On October 7th, the government began crafting a bill for a Protection of Secrets Law (himitsuhozenhouan – temporary name) to strengthen penal regulations against civil servants who leak information sensitive to national security or public order. It plans to submit the bill to the Diet in next year’s ordinary session. There is a danger that in seeking information management, the bill might also threaten the public’s “right to know”. Focus has fallen on whether the law will make greater legislative checks or not.
The need for this law has been thoroughly impressed on the ruling Democratic Party in the wake of the release of last year’s incident in the Senkaku Islands, in which a Chinese fishing boat was filmed ramming a Japanese Coast Guard vessel. The government attempted to prevent the video from being released, but it was eventually leaked by “Sengoku38″, the Youtube handle of Masaharu Isshiki, a Coast Guard officer who came across the videos in his unrelated work aboard the Coast Guard vessel Uranami and believed the public had a right to know what was going on.
Isshiki was detained and suspended for a year for a possible violation of the National Civil Service Law, which “stipulates that any government employee who publicizes information learned while on the job is guilty of criminal offense,” before finally asking for a discharge. He was a whistleblower in his own mind: “There is some information that must remain veiled from the public … but in this case, it wasn’t even close to borderline.”
He felt the public had the right to know what the government was trying to keep hidden: “As to whether the video that I released was to be considered confidential or secret, that’s a question I’d like to ask you. … For those of you who have seen the video, do you think that qualifies as something that the government should keep secret?” It was, he said, “in the best interests of the nation as a whole.”
In the end, he was let off the hook, one of the reasons for this was no doubt because the Chinese captain involved was released to China to avoid upsetting relations between the two nations (the captain is certainly worse off one year later compared to the book-toting Isshiki). The official story is that the government decided what should be secret in this case, and the Coast Guard felt otherwise internally and thus the video was available for Isshiki to release – there was no way for the government to have thoroughly punished Isshiki under current legislation, and that has arguably made a Protection of Secrets Law even more desirable within the government.
The Nikkei article continues:
The government launched a full-scale study in light of successive leaks like the release of the Chinese fishing boat collision video off the Senkaku Islands. The government is considering classifying important information concerning national security as “Special secrets” whose release will result in a sentence of “less than 5 years” or “less than 10 years” or impose a fine.
Current legislation like the National Civil Service Law have a general duty of confidentiality with a possible jail time of less than a year. The SDF Law stipulates that the release of information necessarily concealed for defense, “Defense secrets”, carries a sentence of under 5 years.
Special secrets fall into three categories: ‘national security’, ‘diplomacy’ and ‘public security and the maintenance of order.’ Assuming this is “information requiring a high degree of confidentiality,” each ministry will be entrusted with deciding what should be kept as a special secret.
Penalties only apply to government workers with the opportunity to come across secrets in the course of their work, with secondary-knowledge of secrets likely to be excluded from the law. However, the gaining of unauthorized access to secret information by both civil servants and the general public will be subject to provisions within the law.
On the 7th at a meeting of the vice-ministers of all the government ministries, Chief Cabinet Secretary Osamu Fujimura indicated that he wished to properly tackle the issue of how values drive staff behavior (normative consciousness). Over the course of the development of the law, an important consideration will be avoiding binding government institutions with red-tape through overregulation.
Laws governing the handling of secrets, such as Britain’s Official Secrets Act, have the possibility of being spread even further than intended. Around the world, we can see evidence of this tug-of-war between the need to keep secrets and the public’s right to know being played out in debates over Wikileaks, the Iraq War, and the politicization of intelligence. Right now in Japan, that battle is being fought over the Fukushima Dai-Ichi nuclear power plant and the possible collusion between TEPCO and the government. When considering the extent to which the public has a right to know, it is always best to err on the side of caution. Given the Kan administration’s handling of both the Senkakus incident and the nuclear accident, some may be asking whether we can trust his DPJ successor, Prime Minister Noda, with this very difficult task.
A former contributor to World Intelligence (Japan Military Review), James Simpson joined Japan Security Watch in 2011, migrating with his blog Defending Japan. He has a Masters in Security Studies from Aberystwyth University and is currently living in Kawasaki, Japan.
His primary interests include the so-called 'normalization' of Japanese security (i.e. militarization), and the political impact of the abduction issue with North Korea.
James Simpson has 254 post(s) on Japan Security Watch