“Japan is a paradise for spies,” said Stanislav Levchenko, a former Soviet KGB secret agent, after defecting to the U.S. in 1979. He goes on to say that spying in Japan was “very easy” because there was “no legislation punishing divulging secret information.”
Japan’s new ‘Secrecy Law’, which was established on December 13, may change the situation, tightening the control on secret information. Actually, the main purpose of the law is, according to Yuriko Koike, a former Minister of Defense, to “shutter spy’s paradise.”
I am a supporter of the new Secrecy Law, because it will remedy problems concerning the existing law. The main problems of current legislation are threefold: the lightness of punishment, the lack of definition about what kinds of information is regarded as secret, and the narrowness of subject.
The existing law, the National Public Service Act, stipulates that if any official divulges state secrets, they will be punished by imprisonment up to one year, or by a fine of up to 500,000 yen (approx. US$4,800). Compared to other countries’ law for protecting secrets, the punishment is rather light, and thus, weaker as deterrence. For example, the maximum punishment for leaking secret information in the U.S. is capital punishment. In Germany, the punishment for leaking secret information is more than one year of imprisonment, and the maximum sentence is life-imprisonment. In France’s case, any person leaking secret information will face the maximum 15 years of imprisonment or the fine of up to 22,000 euros ($30,000).
As for the lack of definition, currently there is no clear definition on what is ‘secret’ in the Act, and thus officials can arbitrarily designate any document as secrets. Ken Kotani, a professor of intelligence at the National Institute for Defense Studies in Japan, indicates that “since there is no clear rule on what kinds of information should be secret, there is a lot of room for officials’ discretional interpretation.”
Furthermore, the current Act is applied just to officials, not to politicians, which means that there is currently no legislation on restricting politicians from leaking secrets. Here is an example: At a press conference in September 2001, Makiko Tanaka, the then Minister of Foreign Affairs, leaked the evacuation places of the U.S. president in case of emergency, which was of course top-secret. But due to the lack of legislation in Japan, she was not punished for her act, which, understandably, infuriated the U.S. and degraded the credibility of Japan for keeping secrets.
The new Secrecy Law addresses these problems. First, the maximum imprisonment will be extended to 10 years, and the fine to 10 million yen ($95,600). Second, it has a clearer rule on secrets; the object of secret is categorized into four items – defense, diplomacy, malignant actions (i.e., spying) and terrorism – and they are further divided into 23 subcategories. Third, the new law will punish politicians as well as officials for leaking. Thus, the new Secrecy Law will have a stronger deterrent effect on leaking information by politicians and officials, and leave less room for officials’ arbitrary interpretation.
Meanwhile, I am aware that the establishment of the Secrecy Law has some controversial aspects too. First, the legislation process was conducted too hastily without heeding to opposition within the Diet and explaining to ordinary people. Incoherent remarks of politicians on the definition of terms and on the contents of punishment also exacerbated critics’ concern that the detail of the law had not been ironed out enough. The contents of law itself had been kept secret just before the legislation was passed through the House of Representatives, which aggravated people’s anxiety. I admit that the Liberal Democratic Party (LDP), the current ruling party, could have done better in handling the situation.
Now the government has published a leaflet and has given several interviews to explain the contents of the law, ensuring, for example, that ordinary people would not be punished by the law. These kinds of explanations should have been given before the establishment of the law, but at least it is better than nothing. I hope the government will continue to conduct several measures to enhance the transparency of the law.
Second, critics point out that the definition of secret in the law is too wide and too vague, which politicians and officials could interpret arbitrarily, and could violate the freedom of press and people’s ‘right to know’. Although it is true that there is still some room for politicians and officials to interpret arbitrarily, such room is, as discussed above, actually more limited than the existing system. Moreover, on December 2 the government announced that they are going to establish a ‘third-party organization’ to check the operation on the law, and to ensure that the people’s right to know will be guarded. The detail of its structure and function will be specified by a government ordinance before the enforcement of the law, said Minister Mori. Also, the law itself specifies that people’s right to know must not be violated.
My biggest concern, however, is the nature of the ‘third-party organization’ that monitors the operation. Minister Mori is vague on this point, saying that “we will consider whether the third-party organization should be independent of government or not.” If the third-party organization is put under a government agency, it is doubtful that such organization can really function as a ‘third’ organization to check the government’s operation on the law. It will also arouse the anxiety of the people. It should be an independent organization placed outside government overview, and some intellectuals should be included in the organization.
Although the way the government established the law is far from perfect, overall it will be beneficial for Japan’s national security. The details of operation and the third-party organization will be discussed in the next Diet session, which starts in January 2014. Through the process, the government should mollify the anxiety of the people by establishing a system that will ensure the prevention of the abuse of the law, as well as of leaking vital information.
[featured image via Shutterstock]
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