[KineJapan] Kore-eda, Miyazaki, Takahata, etc. oppose State Secrets Act

[BERRY Paul]

In early December, a group of movie directors  (including Miyazaki, Takahata, Kore-eda) and others who are part of the movie industry formed an association to oppose passage of the state secrets protection bill. (see article 2 below) Many other groups quickly formed as protests arose in cities around Japan in a futile attempt to stop this legislation from becoming law. These efforts failed. The law was passed on Dec. 6th and will go into effect at some point next year. Why were these directors and others such as Oe Kenzaburo, Japanese Nobel-winning scientists, Japanese Catholic Bishops, Japanese Bar Association, and many other groups so opposed to this legislation? 
The first inklings of drastic changes to come came from Deputy Prime Minister Aso who is also the Japanese Finance Minister (former Prime Minister) when in early August he said, "Germany's Weimar Constitution was changed into the Nazi Constitution before anyone knew," he said in comments widely reported by the Japanese media. "It was changed before anyone else noticed. Why don't we learn from that method?" (see article 3 below) Although he claimed these remarks were taken out of context he did not retract the basic idea that the LDP should consider such methods.
Then, over a two-week period starting in late November, the LDP introduced a hitherto unannounced bill for protecting state secrets. The vague wording of the key provisions of this bill will allow for a vast expansion of the designation of government secrets for a 60-year period with provisions for police investigation of violations and prison terms from 5 to 10 years for violations. Please read the editorials inserted below from various Japanese newspapers below to get an idea of how serious these changes in Japan’s legal system are. They appear to be the opening front in implementing Prime Minister Abe’s campaign slogan, “Nihon o torimodosu” (Bring Back Japan) which includes restoring many of the worst features of the Japanese pre-war constitution. The currently adopted state secrets act has features that resemble the notorious Peace Preservation Act that helped establish the so-called thought police during the prewar period.
Exactly how the law will be enforced remains to be seen, but it has already had a chilling effect on the media in Japan since its adoption. 
“Perhaps most important in all of this is the chilling effect that the law would have on people accessing or publishing any sort of information. With the opaque phrasing of the law persons will have no idea as to whether information they are accessing or publishing is in fact a designated secret.  The Japanese Bar Association notes that, under the provisions of the bill, it is entirely plausible that people could be accused and tried without them or their lawyer being told exactly what information they are accused of having revealed. Unsurprisingly, government assurances that persons who accidentally come across or reveal secrets would not be punished are not convincing – and logic indicates that, even if they ended up not being punished, such persons would be subject to investigation.” from a Dec. 7th editorial (see 4 below)

As these issues will become more pronounced after the act goes into effect it is important that the community of people involved in cinema be fully aware of these events and on the look out for the problems that now seem likely to arise. These things should be subject to international debate and becoming better informed about them is the first step, especially as the international news community has not done a good job of covering the quickly occurring changes here in Japanx. I have inserted several relevant articles below, but searching on the net for Japanese sources about them has an even larger diversity of information and commentary on these events.

Paul Berry
Kyoto, Japan

1, The Asahi Shimbun, Dec. 7 editorial after passage of the bill

The Upper House passed legislation on Dec. 6 to protect confidential information concerning national security. Serious thought must be given to the grave implications from the viewpoints of the political system and the Constitution.

Under the new state secrets protection law, the chiefs of ministries and agencies have the power to determine what specific information should be designated as a state secret and whether such confidential information should be disclosed for Diet deliberations or trials.

The law will effectively create a pocket of secrecy within the sphere of administrative activities insulated from scrutiny by the public, the Diet or the judiciary. It will empower the government to determine at its discretion the scope and content of information that should be enveloped by the heavy veil of official secrecy.

In other words, the government has obtained a convenient and powerful tool to limit information disclosure. The scope of state secrets will inevitably expand year after year.

This situation poses a serious threat to the fundamental constitutional principles of popular sovereignty and separation of the three branches of government.

The legislation could eviscerate the most important principles of modern democracy and bring outdated politics back to the nation.

The enactment of the state secrets law amounts to making an “effective revision to the Constitution” without following formal procedures. It can be likened to the Abe administration’s move to enable Japan to exercise its right to collective self-defense through a change in the government’s interpretation of the related provision in the Constitution.

REMOVING SAFEGUARDS FOR DEMOCRACY

The political nature of this legislative initiative becomes even clearer when viewed against the backdrop of the track record of Prime Minister Shinzo Abe during his second tenure in office.

In the first of a series of related steps, the Abe administration replaced the chief of the Cabinet Legislation Bureau, who was opposed to Japan’s exercise of its right to collective self-defense, with a person who supported the idea. It was an attempt to suppress dissenting voices on the issue within the government.

The Abe administration then filled vacancies in public broadcaster NHK’s Board of Governors, which has the power to appoint and to dismiss the broadcaster’s president, with people close to the prime minister. It is a move that deserves to be criticized as a ploy to muzzle the press.

To cap it all, the administration has now succeeded in establishing the state secrets law.

All of this clearly shows the Abe administration is trying to silence its noisy critics and remove, one by one, the safeguards against abuse of power.

The chief justice of the Supreme Court will retire next year. If the Abe administration appoints a person unlikely to take exception to the government’s decisions as the successor, this nation could be hastening down a path toward autocratic government.

When the “twisted Diet,” due to opposition control of the Upper House, caused political gridlock, the nation’s policymaking machinery was bitterly criticized for being unable to make decisions.

As soon as the gridlock disappeared following the ruling coalition’s landslide victory in the July Upper House election, however, the government began to eliminate safeguards for democracy. This is a far more dangerous situation than legislative gridlock.

Where is the government trying to lead the nation in such haste?

The Abe administration appears to be putting greater priority on building a system that allows Japan to cooperate more closely with the United States in fighting wars than on protecting the spirit of the Constitution and the principles of democracy.

The administration’s reasoning seems to go like this: Japan needs to fortify its security alliance with the United States to respond to China’s rising military power. To do so, Japan needs to promise to fight together with the United States when the ally comes under attack. Japan also needs to create an organization that can share vital information closely with the U.S. National Security Council and has a similar name. In addition, Tokyo needs a system that allows it to guarantee to Washington that there will be no leaks of sensitive information provided by its ally.

During Diet debate between party chiefs, Abe said the state secrets law is designed to protect the Japanese people. We are willing to believe him. He was probably not lying.

DANGER OF POWER CONCENTRATION

The question is whether the law will really protect the people.

From the government’s point of view, centralizing power for a quicker decision-making process is a more effective approach to protecting the people than maintaining a system that requires time to explain policies to the public and building a consensus.

But a government that is allowed to monopolize information and use its policymaking power without being restrained by safeguards against abuse can easily go astray, regardless of its intentions.

The government should disclose information, encourage broad public debate on key policy issues and pay serious attention to the voice of the people. The legislative and judicial branches should be able to check and correct mistakes made by the administrative branch. Authorities will inevitably make misguided decisions if they disable this vital system of checks and balances.

There is ample historical evidence of such dangers.

Prewar Japan and Germany are two typical examples of how dangerous leaders can be when they have unrestricted power.

Both countries tightly controlled information available to the public and cracked down on dissenting voices. The rulers of the two nations created systems that enabled them to make policy decisions without going through a due process of legislation.

Nazi Germany established a law that gave the government the power to enact laws as it wished and even ignore the Constitution. Imperial Japan enacted the notorious National Mobilization Law, which based a wide range of powers on discretionary imperial orders issued by the government.

We must not forget what kind of consequences these laws produced for both nations.

DIET, PUBLIC SHOULD RISE TO DEFEND DEMOCRACY

Based on the bitter lessons of history, the postwar Constitution provides for a governing system that ensures a separation of powers. The Constitution defines the Diet as “the highest organ of state power” and “the sole lawmaking organ of the State.”

By enacting the state secrets protections law, the Diet, oblivious to its mission, helped the Abe administration take a big step toward creating an autocratic government. It is an extremely foolish act.

Japan doesn’t need the state secrets protection law. Since the Diet has now enacted the law, it should take the responsibility to quickly repeal it.

If immediately revoking the law is difficult, the Diet should at least act swiftly to take measures to reduce the negative effects of the law.

The Diet should set up its own body to scrutinize the government’s decisions to designate specific information as a state secret for protection under the law. It should also require the government to make records of all such decisions and ensure full information disclosure. The Diet needs to swiftly take these steps.

The public should also ask itself some serious questions.

Things have come to this because we have allowed politicians to hold us in contempt. Many politicians apparently think only a few voters will actually express their views publicly and take part in the political process to protect their sovereignty and their right to know, however important they think these democratic values are.

The politicians are clearly betting that even if the new law provokes an angry response from the public, voters will forget about it by the next election.

As long as we allow politicians to sell us short this way, the situation will not change.

Things will start improving only if the Japanese people make a solid resolution to protect democratic principles they value and demonstrate a commitment to them by protesting continuously against any move to undermine them.

--The Asahi Shimbun, Dec. 7th

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2, Movie industry starts group against state secrets bill

December 04, 2013

By YUKA ORII/ Staff Writer

The movie industry formed a group Dec. 3 to oppose the state secrets protection bill, saying the Abe administration is returning Japan to its dangerous World War II days.

“Based on the reflections of our predecessors, who were forced to support the war against their will, the Japanese movie industry started to walk on the postwar path (back to normalcy),” the group said in a statement.

It added, “We cannot support this bill at all because it could deprive us of the ‘right to know’ and endanger ‘freedom of expression.’”

Film directors Isao Takahata, Yasuo Furuhata and Yoji Yamada were among those who had called for the establishment of “Tokutei Himitsu Hogo Hoan ni Hantaisuru Eigajin no Kai” (Group of movie people who oppose the state secrets protection bill).

“There is no other way except to patiently put up resistance so that our society will not return to the one before and during the war,” Furuhata said.

Takahata said, “We are appalled by the fact that we, the Japanese people, are the ones who created the Abe administration.”

In just four days, the group gained 264 supporters, including film directors Nobuhiko Obayashi, Hayao Miyazaki, Hirokazu Koreeda and Kazuyuki Izutsu, actresses Sayuri Yoshinaga and Shinobu Otake, and scriptwriters Taichi Yamada and James Miki.

Cinematographers, movie theater operators, film critics and about 60 fans joined the group.

Criticism was also directed at the way the ruling coalition has been trying to rush the bill through the Diet before the current session ends on Dec. 6.

“I am angered at the way the public hearing was held obviously just for show,” film director Masato Harada said.
By YUKA ORII/ Staff Writer

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3. www.cnn.com/2013/08/02/world/asia/japan-politician-nazi-comment

Japanese government minister's Nazi remarks cause furor
By Jethro Mullen, CNN
August 2, 2013 -- Updated 1206 GMT (2006 HKT)
(CNN) -- Japan's deputy prime minister stirred controversy this week by appearing to suggest that the government could learn from the way that Nazi Germany changed its constitution.

The remarks by Taro Aso, who is also the Japanese finance minister, provoked criticism from Japan's neighbors and a Jewish organization in the United States.

Aso, a former prime minister who has slipped up with verbal gaffes in the past, retracted the comments later in the week but refused to apologize for them or resign, saying they had been taken out of context.

Amid persistent talk in Japan about revising the country's pacifist post-war constitution, Aso set off the controversy at a seminar Monday, in which he said that discussions over constitutional changes should be carried out calmly.

"Germany's Weimar Constitution was changed into the Nazi Constitution before anyone knew," he said in comments widely reported by the Japanese media. "It was changed before anyone else noticed. Why don't we learn from that method?"

Aso added: "I have no intention of denying democracy. Again, I repeat that we should not decide [constitutional revisions] in a frenzy."

In 1933, Adolf Hitler's National Socialists turned the democratic Weimar Republic into a dictatorship using "a combination of legal procedure, persuasion, and terror," according to the U.S. Library of Congress.

Hitler used a fire that burned down the parliament building as a pretext to suppress the opposition through an emergency clause in the constitution. He then pushed through the Enabling Act, which allowed him to govern without parliament and vastly extend the Nazis' grip on power.

Words that hurt

Aso's apparent reference to those changes drew expressions of concern from the governments of China and South Korea, two countries that suffered heavily under Japanese imperial aggression during World War II, a conflict in which Japan was allied with Nazi Germany.

Beijing and Seoul are already wary of Japan's hawkish prime minister, Shinzo Abe. His campaign platform for elections last year included measures aimed at restoring Japanese national pride such as revising the constitution to give the country's self-defense forces the status of a regular army.

Abe's party now has control of both houses of parliament. But it remains unclear if he will take on the difficult, controversial challenge of constitutional change, which would require a two-thirds majority in both chambers.

Hong Lei, a spokesman for the Chinese foreign ministry, said Wednesday that Aso's comments mean that other countries need to step up their vigilance over the direction in which Japan is headed.

China and Japan are locked in a tense territorial dispute over a set of small, uninhabited islands in the East China Sea that has fueled nationalist sentiments in on both sides.

South Korea, meanwhile, called for "prudence" from Japanese political leaders.

"Such comments definitely hurt a lot of people," Cho Tai-young, a foreign ministry spokesman, said Tuesday.

And the Simon Wiesenthal Center, a Jewish human rights organization based in Los Angeles, demanded that Aso immediately clarify his remarks.

"What 'techniques' from the Nazis' governance are worth learning — how to stealthily cripple democracy?" asked Rabbi Abraham Cooper, an associate dean at the center.

"The only lessons on governance that the world should draw from the Nazi Third Reich is how those in positions of power should not behave," Cooper said in a statement Tuesday.

'Great misunderstandings'

Aso responded Thursday to the criticism over his comments, which also came from opposition lawmakers in Japan, saying he regretted that the remarks had "caused great misunderstandings despite my true intentions."

He said that he had referred to the Nazi takeover of power as a "bad example" of constitutional revision because changes were forced through "in a commotion." They should be done through calm debates instead.

"I believe it is obvious that I feel extremely negatively about Nazi Germany, if you consider the entire context," he said. "However, since these remarks have caused serious misunderstandings, I would like to retract them."

Japanese Cabinet Secretary Yoshihide Suga told a news conference the same day that "the Abe administration definitely does not view Nazi Germany positively and I am sure Vice Prime Minister Aso himself does not either."

It's not the first time Aso's words have gotten him into hot water. At a meeting about social security reform and healthcare costs in January, he caused offense by suggesting it would be best for people on life support to "die quickly."

"Aso's comment about Hitler and the implication that his example should be followed are utterly unacceptable," the Asahi Shimbun, a daily newspaper, said in an editorial Friday. " The remark is not something that Aso can get away with by simply retracting it."

CNN's Yoko Wakatsuki and journalist Saori Ibuki contributed to this report.

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4, 
As if it ever needed repeating, the people of Japan were once again treated to a reminder of how secretive and arbitrary their government can be during the nuclear disaster in Fukushima 2011. Government foot-dragging and reluctance to divulge information meant that people remained exposed to high doses of radiation for over a month after the meltdown with potentially grave health consequences. Now, what is easily the most right wing government Japan has seen in decades has forced through parliament a bill to classify “special secrets” that would essentially give the executive carte blanche to withhold information on a massive scale, not seen since the period of militarism directly leading up to, and during, World War 2.

The law, known as the Designated Secrets Bill, was hurriedly rammed throughthe more powerful lower house on 26 November, and then passed through the upper house in equally speedy fashion on 6 December. It gives unrestricted power to the executive to designate a broad range of information as national secrets. There are no effective checks or balances, no truly meaningful opportunity for the involvement of any independent body, and no effective way to ensure that the executive is not abusing its power. Only the barest of outlines of information regarding what sort of information has even been designated as secret will be disclosed to the public. The bill would violate the right of people’s right to access information, severely punish whistleblowers, and have a chilling effect on journalism, civil society organizations, and the actions of concerned citizens.

The government has repeated the mantra that the bill is necessary because Japan is a “heaven for spies” due to a lack of espionage and state secrets legal infrastructure. They would have the people believe that the government lacks the power to keep information confidential, and that Tokyo is full of foreign agents who freely collect sensitive secrets. Nothing could be further from the truth – the government already designates a wide range of information as confidential –410,000 pieces of information have been designated so since a sweeping government policy was implemented on this in 2009.

In addition, in response to a question in parliament, Prime Minister Abe admitted that the government was aware of five cases of “leaks of important information by civil servants” over the past fifteen years. Five cases over fifteen years can hardly be described as a “heaven”. The truth, as even the government admits, is that this bill is intrinsically connected with another bill adopted by parliament in November, establishing a National Security Council much along the lines of the US body by the same name. Indeed, the Secrets bill specifically provides for the sharing of designated secrets with foreign governments, who are apparently more trustworthy than Japan’s own people.
Constitutional infringement

There are four categories of information listed in the bill that could potentially qualify for designation as a secret – defense, diplomacy, “designated dangerous activities”, and prevention of terrorism – but they are worded in an extremely broad manner. Seemingly any kind of information related to defense could qualify, as well as any “important security related information” in the area of foreign relations, any information related to official efforts in the area of counter terrorism, and any information related to “activities potentially harmful to national security”. The possible designations of particular information as ‘secret’ are essentially infinite; though there is a principled maximum period of sixty years (already extremely long) stipulated in the amended bill, there are also categories of information – almost equally sweeping – which it is possible to designate secret with no time limit. The role envisioned for parliament is extremely limited, to the extent that it would most probably be meaningless.

The bill does state that, in applying the law, the government should “fully take into account” journalistic reporting “aimed at ensuring the peoples’ right to access information”. These provisions are “vague” to say the least, and appear to grant the government leeway to decide which reporting is “aimed at ensuring” this right. But punishments for the revealing of secrets are severe – up to ten years imprisonment for civil servants or persons subcontractors dealing with secrets. Persons who obtain secrets through illegal means are also subject to up to ten years imprisonment, and persons who “incite” the revealing of secrets are subject to up to five years imprisonment. Persons who reveal secrets through negligence can also be subject to imprisonment, as are persons who “incite” or conspire to divulge secrets.

It is worth pointing out that the right to access information is not only a vital element of the right to freedom of expression, but also a fundamental human right guaranteed by the Japanese constitution. Article 21 states that “freedom of…speech, press, and all other forms of expression are guaranteed” and, in accordance with developments in international law, this article has been interpreted by the Japanese courts to include the right to access information. The same article also states that the government must “refrain from violating fundamental human rights in an unreasonable manner” in applying the law, begging the question as to what “unreasonable” means in this new environment.

Even worse, article 21 goes on to say that reporting by the media will not be punished “insofar as those activities are aimed solely at ensuring the public interest and are not based on illegal or clearly unreasonable methods”. There is no definition of what the “public interest” means in this context, and just how the government will ascertain this. The government has even stated that some bloggers and other social media activists may not fall under the definition of “media” in this article, indicating that even the above pathetic safeguards would not apply.

As one could imagine, public outcry regarding the bill has been intense with near-daily demonstrations and criticism from human rights organizations, including the Japanese Bar Association, former prominent conservative MPs, academic societies, journalist societies, and prefectural and local councils. Unusually for a country that is used to being under the radar of international scrutiny, the bill was also the target of harsh criticism from human rights actors in the United Nations. The UN Human Rights Council Special Rapporteur on Freedom of Expression together with the Special Rapporteur on the Right to Health issued a statement criticizing the sweeping provisions of the bill, and the lack of protection for whistle blowers. The UN High Commissioner for Human Rights also expressed similar concerns.

Government responses to these concerns have been a shining example of evasion, vagueness, and a condescending ‘shut up and trust us’ mentality – indeed, the fact that the government opened the bill to public comment for only two weeks, as opposed to the normal practice of a full month, shows the contempt in which it holds views it does not agree with. One NGO filed a request for the minutes of the meetings of a government panel that had discussed the provisions of the bill – minutes that date back to 2008. In an insult to the notion of government accountability, the documents the NGO was provided with were almost completely redacted, i.e. blacked out.
A new chilling effect

In one telling response to the obvious question of what would entail a “clearly unreasonable method” of reporting, Minister Masako Mori, the female Cabinet member charged by Prime Minister Abe to steer the bill through parliament seemingly for no reason other than placing a woman in front of the cameras would give the bill a ‘soft’ image, gave the example of the infamous Nishiyama case of 1972. Takichi Nishiyama, a former journalist for Mainichi Shimbun, a major Japanese broadsheet, was arrested for obtaining information from a Japanese Foreign Ministry secretary (with whom, it later came to light, he had been having an affair) regarding a secret agreement between Japan and the US surrounding the return of Okinawa to Japanese sovereignty. Though the agreement that had been made public by the two governments had stated that certain expenses totaling USD 4 million would be paid by the US, this was an outright lie, and the secret agreement specified that the costs would be footed by the Japanese.

For his efforts in exposing government deception of the people, Nishiyama was convicted in 1978 of inciting a civil servant to reveal confidential information. 30 years later, declassified US government documents confirmed Nishiyama’s allegations – and yet his name is used by the government as a good example of ‘bad’ journalism. Tellingly, Mori has declared that subjects of intense public debate, such as the Trans-Pacific Partnership (TPP) economic agreement currently being negotiated behind closed doors with the United States and other countries, could be designated as secrets. And government reassurances have been unable to quell fears that with such broad provisions in the bill, important information regarding nuclear safety could be designated as secret as well.

Perhaps most important in all of this is the chilling effect that the law would have on people accessing or publishing any sort of information. With the opaque phrasing of the law persons will have no idea as to whether information they are accessing or publishing is in fact a designated secret.  The Japanese Bar Association notes that, under the provisions of the bill, it is entirely plausible that people could be accused and tried without them or their lawyer being told exactly what information they are accused of having revealed. Unsurprisingly, government assurances that persons who accidentally come across or reveal secrets would not be punished are not convincing – and logic indicates that, even if they ended up not being punished, such persons would be subject to investigation.

In the early hours of 5 December, the government announced in response to mounting pressure that it would create two ‘independent’ bodies to oversee implementation of the law and ensure that there was no abuse. However, of these two bodies, only one is truly independent – a panel of legal experts which will advise the PM in creating guidelines regarding the designation of secrets, and which will receive an annual report on implementation of the law. However, it appears that the PM will only provide this panel with a simple outline stating the number of pieces of information that had been designated secret by category. Beyond that, there is no clarity as to how this panel would operate, and how much power it would actually have. It would be child’s play for the government to appoint a panel of government cronies to rubber stamp a one page note.

Calling the other body to be created “independent” is an insult to one’s intelligence. The “oversight committee for information retention” will monitor application of the law and ensure that there is no abuse, and is clearly the more powerful body of the two. However, it will be made up of undersecretaries (the highest ranking civil servants) from the Foreign and Defence Ministries – the two ministries that will undoubtedly be designating the largest number of secrets. Unsurprisingly, no one in Japan expects any kind of serious oversight from this body.

Many opposed to the bill have pointed out strikingly similar language in legislation from darker times, in particular the infamous National Defence and Public Security Act of 1941, which was used by the government to jail opponents of the war effort. The Japanese experience from those days is that government secrets lead to more government secrets, and then to war. To use a phrase the generation that remembers the 1930s often uses to describe the creeping nature of militarism – the jackboots come closer and closer.

This article was originally posted on 10 Dec 2013 at opendemocracy.net.

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