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Nobuyuki Sato

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What’s the Problem with “Railroading”?
On the Passage of the Special Secrecy Law

Nobuyuki Sato
Professor, Chuo Law School, Chuo University
Areas of Specialization: Public law, British, American and Canadian law, information law

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Introduction

A law known as the Special Secrecy Law (“Act on the Protection of Special Secrets” (Act No. 108 of 2013)) was officially announced in Japan on December 13, 2013 and will come into effect within a year. Despite the many problematic aspects of the law that have been pointed out since it was first proposed and the strong call for careful consideration in public opinion polls, the bill was “railroaded” through the Lower House Special Committee on Security on November 26 and approved the same day at the Lower House plenary session, then “railroaded” through the Upper House Special Committee on National Security on December 5 and passed into law the next day at the Upper House plenary session.

Due, in part, to these circumstances, many discussions of the content of the law have already been publicized, and I’m sure we will see a progression of academic and practical studies on the subject. However, there seems to be a lack of discussion about the problematic issues surrounding the “railroading” that took place during the deliberation process, including a discussion of what these problems are. Thus, I would like to take this opportunity to examine this area.

What Is Railroading?

“Railroading” is a term without a legal definition. Thus, its definition varies somewhat depending on context and the person making the argument. It generally refers to a vote on a bill resulting from a situation in which the ruling and opposition parties cannot agree on the content of the bill or the method of deliberation and the ruling party makes a motion to stop questioning the bill, wrap up the discussion and immediately put it to a vote.

This may come as a surprise, but many Japanese laws are passed unanimously. Although the ruling and opposition parties are divided on their support for the bill in the remainder of the cases, they are usually in agreement on putting it to a vote, or in other words ending the discussion of the bill, despite the difference of opinion. Only a small fraction of laws are passed by railroading.

Incidentally, there are no provisions in the constitution that directly prohibit “railroading.” Thus, the problem of “railroading” requires a theoretical and practical response based on the constitution and principles of democracy.

The Problem with Railroading

As we saw earlier, railroading is an exception in the Japanese Diet in both practical and quantitative terms, leading to criticisms that it “violates the regular procedures of constitutional government” and is an “undemocratic process that rejects discussion itself.” The following statement issued by the Japan Federation of Newspaper Workers’ Unions is a typical example of such criticisms: “The Liberal Democratic Party and New Komeito forced the Special Secrets Protection Bill (Secrets Protection Bill) through the Diet late in the night on December 6. The bill was rammed through without adequate deliberation despite its clear unconstitutionality and fundamental flaws. The railroading of bills through the Upper House, which is supposed to be the ‘House of Common Sense,’ will go down in history as an outrage against constitutional government.”

In response to these criticisms, the other side has argued that democracy has always been a system where decisions are made by majority rule, and that there is nothing wrong with voting on a bill when there are clear “differences of opinion” in the Diet, with its party system and restrictions on party debate, since these differences cannot be bridged through questions or debate.

While these counterarguments do have a certain amount of persuasiveness, there are, nonetheless, several issues they fail to address. The space I have here is limited, so I will just point out two of these.

The first involves the way we perceive the relationship between “majority rule” and “debate” in the first place. It is true that majority-rule decision-making is unavoidable in a representative democracy with a party system, but does this mean “debate” is meaningless? If so, we might as well put every bill to a “direct nationwide vote” using information technology. The concept of “deliberative democracy” (democracy with adequate deliberation), in fact, has been convincingly advocated as a solution to this quandary. Deliberative democracy is frequently misunderstood as “democracy involving endless, rambling discussion” or “modified direct democracy.” These are merely superficial interpretations. Deliberative democracy should be understood as being based on the idea that for a policy to be legitimately adopted and imposed, those whom the policy will be imposed upon must be allowed to take part in adequate deliberation of the policy, and there must be an opportunity for differing interests to be reconciled through this deliberation. In this light, the argument that railroading controversial bills is natural and deliberation itself is a waste of time appears overly simplistic and, most importantly, capable of triggering a crisis for the entire system of representative democracy in the Information Age.

The second issue is how the deliberations on the bill should be evaluated from the standpoint of “democracy with adequate deliberation.” To be honest, controversial bills like this one must eventually be railroaded. Using the perspective discussed above, however, we would ask if the “time was ripe” for the railroading of the bill. When we look at the deliberation process for the Special Secrets Bill, major problems remain. These problems are wide-ranging, but in this article I would like to draw attention to how deliberations in the Diet, especially in the committees, are an important resource in determining the “intentions of legislators” for the enforcement of a law. From this standpoint, major problems remain in the deliberations for the bill, including the fact that the government offered nothing but a verbal proposal on the important issue of setting up an organization for the designation and monitoring of state secrets until right before the vote in the Upper House committee, and the fact that the government’s responses on the interpretation and application of specific provisions concerning the definition of state secrets and criminal penalties remained inconsistent until the very end.

Conclusion

“Railroading” is not a problem that is directly “unconstitutional” or “illegal.” It should be noted, however, that it is a more deeply-rooted problem, linked to the important issue of the stability of democratically-based societies. There are many issues that require much more discussion in the year leading up to the enforcement of the law.

Nobuyuki Sato
Professor, Chuo Law School, Chuo University
Areas of Specialization: Public law, British, American and Canadian law, information law
Born in Fukushima Prefecture in 1962.
Left the Doctoral Program at Chuo University Graduate School of Law before finishing in 1992. Holds a PhD in Law (Chuo University in 2000).
Assumed current position in 2006 after serving as a full-time instructor at Kushiro Public University of Economics. Appointed Vice-President of Chuo University in 2011.
Written works (all co-written) include First Encounters with Canada [Hajimete De-au Kanada] (2009, Yuhikaku Publishing), Abridged Constitutional Precedents 205 [Yoyaku Kempo Hanrei 205] (2007, Gakuyo Publishing/Henshukobo-Q) and Information: Fundamental Knowledge for Information Education [Information: Joho Kyo-iku no Kiso Chishiki] (2003, NTT Publishing).