided by listening to the opinions of “experts with deep insights” is limited to only an abstract operational standard, and in reference to the specific individual designation of secrets, there is no function to check such designation, and thereby it remains that the arbitrary designation of secrets can still be made.
Concerning Article 4, even if a Cabinet’s approval is required when the term of the designation of secrets exceeds 30 years, it is anticipated that the Cabinet’s approval would be made merely rubber-stamping the judgment made by the head of the administrative body, who is the authorized designator. Therefore, it has a high risk that the designation becomes permanent.
As to Article 21-1, which stipulates that sufficient consideration shall be given to the freedom of the press and news gathering, this is no more than an abstract provision of advisory, and therefore, there is no guarantee of securing the freedom of the press and news gathering.
Further, with respect to the subjective requirement stipulated in Article 21-2 of having “solely a purpose of public interest”, whether or not there is such a purpose is judged by the investigative side, and thus such concept can be interpreted in an arbitrary manner. Moreover, since the term “by way of a significantly unjust method” is itself highly abstract, it is difficult to predict what kind of act would fall under “by way of a significantly unjust method,” and further, it is possible to be construed in an arbitrary manner. Therefore, even if the court would find, when an indictment is brought, that there was “a purpose of public interest” and judge that “the method used was not a method as being significantly unjust,” the accused would still be subject to investigation under arbitrary interpretations and practices. Therefore, it still has a profoundly chilling effect on news gathering and the freedom of the press.
Furthermore, such provision is not to be applied to persons who do not “engage in the operations of publishing and the media,” such as the general public, civilian activists, and civic journalists, etc. and thus this constitutes unreasonable discrimination against such persons.
Consequently, the Bill still carries a high level of risk even if the above-stated provisions, etc. are added into the Bill.
It is truly regrettable that Cabinet approval was granted on the Bill which still includes the risk of infringing the rights of the public as well as the supremacy of the Diet. What is most required is an urgent improvement of information management as a whole, as the JFBA has long been advocating. Thus, the JFBA strongly opposes the legislation of the Act on the Protection of Specially Designated Secrets under the present condition wherein the Public Records Management Act and the Access to Government Information Act have not been revised so as to improve information management.
October 25, 2013
Japan Federation of Bar Associations