SNA (Tokyo) — Up to ten years in prison for leakers? Up to five years in prison for investigative journalists? No protection for whistleblowers? No clear standards for prosecution? This is not some dark Orwellian fantasy, but rather a law that was passed by the Shinzo Abe administration in December 2013. Professor Lawrence Repeta of Meiji University gives a lucid and revealing account of the Japanese government’s war against transparency and political accountability.

Lawrence Repeta: This new law that was passed in December—the biggest change that it caused was imposing a much larger criminal penalty against, mainly government officials, but anyone who would release information that has been designated a secret. A government official or someone else who releases designated information may be subject to up to ten years of imprisonment. So, there will clearly be an effect. There will obviously be an effect on any government official who thinks about the kinds of information he can talk about when he’s meeting with reporters or when he otherwise is discussing government actions or government policy. This law is a threat to officials who may decide to release information that may be designated. There is no whistleblower protection provision provided. For example, if an official is exposing improper activities, if the official is exposing bribery or some other form of improper action, it won’t matter. The law simply says if there is a disclosure of designated information, then that’s violation of the law. Under Japan’s law, there’s no requirement that the government, in a prosecution, show that there’s any damage to national interests. There’s no protection provided when a person is acting in a public interest. There’s no protection provided for journalists when prosecutors make the decision that they’re acting improperly.

The law also provides up the five years imprisonment for someone who may induce the release of designated information and, of course, the very job of the investigative journalist is to dig—to persuade sources of information to disclose information which is of great public interest. Under this law, journalists may potentially face up to five years imprisonment if they report on a story that relies on some information that has been designated as secret. In the United States, we often say that no journalist has ever gone to jail for reporting a government secret and of course we talk about the Pentagon Papers case and we talk about other famous cases in American history. In Japan, there’s only one important Supreme Court decision related to this problem. It’s called the Nishiyama decision. In that case, the Supreme Court of Japan upheld a conviction of a reporter from, at that time, Japan’s biggest newspaper, the Mainichi Shinbun, for reporting, actually disclosing, government lies related to the return of Okinawa to Japan. That is the only relevant press event that we have from the Japanese courts on the relationship between the constitution guarantee of reporting free speech and the government’s legal authority to maintain secrets.

The action by the Supreme Court opens the question of in what cases will the courts decide that the actions of a reporter are improper. If we think about a very famous case recently from England, we had the newspaper where the reporters were tapping the cell phones. They were violating the privacy of the users of cell phones to gather hot information based on the story. We think they were reporting stories of public interest, but they were not only acting improperly, but they were actually breaking the law. I think most of us would agree that, even though the reporters are protected by the freedom of the press and the right of free speech, they are not thereby empowered to take actions like that that cause serious breaches of law. In Japan’s case, if we look at the statue that was passed in 2013, we have some very elastic language in the statute that says that the freedom of reporting will be recognized if its not inappropriate. We don’t have any definition of what may be appropriate or may not be appropriate, so we’ll rely on future prosecutors to decide when they’ve uncovered a case and they think that some improper activity has taken place, which violates the law. When they think about that, the only precedent they have to look to is the [Takichi] Nishiyama case.

The people rely on journalists to investigate stories, to report, to provide information. Almost all of us rely very heavily on the news media to learn about the actions of government. To the extent journalists are investigating stories and they come into contact with information that may have been designated secret, and of course the reporter won’t know. The reporter, as part of his job, will be interviewing government officials, former government officials, others who have access to information and will be trying to uncover stories that are of public interest. In the course of that process, if a reporter bumps into information that’s been designated secret, then potentially that reporter could be prosecuted.

If we don’t have clarity in the regulations, if we don’t have clarity in the law, then we don’t know what is the extent of the government’s power. We don’t know how government agencies will use that power, to what degree, to what extent, what range of information may be covered. Keep in mind, this problem is not unique to Japan. We have had a very serious problem in the United States for decades. Anyone who has analyzed the US system has said that the most serious problem we have is over classification. There’s just too much information designated a secret. To the extent information is designated a secret, it means that people can’t know about it. It’s hidden. The government is acting based on information, it’s making decisions, it’s taking actions that we don’t even know about. If we have a democratic government. If we believe that people really are sovereign and they have a right to know about what government is doing in their name, then when we think about the kinds of information that should be maintained a secret, we have to think very carefully about what the rules are that result in the secrecy designation, at what time information that was secret should be released, what procedures may exist for government officials or individual people or anyone else to challenge those secrecy designations, and so on.

The Tshwane Principles were adopted in June of 2013 following a process of about two years, which involved former government officials, academic experts, and NGOs from around the world. There were several meetings held around the world. There was long discussion of individual principles and they were adopted in June of 2013. One of my biggest complaints about Japan’s parliamentary procedure was that they didn’t consider the Tshwane Principles at all. It was as if they did not exist.

If we think about the United States, there certainly is a well established procedure and there are government agencies who are really charged with declassifying information. Various presidents have issued executive orders which have promoted a process of taking former secrets, declassifying them, and making them available to the public. There’s even a procedure that allows individuals to identify specific types of information and request declassification. In fact, the data shows most of those requests are honored. I haven’t investigated this carefully, but I assume most of these requests are filed by historians and researchers who are doing research in the area, and, as I said, most of these requests are honored and the information is disclosed. Japan has no history of any such procedure. There are no institutions that have been established that are charged with declassifying secret information. There is not a significant community of historians and researchers who are experienced in ferreting out this kind of information and who have had the benefit of some formal procedure. There are not a series of court decisions that have addressed these kinds of issues. You think this entire infrastructure with how to handle the information, how to handle declassification, and create a process so that information will be released—it just imply does not exist.

The experience we’ve most recently had, which is most instructive, concerns a revision to the Self Defense Forces Act in 2001. That revision to the law created a new category of secrets called “defense secrets.” According to reported information over a period of several years in the mid-2000s, there were tens of thousands of designations of information as “defense secrets.” If we ask, what happened to those secrets after a certain period of time elapsed, according to published reports, there was only one example of a defense secret that was actually declassified and released. For overwhelming majority of those secrets, when the period of secrecy came to an end were simply destroyed, so there is no historical record of what happened, what information was a designated secret. It’s all gone.

Copies of the secret documents that were revealed by Mr. Nishiyama are available for public viewing in the national archives of the United States. The so-called NARA (National Archives and Records Administration) in Washington DC has copies of that information. It’s been discovered by Japanese researchers. They fly to the United States, they do their research in American archives and they discover all kinds of information that’s not available in Japan. Why is it not available in Japan? There are several reasons. First, a lot of information has simply been destroyed. We know that vast amounts of information was destroyed at the end of the war. We know that vast amounts of information was destroyed in the years leading up to 2001. 2001 was the year that Japan’s Freedom of Information Act [Law Concerning Access to Information Held by Administrative Organs] came into effect. We know that many many ministries destroyed large volumes of material in the lead-up. Prior to 2001, there was no legal right for anyone to request information from the government. To prepare for that new law, they destroyed lots of information. We know government archives are valuable. We know that researchers and historians absolutely need them. In Japan’s case, a lot of information has been destroyed, but not all of it has. We do know, for example, that Japanese historians have uncovered government documents related to the creation and operation of the comfort women system. That is one example of many that have been uncovered because there still is information remaining in the Japanese archives.

We lawyers, of course, always think about the Constitution. The Constitution is the supreme law of the land. If we think about the American Constitution, it’s very old. It’s 220 years old. We treasure that constitution and we all study it and we argue about what it might mean, but there it is. It’s been modified many ways, but the fundamental provisions—the guarantees of individual rights—have been unchanged. The wording in that constitution has essentially been unchanged. To the extent it’s been changed, it’s been expanded. Then if we look at Japan, of course the history of Japan’s democratic Constitution is rather short. It came into effect in 1947. Now, it’s 2014. The prime minister of Japan is a man named Abe Shinzo. Mr. Abe, throughout his career, has been a very strong advocate for severely changing that constitution to dramatically weaken any protections for individual rights. Mr. Abe and the Liberal Democratic Party have never advocated greater government transparency. Japan does have a freedom of information law, but it’s a very weak law and the Liberal Democratic Party has always opposed expanding it. Most recently, if we think about global comparisons, Mr. Obama, after he became president, became the prime mover of a global initiative called the Open Government Partnership. Today, the Open Government Partnership has been joined by more than sixty countries, including most of the major democracies of the world. The Open Government Partnership is an agreement among governments to promote more openness, to expose more information to the people, and to provide more opportunities for people to participate in developing government policy. Japan’s government has absolutely refused to take part in the Open Government Partnership. It has absolutely refused to even begin to prepare to seriously consider participating in the Open Government Partnership.

The 2013 secrecy law says if the information has been designated as a secret, then release of that information is a crime. Was it properly designated a secret? Would the release of that information actually endanger national security? Those questions are not relevant. The only question under the law is, was it labeled a secret? If it was labeled a secret and you released it, you committed a crime. There is no protection for whistleblowers who may be acting in the public interest.

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