What is Tansa’s “State Funeral Document Concealment Trial”?
2024.10.21 11:08 Nanami Nakagawa
On September 30, 2024, we at Tansa filed a lawsuit against the government.
We have named this trial the “State Funeral Document Concealment Trial.”
What exactly is the “State Funeral Document Concealment Trial” about? What circumstances led to the lawsuit being filed?
This article will explain it clearly.
Illustration by qnel
The starting point was doubts about the Cabinet decision
We decided to investigate this case on July 22, 2022, two weeks after former Prime Minister Shinzo Abe was shot and killed on July 8.
What happened on July 22?
It was a cabinet decision to “hold a state funeral for former Prime Minister Abe.”
A cabinet meeting is held by the Prime Minister and the Ministers of State (ministers of each ministry). At the cabinet meeting, government policies and measures are discussed, and only if there is unanimous agreement is a “cabinet decision” made and reflected in future policies.
The cabinet decision to hold a state funeral for former Prime Minister Abe was made on this day, and plans were in motion to host the funeral on September 27.
We had doubts about this decision-making process.
Opinions were divided across Japan about holding a state funeral for former Prime Minister Abe. There were many reasons for this, including the evaluation of former Prime Minister Abe’s achievements, his relationship with the World Peace Unification Family (formerly the Unification Church), the fact that the funeral expenses would be covered by national funds, and concerns that it might violate equality under the law stipulated in Article 14 of the Constitution.
Given the division of opinion, it is even more important that the topic be debated in the Diet by members of parliament elected to represent the people.
However, then Prime Minister Fumio Kishida reached the conclusion through a cabinet decision without going through the Diet.
The participants in the cabinet meeting were Prime Minister Kishida and the ministers of each ministry, mostly LDP (Liberal Democratic Party) members. This can only be described as an opaque decision made by “insiders.”
The stamp of approval from the “Guardian of the Constitution”
We immediately decided to examine the problems with the Cabinet decision to hold a state funeral.
What caught our attention was a certain comment made by Prime Minister Kishida.
At a press conference on July 14, he said the following about the decision to hold a state funeral being made by cabinet decision:
“We are making the decision after thoroughly coordinating with the Cabinet Legislation Bureau. In this way, the government has determined that a state funeral can be held based on the cabinet decision.”
The Cabinet Legislation Bureau is an organization that directly assists the Cabinet in legal matters. Its responsibility is to verify whether bills submitted to Cabinet meetings are in accordance with the Constitution and other laws.
It is also known as the “Guardian of the Constitution.”
Prime Minister Kishida is claiming that the cabinet decision was made with the approval of the “Guardian of the Constitution.”
“Thoroughly coordinated” records on one sheet of paper?
Given that this was the case, we filed a request for disclosure of information with the Cabinet Legislation Bureau on July 26.
The disclosure of information request is a legal system that allows anyone to request the disclosure of documents held by public institutions.
We have requested all documents held by the Cabinet Legislation Bureau regarding discussions on the implementation of a state funeral. These should include the records of the “thorough coordination” that Prime Minister Kishida spoke of.
However, only one piece of paper was disclosed.
“Record of reception” disclosed by the Cabinet Legislation Bureau (Click on the image to enlarge or download the document)
The “record of the meeting” is titled “Regarding the cabinet decision to hold a state funeral for the former Prime Minister as a national ceremony.”
The consultation summary section consists of just this one sentence.
“In response to an inquiry about the contents of the attached documents regarding the subject matter, we responded that we had no opinion.”
In other words, the Cabinet Legislation Bureau did not say whether there was any problem with holding a state funeral by cabinet decision, but simply conveyed that it had “no opinion.”
The Cabinet Legislation Bureau’s website lists the following as its “main works”:
-Giving opinions on legal issues to the Prime Minister and to individual ministers as well as to the Cabinet as a whole (“opinion-giving work”)
-Examining legislative bills, draft Cabinet orders and draft treaties that are to be brought before Cabinet meetings (“examination work”)
It’s a failure to fulfill its duty.
“Three blank days” revealed through information disclosure request to the Prime Minister’s Office
This doesn’t make it clear what was discussed at all.
What caught our attention was an entry in the “record of reception.”
Consulters: Cabinet Affairs Office of Cabinet Secretariat. General Affairs Division, Minister’s Secretariat of Cabinet Office
Consultation date: July 12 to 14, 2020
In other words, this means that the Cabinet Legislation Bureau, the Cabinet Secretariat (= the Prime Minister’s Office), and the Cabinet Office (= the state funeral secretariat) were coordinating over the three days from July 12 to 14. Prime Minister Kishida said at a press conference on July 14 that he had “thoroughly coordinated with the Cabinet Legislation Bureau,” meaning that discussions were taking place right up until that point.
Therefore, we requested information disclosure for documents held by the Cabinet Secretariat and the Cabinet Office. The documents that were disclosed were four pages titled “Regarding the Cabinet’s decision to hold state funerals for former prime ministers as a national ceremony.”
This document is a reference material used by the three parties during their discussion and is not a record of the discussion.
There is no way that there wouldn’t be minutes of the three-day discussions. We have once again requested documents showing the contents of the exchanges with the Cabinet Legislation Bureau from July 12th to 14th.
The result was “document not found.” This means that there is no document. The reason was as follows.
Cabinet Secretariat: Not created or acquired, or discarded, and no longer in possession
Cabinet Office: No administrative documents have been created and acquired, thus not in possession
This is to say the Cabinet Secretariat “either did not create the documents or discarded them,” while the Cabinet Office “did not create the documents.”
In January 2023, we filed a request for review to overturn this result. Under this system, the Information Disclosure and Personal Information Protection Review Board, which is made up of lawyers, former prosecutors, and researchers, will deliberate on whether the “decision that the documents do not exist” was appropriate.
The result came out a year and a half later, in June 2024. The report stated that “both decisions not to disclose the information in the two cases were appropriate.”
This result was reached by the first subcommittee of the Information Disclosure and Personal Information Protection Review Board.
Yoshimitsu Goda: Chairman of the Review Board and Chairman of the First Subcommittee, Former Chief Justice of the Sapporo High Court
Takumaro Kimura, Professor, Graduate School of Social Sciences, Chiba University
Mayumi Nakamura, Attorney at Law
The contradiction of “Non-existence”
Despite the fact that the Cabinet Secretariat and the Cabinet Office discussed an issue important enough to be referred to the “Guardian of the Constitution” for three days, they “did not keep records or discarded the records,” according to the report.
If there really are no records, then Prime Minister Kishida’s statement that “the decision was made after thorough coordination with the Cabinet Legislation Bureau” is a lie. If it was coordination for an important decision, records would be kept.
This would also be a violation of the Public Records Management Act.
Article 4 of the Public Records Management Act stipulates the obligation to create documents as follows:
For the purpose of contributing to the achievement of the purpose specified in Article 1, employees of an administrative organ must prepare documents concerning the following and other particulars to enable decision-making processes including their background in the relevant administrative organ and performance of the affairs and business of the relevant administrative organ to be inquired into or observed logically, except when a case pertaining to processing is minor:
Decisions or agreements made at a cabinet meeting, a meeting consisting of the heads of relevant administrative organs or a ministry meeting (including those equivalent thereto), and the background thereof.
In this case, which was decided at a cabinet meeting, requires the preparation of documents.
In addition, Article 6 of the Public Records Management Act stipulates the obligation to preserve documents.
The head of an administrative organ must preserve administrative document files, etc., until the expiration date of the retention period of the relevant administrative document files, etc., in a location necessary for ensuring their appropriate preservation and use, in accordance with the content thereof, the passage of time, the status of use, etc., after taking measures to facilitate identification by using an appropriate recording medium.
This means that documents created cannot be discarded in a short period.
The two aims of the trial
This lawsuit has two objectives.
One is to stop the runaway Cabinet decisions.
In recent years, the government has been rampant in not only holding state funeral, but also in moving ahead with important matters through cabinet decisions without consulting the Diet, which is made up of representatives of the people. The worst example of this is the revision of the three national security documents by cabinet decision in December 2022.
We need the court to overturn the “non-existence” ruling, order the disclosure of the records, and confirm what discussions took place in the cabinet meeting to decide whether to hold a state funeral.
The other is to ensure compliance with the information disclosure system.
Both the Cabinet Secretariat and the Cabinet Office claim the documents do not exist, but that cannot be true.
If documents really didn’t exist, that means that bureaucrats were not even taking notes and were working solely from memory.
They went so far as to claim documents that actually existed “non-existence,” even against the law, because they had reasons not to release them.
This trial is not about the appropriateness of a state funeral. The absence of documentation to back up the holding of a state funeral is an issue, regardless of your stance on the matter.
Information disclosure is a system based on the law. Article 1 of the Information Disclosure Act stipulates the purpose of the law as follows:
The purpose of this Act is, to strive towards proper management of administrative documents and appropriate preservation, use, etc. of historical public records and archives, by providing for the basic particulars concerning management of public records and archives, taking into consideration that public records and archives as records of historical facts and various activities of the State and incorporated administrative agencies, etc. should be available for independent use by the citizens, who have popular sovereignty, as an intellectual resource to be shared by the people in supporting the basis of sound democracy, in accordance with the principle of sovereignty of the people, thereby enabling administration to be managed properly and efficiently, and also ensuring accountability of the State and incorporated administrative agencies, etc. to the public for their various activities in both the present and future.
Since the law is based on the constitutional principle of popular sovereignty, the dysfunction of the Freedom of Information Act shakes the very foundations of democracy.
This is an issue that affects everyone. We hope you support us.
(Originally published in Japanese on September 30, 2024. Translation by Mana Shibata.)
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