UN Committee Criticizes Japanese Secrecy Law

6 August 2014

As the Japanese government takes steps to implement its Secrecy Law, the United Nations Human Rights Committee has voiced its reservations about the controversial law.

The committee said in a July 23 report covering many topics that it “is concerned that the recently adopted Act on the Protection of Specially Designated Secrets contains a vague and broad definition of the matters that can be classified as secret, general preconditions for classification and sets high criminal penalties that could generate a chilling effect on the activities of journalists and human rights defenders (art. 19).”

The statement says the categories of information that could be classified should be “narrowly defined” and any restriction on the right to seek, receive and impart information should comply “with the principles of legality, proportionality and necessity to prevent a specific and identifiable threat to national security.”

The committee further said that no individual should be punished “for disseminating information of legitimate public interest that does not harm national security.”

Government Implementing Act

The government “will designate the minimum amount of information as secrets for the shortest period of time possible,” according to draft rules recently issued to implement the law.

“The rules will help make sure our handling of secrets will be more objective and transparent,” Prime Minister Shinzo Abe said at a meeting of an advisory panel on information protection, according to a Kyoda News International report.

The draft says the government “will designate the minimum amount of information as secrets for the shortest period of time possible.” The law goes into effect in December.

The Japan Federation of Bar Associations has asked the government to reconsider the law, according to an Al Jazeera article. A group of 43 freelance journalists and other writers have launched a lawsuit against the new secrecy law.

Yoichi Eto, the lawyers’ group representative, is quoted as saying, “This law simply provides new powers to the government officials. It says that they are authorised to do this or that. But it has nothing to say at all about what officials must not do.

The same article cites Lawrence Repeta, a law professor at Meiji University in Tokyo, as critical of the clarity of both the law and the regulation.

Morton Halperin, a drafter of the 2013 Global Principles on National Security and the Right to Information, known as the Tshwane Principles, says the new Japanese law provides no credible third party oversight of the secrecy designation and its declassification systems, no concept that the public interest might sometimes override the need of the government to keep secrets, and no provision in the law that bureaucrats must explain why a particular document should be designated as a special secret, the Al Jazeera article says.

The Open Society Justice Initiative in June asked the United Nations Human Rights Committee to examine the Secrecy Law.

The OSJI submission says the definition of what may properly be designated (or classified) as secret “is vague, posing an unacceptable risk that information of high public interest may be kept secret.” It also comments that “public servants who disclose secrets, even of high public interest, face excessive penalties; the state is not required to prove harm to, or intent to harm, an important interest; and there is no requirement that the court, in assessing guilt or the appropriate penalty, consider the public interest in having access to the information. Finally, the statement objects that “journalists and other members of the public may be prosecuted for publishing secrets even if the information is of high public interest.”

Text of Relevant Portion of UN  Statement

 Act on the Protection of Specially Designated Secrets

  1. The Committee is concerned that the recently adopted Act on the Protection of Specially Designated Secrets contains a vague and broad definition of the matters that can be classified as secret, general preconditions for classification and sets high criminal penalties that could generate a chilling effect on the activities of journalists and human rights defenders (art. 19).

The State party should take all necessary measures to ensure that the Act on the Protection of Specially Designated Secrets and its application conforms to the strict requirements of article 19 of the Covenant, inter alia by guaranteeing that:

(a)        The categories of information that could be classified are narrowly defined and any restriction on the right to seek, receive and impart information complies with the principles of legality, proportionality and necessity to prevent a specific and identifiable threat to national security;

(b)       No individual is punished for disseminating information of legitimate public interest that does not harm national security.

 

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