The coalition government and some of the opposition parties enacted high-handedly a controversial law, Act on Protection of Specified Secrets on 6th of December. Since then many civic groups across the nation have waged protest activities, called ‘Action on the 6th Day’. Meanwhile, lawmakers discuss setting up a supervising organ in the Diet. Such a body, however, is a fig leaf to cover up evils of the state power.


SCRAPPING LAW IS SOLE SOLUTION AS NEW PANEL MAY NOT WORK


On December 6, 2013, four parties, ruling parties of the Liberal Democratic Party (LDP) and New Komeito and the opposition, Nippon-ishin-no-kai (=Restoration Party) and the Minna-no-to (=Your Party), favored the controversial Act on Protection of Specified Secrets. They agreed on a decision to establish a panel within the Diet that may analyze and inspect classified information. Project teams in the LDP and Komeito, respectively, have begun discussing how to organize a new body, following the decision. Reportedly, the LDP maintains the machinery will not be authorized to judge confidentiality, while the partner insists it should be entitled to do so.


Executive branch decides whether it should release or not


The original bill specified that directors of administrative organizations ‘can release’ specified secrets on the pretext of a secret meeting of the Diet. But the text was modified. The new version says that the same person ‘shall release’. Confidential information will be provided as an obligation instead of an arbitrary release.


As for a scheme to protect such classified information, originally, it is dealt with by an ordinance before the amendment, but afterwards, the Diet is to take initiative to decide. That is, relatively, an improvement.


However, as far as the structure in question is concerned, Director of an administrative body who is entitled to classify information as specified secrets makes his/her judgment before presenting it to the legislative branch. The scheme remains entirely the same. To provide or not to provide ? a decision relies on the director. The Diet does not decide. It can request administrative bodies to provide, but it is Director of each executive branch that designates confidentiality before presentation.


Directors, however, cannot unconditionally provide secrets. The law has a clause which says ‘information must not be provided if it may cause extraordinary damages to the nation’s security’. It is, however, the director of each administrative body that judges whether such information may adversely affect national security. If data relate to national defense, Minister of Defense is the director. If the Diet criticizes the minister, the information will be blocked.


Now let’s look at leakage. If a person leaks provided secrets, he/she may be punished even if he/she is a lawmaker. The law stipulates a harsh penalty, five years of imprisonment with hard labor. A Diet member is not allowed to use supplied information as he/she wants because the lawmaker is subjected to penalty clauses and obliged to keep it confidential. His/her right to investigate state affairs will be tremendously infringed.


Constitution provides that a parliamentary member shall not be responsible for his comments uttered outside the Diet. Sufficient debates have not apparently been made on relations between leak of secrets and the constitutional exemption clause. If the legislation shuts up freedom of speech of parliamentary members, it violates the Constitution to be invalid.


Inspection panel will not work properly


A panel to be established within the Diet may be or can be improved. But various factors will restrict it. It is not certain that the organization may inspect and check effectively.


It is important to see how the Diet’s deliberations will go. However, a practical, sole solution is to scrap it, judging from nature of the law.


March 25, 2014