A problem concerning the controversial special state secrets law and the Constitution has surfaced yet again.
Before the Act on the Protection of Specially Designated Secrets was passed in the Diet in December 2013, the Board of Audit of Japan expressed concern that a clause in the legislation violated Article 90 of the Constitution, which states that "final accounts of the expenditures and revenues of the state shall be audited annually by a Board of Audit."
The issue of the secrecy law possibly violating different stipulations under the Constitution was the main topic during Diet deliberations at the time. We call once again for in-depth Diet discussion about the controversial legislation's consistency with the Constitution.
The Board of Audit exercises its authority while maintaining its independence from the Cabinet. The Board of Audit Act states that administrative bodies are required to accept requests from the board for the submission of their accounting books, papers and documents.
Under the secrecy law, however, when there is "the risk of causing severe damage to Japan's national security" administrative organs can refuse to present information that they deem to be state secrets. The board pointed out that it would not be able to perform the necessary inspections when documents including specially designated secrets are subject to the board's screening.
While the Cabinet Secretariat that oversees the state secrets law did not respond to the board's request to amend the legislation, it agreed with the board to issue each ministry and agency with instructions that when the Audit Board requests the submission of specially designated secrets, government bodies need to comply.
Dec. 10 marks one year since the secrecy law went into effect, but no such instructions have been issued. In light of the tremendous weight of the Constitution, the Cabinet Secretariat should issue the notifications to administrative bodies as soon as possible. And each ministry and agency naturally needs to abide by such instructions.
Under the former Board of Audit Act in prewar Japan, items for military use and the state's confidential funds were exempt from the board screening. Consequently, the checking system on war spending did not function, and such a legal framework is believed to be one of the reasons for military expansion.
Under the current Constitution, the accounting results for the state's revenue and expenditure are all subject to the board screening. When looking back at history, it is clear that the independence of the audit body and securing unconstrained audits are important. These conditions should never be disregarded.
In regard to the secrecy legislation, the information oversight boards established at both the House of Representatives and House of Councillors can request government bodies to submit designated state secrets. Since the oversight boards do not hold binding power, however, administrative organs can refuse to comply under such a reason as "the risk of causing severe damage to Japan's national security." Doesn't this rule violate the Constitution that states the Diet is "the highest organ of state power?" Such a question has been persistently raised.
Furthermore, when the acquisition of a state secret develops into a criminal case, it is likely that the contents of such a secret will not be revealed during trials. Questions have been raised in this regard as it could endanger defendants' rights guaranteed under the Constitution.
The controversial security-related legislation was railroaded through the Diet in September this year amid outcry from many constitutional scholars who claimed that the legislation was unconstitutional. The government of Prime Minister Shinzo Abe was criticized for lacking respect toward the supreme law. The matter concerning the Audit Board is casting a question on the current government's stance on Japan's Constitution once again.