The Cabinet Secretariat has ignored a major part of its pledge to advise relevant government ministries and agencies to submit documents designated as special state secrets to the Board of Audit, raising constitutional questions, it has been learned.
The Act on the Protection of Specially Designated Secrets stipulates that if administrative bodies determine that documents designated as special state secrets could "significantly interfere" with Japan's security, they will be allowed to refuse to submit these documents even at the request of the Diet and other bodies.
The Board of Audit suggested in 2013, before the Cabinet decision on the draft state secrets bill was reached, that this clause runs counter to Article 90 of the Constitution, which stipulates, "Final accounts of the expenditures and revenues of the State shall be audited annually by a Board of Audit and submitted by the Cabinet to the Diet, together with the statement of audit, during the fiscal year immediately following the period covered."
The Board of Audit called on the Cabinet Secretariat to amend the problematic provision in light of the Constitution. Instead of amending the provision, the Cabinet Secretariat promised to issue the notice to government ministries and agencies immediately after the legislation came into force.
However, according to records of the talks between the Board of Audit and the Cabinet Secretariat obtained by the Mainichi Shimbun through freedom of information requests, in January and February of 2015 -- shortly after the secrets law took effect -- the secretariat told the board that it would postpone sending the notice to relevant government ministries and agencies until after the 2016 ordinary Diet session. The secretariat also said it would water down the notice's content. In the end, the secretariat did not consult with the Board of Audit when it finally sent out the notice.
The Cabinet Secretariat apparently feared that if it were to place priority on sending documents designated as special state secrets to the Board of Audit, it could face objections from the Diet.
The secretariat's handling of the notice reconfirms that it does not respect the Constitution's Article 90. According to the records of correspondence between the Board of Audit and the Cabinet Secretariat, a counsellor of the Cabinet Intelligence and Research Office visited the Board of Audit in January 2015, immediately after the secrecy law took effect. The official explained that there were special secrets -- such as those obtained from foreign governments on condition that they not be revealed to third parties -- which could not be presented even to the Diet.
"There is an extremely high hurdle for issuing the notice as agreed due to its relationship to the Diet," the counsellor told Board of Audit officials, according to the correspondence. Touching on the historical background of Article 90 of the Constitution, the Board of Audit retorted, "It is unacceptable that administrative organs are allowed to refuse to provide (special secrets to the board) at their own discretion."
In February 2015, a deputy director-general of the Cabinet Intelligence and Research Office visited the Board of Audit and said, "It is difficult to issue a notice that states that there are no specially designated secrets that cannot be provided to the Board of Audit." The official then explained that the notice could be issued after special panels in both houses of the Diet finish examining the operations of the secrecy law, or after the 2016 ordinary Diet session. A senior Board of Audit official then said, "We want you to issue the notice at the proper stage as initially agreed."
After the Mainichi reported on the issue, the Cabinet Intelligence and Research Office issued a notice dated Dec. 25, 2015, but it did not contain one essential sentence from a draft notice confirmed in the 2013 agreement. The deleted sentence said that when the Board of Audit uses special secretes, they are "interpreted as not significantly interfering with Japan's security." It was Jan. 8, 2016 when the Board of Audit was informed that the Cabinet Intelligence and Research Office had sent the altered notice to government ministries and agencies.
An official of the Cabinet Intelligence and Research Office told the Mainichi, "We were thinking of sending the notice at an appropriate time after observing Diet debates and the operation of the law."