Guest article by Yukiko Miki, Chairperson, Access-info Clearinghouse Japan
A crisis of democracy
A deep sense of a crisis of democracy is widely shared among Japan’s civil society members. The actions and rhetoric of the current administration threaten basic freedoms. Under these conditions, Japan’s constitutional democracy is not secure. In this contribution to CIVICUS’ reimagining democracy report, I will provide some examples that illustrate Japan’s crisis of democracy and show how civil society groups have used the tools of democratic governance to demand accountability and seek to protect fundamental rights.
During the past five years, a series of new laws have strengthened the government’s authority in the fields of national security and law enforcement, with little regard for the protection of civil liberties and individual rights. The first of these laws, the Specially Designated Secrets Act, adopted in 2013, expanded the government’s authority to label a wide range of information as secret and increased criminal penalties against government officials and anyone else, including journalists, who obtains secret information with the purpose of harming national security.
The administration then made a cabinet decision that caused a major shift in national security policy. This included changing the interpretation of the Constitution about the right to self-defence and expanding the capacity of activities of Japan’s self-defence force abroad. In 2015, the Diet (Japan’s national parliament) passed legislation that enshrines this policy change in national law.
In 2016, the power of law enforcement agencies to access personal information and conduct wiretapping was expanded by an amendment to existing laws. In 2017, a new statute created the crime of conspiracy. Prior to this statute, Japan’s criminal code punished only criminal acts, rather than thoughts or discussions of potential acts that have not occurred. The government argued that the new law was needed as a countermeasure to terrorism.
Civil society organisations (CSOs) have consistently opposed all these measures as threats to civil liberties. But there has been little opportunity for public participation in the policy-making process. Moreover, even when specific problems with proposed bills were revealed after the government had submitted them to the Diet, the ruling parties, which hold commanding majorities in both houses of the Diet, have simply disregarded criticisms and forced their bills into law.
Poor independent oversight
A related problem is the lack of independent oversight bodies or other measures to keep the government accountable. The failure to create such mechanisms is especially worrisome because of the government’s expanded authority to designate information as secret. In other words, there is a lack of means to ensure democratic control over administrative information and the administrative process.
The nature of the policy-making process has revealed the administration's and ruling party's tendencies of intolerance toward citizen activists, opposition parties and mass media who oppose government policies. This attitude can be described as one of unilateral self-justification. The administration and ruling party tend to avoid open discussion of critical views and instead just emphasise their own positions as correct. In addition, government spokespeople frequently attack individuals and news organisations who oppose or criticise government policy and also attack opposition political parties’ participation in Diet affairs.
Several cases arose in 2017 that show shocking abuses of power. The response of Prime Minister Shinzō Abe’s administration’s to these cases displays its tendency to conceal information and resist any meaningful oversight. In an attempt to negate criticisms, government officials concealed information, destroyed some documents and forged others. When questioned about these acts, they pleaded forgetfulness until their memories revived after evidence appeared.
Cronyism: the Moritomo Gakuen Case
The Moritomo Gakuen case concerns the sale of state-owned land to a school corporation connected to the Prime Minister’s family at less than 20 per cent of the market price. This privately-owned school teaches a reactionary curriculum and has developed relationships with very nationalistic politicians. The questionable transaction took place as Moritomo Gakuen planned to establish a new elementary school in which the wife of the Prime Minister, Akie Abe, would take office as honorary principal.
In an effort to obtain state-owned land with an extraordinarily discounted price for the elementary school, Moritomo Gakuen asked an influential parliamentarian and Akie Abe to exert their influence on the Ministry of Finance (MOF) to obtain the big discount. At an early stage of the negotiation, Moritomo Gakuen brought up its relationship with Akie Abe in order to pressure the Ministry. At first MOF did not agree to the requested discount, but its changed its position after Moritomo Gakuen claimed it had found a large amount of waste buried underground in the state-owned land. Accepting this claim, MOF granted the sharply discounted price.
Initially, the sales price itself was kept secret. It was revealed only after a member of the local city council filed a formal request seeking disclosure. His request was denied, so he filed a suit against MOF under the national information disclosure law. MOF disclosed the price after the suit was filed, but revealed nothing about the negotiation process.
Meanwhile, reporters at The Asahi Shimbun, one of Japan’s largest national newspapers and a frequent target of Abe administration attacks, had already started to cover the Moritomo Gakuen story. A scoop published by the Asahi on 10 February 2017 attracted nationwide attention. Key issues of interest were first, how the unusual discounts were made, and second, whether there are any records that documented the negotiation process.
On 17 February 2017, Prime Minister Abe stated before the Diet that if it were shown that he or his wife were involved in the case, he would resign both the office of prime minister and his seat as a member of the House of Representatives. On 24 February 2017, a MOF official testified before a Diet committee that records concerning the negotiation process were destroyed soon after the conclusion of the contract of sale. While the Prime Minister and the Minister of Finance argued that the contract was appropriate, MOF officials claimed they were unable to respond to specific questions regarding the negotiation process because the record had been destroyed. In response to demands from opposition party members of the Diet, some documents were disclosed, but these documents did not explain the reason for the extraordinary discount.
Members of opposition parties, news media and CSOs continued to pursue investigations of the Moritomo Gakuen transaction because the government could not show evidence to explain its actions. Month after month, criticism of the government’s lack of transparency continued to grow. For their part, the administration and ruling party politicians insisted that the contract was appropriate and it was time to move on. Neither the Prime Minister nor the Minister of Finance ever ordered a reasonable investigation to clarify the whole picture. Moreover, they sometimes labelled allegations from the news media, opposition party politicians and civil society members as ‘fake news’ and untrue.
Then, on 2 March 2018, the situation changed dramatically. The Asahi Shimbun reported allegations that MOF officials had tampered with documents such as the records of contract negotiations and had deleted some parts, including the names of the Prime Minister's wife and some politicians and the actions they had taken. MOF officials confirmed that the report was true, officially admitting to this tampering on 14 March 2018 and also identifying specific modifications. It was discovered that MOF officials had tampered with about 100 pages of documents. Then they had submitted the modified documents to opposition party politicians and the Diet.
Next, MOF officials admitted that some records concerning the negotiation process that they had claimed to have destroyed were still in existence. They made those documents public and released the results of their investigation on tampering and concealing documents on 4 June 2018. According to their report, MOF started to discuss falsification of documents after the Prime Minister’s statement to the Diet on 17 February 2017, and to destroy negotiation records after the statement of MOF's executive to the Diet on 24 February 2017. It was revealed that false statements were repeatedly made and false documents were submitted for Diet deliberations.
What are the key issues related to democratic governance?
This case has revealed several serious governance issues that clearly show Japan’s crisis of democracy. Key issues include the following.
- Deception by MOF, a major administrative agency, has severely damaged its fiduciary relationship with the Diet.
- In this case, MOF did not act on behalf of the public interest, but instead worked for the private interests of individuals related to the Prime Minister.
- The case shows that civil society cannot expect administrative bodies to preserve and properly disclose government records when requested. Instead, administrative bodies may tamper with and destroy documents in order to serve their own convenience.
- It is not yet clear whether the Prime Minister or the Minister of Finance issued specific instructions to modify or destroy government records, but it has been revealed that government personnel did take such actions as a result of speculating about their intentions. This shows that procedures intended to maintain government accountability are not working soundly. Instead, administrative bodies can take control or manipulate the people’s knowledge about government actions.
Japan has adopted laws intended to prohibit the kind of conduct seen in the Moritomo Gakuen case. In particular, the Information Disclosure Law and Public Document Management Law are intended to maintain government accountability and guarantee the people’s right to know. But the Moritomo Gakuen case and others show that these legal guarantees do not always function properly. If government officials tamper with and destroy documents at their own convenience, then neither law works to ensure government accountability; instead, government officials can manipulate the system to preserve only those records desirable for their own interests. The public will see only this distorted picture.
Civil society’s response
Meanwhile, journalists, opposition party politicians and civil society actors did not give up on their efforts to find the truth. Due to their efforts, various problems were revealed. When the allegations of government deception appeared, individuals and CSOs conducted protest activities and also brought cases to the judicial system through criminal complaints and litigation challenging the disposal of administrative records. These pressures and continued media coverage led to information leaks from inside the government that confirmed malpractice such as tampering with documents and document disposal. Journalists alerted the public with news stories based on this information.
The primary lesson to be learned is that individuals and watchdog organisations such as independent news media can put existing tools to work in order to fight for government accountability. The administration sometimes ignores its obligations to serve the public interest and the people’s right to know, but in a democratic system the people can fight to protect these interests.
When government officials abuse their power and distort administrative practices, they cause a crisis in democracy. The people can fight to reimage democracy in the hope of resolving the crisis. The Moritomo Gakuen case is one example where hard work brought hidden facts before the Japanese people.
However, following the Moritomo Gakuen case and other cases involving the mismanagement of official records, administrative guidelines were amended. Unfortunately, the direction of these amendments was not positive. The revised guidelines impose a rather formalised management system. Procedures were also added to control the content of documents along with new rules concerning preservation that avoid keeping records inconvenient to the government. Civil society groups were not provided with adequate opportunities to respond to the proposals constructively or present a concrete picture of desirable procedures.
The current crisis therefore shows a serious challenge against a fundamental principle of democracy. The government has avoided fulfilling the basic accountability required to maintain their legitimacy. In response, civil society needs broader outreach to the public involving a campaign to keep the government accountable.