Abe’s legacy of expanded police power

Author: Lawrence Repeta, Seattle

Shinzo Abe’s long tenure as prime minister of Japan is notable for many reasons, but perhaps his most enduring achievements were made in the Diet where he led colleagues in passing several highly controversial bills sure to have an impact for many years to come.

Abe’s crusade to rewrite Japan’s Constitution is well-known. Unsuccessful on that front, he adroitly turned to the Diet with a package of national security laws that authorised the deployment of Japan’s Self-Defense Forces abroad for ‘collective self-defence’ and other previously unthinkable missions. This legislation was encouraged and applauded by friends of the Abe administration in Washington and widely reported in the international media.

Another area of great significance to the Japanese people has attracted less attention abroad. This is police power. From 2013 to 2017, the Diet passed several landmark laws that increased police authority, including a state secrecy act and laws that expanded police wiretapping powers and introduced ‘plea bargaining’. Legislation that made ‘conspiracy’ a crime was perhaps the most significant.

All of these proposals had been on the government wish lists for many years but were stymied by broad public opposition. Only Abe’s determination and unique political power made their enactment possible.

The first controversial item on Abe’s legislative agenda was the ‘Specially Designated Secrets Act’, a law which greatly expands the power of government officials to label information secret and makes disclosure a crime. It was a building block in Abe’s larger defence strategy. When celebrating the law’s passage in December 2013, Abe himself cited the secrecy law as a ‘precondition’ for receiving secret information from allies. But the law granted officials the power to make a broad range of information that was unrelated to national defence secret.

It also imposes severe potential penalties on individuals that law enforcement authorities may choose to prosecute. Government officials charged with leaking specially designated secrets face up to 10 years imprisonment and a 10 million yen fine. News reporters and others charged with ‘instigating’ or ‘inciting’ a leak face a maximum five-year prison term. The Act provides no exception for whistleblowers who expose government wrongdoing or otherwise serve the public interest.

The Secrets Act was highly unpopular in Japan — tens of thousands of people surrounded the Diet in protest. A United Nations committee joined many critics of the Act, stating that it ‘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’.

Another controversial expansion of police power appeared on the 2016 legislative agenda. Following revelations of several cases involving abusive police interrogations and other problems between 2007–2011, the Justice Minister appointed an advisory committee to evaluate relevant laws with a focus on ‘excessive reliance on interrogations’. The committee’s brief included study of video recording interrogations, a measure long sought by bar associations and others interested in the rights of detainees.

But the actual legislation enacted on 3 June 2016 bears little resemblance to the committee’s original mission. The law did introduce video recording of interrogations, but this applies only to a tiny minority of criminal cases, estimated at 2–3 per cent of all cases. The same legislation also expanded police wiretapping authority and empowered Japan’s prosecutors to formally utilise ‘plea bargaining’ for the first time, enabling them to make cooperation agreements with suspects or defendants to obtain information for use against others. According to one expert, ‘it is ironic that though the criminal justice reform was triggered by a series of wrongful convictions as well as prosecutorial misconduct, the reform ended up strengthening prosecutors’.

The police retained priority on the legislative agenda for another year. The new objective was a law creating the crime of conspiracy. The Ministry of Justice had long sought such a law, but domestic opposition had been particularly vehement. In 2017, local opposition was joined by UN Special Rapporteur on the Right to Privacy Joseph Cannataci, who expressed his disapproval in a letter to Abe.

He objected to the long list of crimes that could provide a foundation for a conspiracy charge. Although the law was supposed to address ‘planning the execution of a serious crime for a terrorist or other organised crime group’, the great majority of the listed offenses are unrelated to terrorism or organised crime. Cannataci also wrote that because the term ‘organised crime group’ is undefined, it might be applied to anyone suspected of planning any of the many listed crimes.

The potential link between conspiracy investigations and police surveillance is the source of greatest concern. In Cannataci’s words, in order to establish the ‘preparatory actions’ required by a conspiracy indictment, individuals to be charged could be subject to ‘a considerable level of surveillance beforehand’. This is especially disturbing in a country where the police have already established a track record of deploying covert surveillance against targeted groups.

Japan’s police and prosecutors can detain suspects for extended periods, prohibit defence counsel from attending interrogations and enjoy other extraordinary powers. Laws passed during the long Abe administration further tipped the balance in favour of police power over individual rights, and their legacies live on.

Lawrence Repeta is a former professor of law at Meiji University and author of Japan’s Prisoners of Conscience.

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