Recent Legislations in Japan (International Law)

Act of Partial Revision of the Establishment of the National Security Council
of Japan and a Related Act

Masayuki HIROMI
(Research Associate, Institute of Comparative Law)
(on 17 January 2014)

     1. Background

     In November 2013, the Diet of Japan passed a bill on "the Act of Partial Revision of the Establishment of the Security Council (the Act)," that had been submitted by Prime Minister Abe's second Cabinet. The Act provided for the establishment of the National Security Council (NSC) on December 4, 2013, to replace the existing Security Council.

     The origin of the NSC is the Defense Council that had been established in 1954 when the Self-Defense Force was founded, in order to maintain the civilian control over the Self-Defense Force. The Defense Council became the Security Council in 1986 that had the added function of crisis management.

     However, after the attacks of 9/11, the government of Japan gradually acknowledged the further need for coordinating foreign affairs and security policies of the country with the contemporary international security environment and for strengthening capabilities of the Security Council. The first bill to amend the Act and establish the NSC was submitted to the Diet by Prime Minister Abe's first Cabinet in 2007 but was not acted upon in the Diet following his resignation as prime minister.

      One of the recent events that prompted the government to revise the Security Council and establish new NSC was the Algeria hostage crisis that occurred on January 28, 2013. In that crisis, Japanese and other foreign workers in a natural gas complex were taken hostage by armed Islamic militants. Because of the inability of the Japanese government to sufficiently gather information on the situation, the crisis substantiated the government's need for improved management and responding capabilities for gathering and analyzing information when such a crisis occurred.

     2. Contents

     (1) Task of the NSC

     Article 1 of the Act establishes the NSC as the governmental body that deliberates important matters regarding the national security. The role of the former Security Council was limited to deliberating matters relating to the national defense and responses for grave emergency situations (i.e., situations other than an armed attack and situations in areas surrounding Japan).

     (2) Ministers Meetings

     Article 5 of the Act provides for two ministers meetings in addition to the existing "9-Ministers Meeting" of the NSC, the "4-Ministers Meeting" (the members of which are the Prime Minister, Minister for Foreign Affairs, Minister of Defense, and Chief Cabinet Secretary), and the "Emergency Situations Ministers Meeting" (the members of which are the Prime Minister, Chief Cabinet Secretary, and other minister(s) designated by the Prime Minister). The core meeting is the 4-Ministers Meeting that makes fundamental decisions relating to foreign and defense policies that concern national security both in particular events and as a general strategy (Article 2, paragraph 2(9) of the Act). The Act streamlines composition of the meeting by providing the government with the flexibly to make prompt strategic decisions about security and diplomatic matters.

     (3) Special Advisor to the Prime Minister on National Security

     Article 8 of the Act establishes a permanent Special Advisor to the Prime Minister for National Security. The Special Advisor can attend every Ministers Meeting and express his/her opinion, subject to the authorization of the Chair of the meeting. The Abe Cabinet appointed Mr. Yousuke Isozaki, former Vice-Minister of Foreign Affairs and Special Advisor to the Cabinet, as the first Special Advisor.

     (4) Secretariat

     The Act also establishes a permanent National Security Secretariat as part of the Cabinet Secretariat (Article 12). This Secretariat is composed of six departments and is allocated a staff of approximately sixty people primarily from the Ministry of Foreign Affairs, the Ministry of Defense, the Public Security Intelligence Agency, and the National Police Agency. The Secretariat consists of the following departments: (a) the Management and Coordination Department; (b) the Strategy Department, the department that takes charge of the planning and drafting of national security strategy; (c) the Intelligence Department, the department that gathers, coordinates, and analyzes information relating to the diplomacy and security of Japan; (d) the Allied and Friendly Nations Department; (e) the China and Korea Department; and (f) the Other Nations Department. The Allied and Friendly Nations Department, the China and Korea Department, and the Other Nations Department are the departments that study the diplomatic and military policy of the specific nations and regions. The Abe Cabinet appointed Mr. Shotaro Yachi, former Administrative Vice-Minister of Foreign Affairs and Special Advisor to the Cabinet, as the first Secretary General of National Security Secretariat.

     (5) Information Gathering and "the Certain Information Secrecy Act"

     Article 6, paragraph 1 of the Act requires the Chief Cabinet Secretary and the relevant Ministers to provide the NSC with the materials and information relating to national security. The Act enables the government to integrate and share the information that is separately collected by each ministry. In proposing and passing the Act, the Cabinet and Diet paid special attention to the need for the government to control information that is crucial for protecting national security.

     In this connection, the Diet passed a bill on "the Certain Information Secrecy Act (the Secrecy Act)" (the House of Representatives on November 26, 2013, and the House of Councilors on December 6, 2013) as an integral part of the establishment of the NSC. The Secrecy Act provides that relevant ministers shall designate the information regarding the national defense, diplomacy, and the prevention of spies and terrorisms, which leakage would have a significant adverse effect on national security, as "special secrets." Although the amendment to establish an independent third-party agency which supervises the designation of "special secrets" or the termination of the designation and disclosure of the information, was proposed during the Diet's consideration of the Secrecy Act, the final wording of the Act established "the Information Preservation Supervision Commission" as a governmental department. The Act provides that special secret information shall be preserved under secrecy for five years but that it is possible to renew the preservation of secrecy terms per five-year periods.

     The Secrecy Act provides that a person who leaks or fraudulently acquires "special secrets" shall be punished by imprisonment for not more than ten years, in contrast to the ordinary National Public Service Act, which provides that an official who breaches the obligation to preserve secrecy (Article 100 of the National Public Service Act) shall be punished by imprisonment for not more than one year. The personal scope of applicability of the Secrecy Act is not limited to the officials who leak special secrets because it also applies to persons such as journalists and members of a citizen group who fraudulently acquire and leak secrets.

     3. After the Establishment

     The NSC published the first National Security Strategy as a general guideline on December 17, 2013, when it emphasized "the positive pacifism under the spirit of international cooperation" as a fundamental principle for the security policy of Japan. The phrase implies the Japanese have made an active commitment to international peace operations in order to secure international and regional peace and stability. The NSC also specifically directed, on December 23, 2013, that bullets be supplied to the personnel of the Republic of Korea participating in the UN Mission in the Republic of South Sudan, but the decision has been criticized as being contrary to the Principle on (the ban of) Arms Exports, which was established by decisions of the government of Japan. With regard to the Secrecy Act, critics are still arguing that the Act is in conflict with the right to information and the freedom of press that is provided by the Constitution of Japan. These issues will be resolved through the implementation of these Acts.