The tension between Japan’s ruling LDP and the country’s broadcasters and media has taken a lurch into the public eye, with widespread reporting of comments in the Diet’s Lower House Budget Committee by Minister of Internal Affairs and Communications Takaichi Sanae to the effect that broadcasting companies which fail to demonstrate impartiality could be taken off the air by the government. The notion of “impartiality” in this context is something of a dog-whistle; it’s the concept commonly used by right-wing conservatives to criticise TV anchors and journalists they percieve as being left-wing or insufficiently nationalist, a context of which Minister Takaichi, no stranger to the right wing of politics, will be keenly aware.
Takaichi’s statement is the first time that a government minister has spelled out in public what the LDP’s ultimate sanction against broadcasters which attract their ire might be, and it has attracted plenty of condemnation, including calls for restraint from within the ruling coalition itself. It’s true though that on the face of it, Takaichi is only stating the facts with regard to Japan’s law – Article 4 of the Broadcast Law demands that broadcasts be “politically fair”, “not distort the facts” and (even more vaguely) “not harm public safety or good morals”, and Article 76 of the Radio Act allows a Minister to temporarily shut down, restrict the broadcast hours or entirely revoke the license of a broadcaster who violates a provision of the Broadcast Law. These aren’t new laws, either; both bills date back to 1950, and while they have been amended more recently, the clauses Takaichi refers to have been in place for almost 66 years.
What’s the problem, then, with a minister simply reminding broadcasters of the powers that technically rest with her office? It’s not like the LDP has just pushed through legislation to restrict or censor broadcasting and is waving that around like a big stick; it’s just pointing out the existence of powers that have been available to every government in the post-war era. Minister Takaichi was even nice enough to say that she didn’t think she’d ever shut down a broadcaster personally, though of course she couldn’t say what any of her successors might do, and that she was simply helping to uphold the rule of law by restating the content of the law. Where’s the issue?
The problem, really, is that Japanese law is often – for quite deliberate and cynical reasons – a tremendous mess. Article 4 of the Broadcast Law is a legal disaster, binding the country’s entire broadcast media to rules that are so vague and ill-defined as to border on being infantile. What is the definition of “public safety”, which broadcasts may not harm? How about “good morals”; what’s the legal definition of a “good moral”? Who decides what’s “politically fair”? In contested situations, who gets to decide that is a “fact”, and what is a “distortion”? These terms, which the legislation makes no further effort to define or explain, are utterly vague and subjective – as is, I would argue, entirely inevitable for any rules designed to chase the daft pipe-dream of “objectivity” in news broadcasting.
It’s unsurprising then that Takaichi’s explanation of the rules in the Diet was equally vague and open to interpretation. The example she gave was a case where, “on a political topic where public opinion is divided, [a broadcaster] ignores one political opinion and deliberately adopts only the other political opinion, broadcasting programming which repeatedly exceeds proportional time for content supporting that view.” Just like the law itself, vast tracts of Takaichi’s explanation are open to interpretation. How much public opinion must support a point of view before it is “entitled” to broadcast time? How is proportionality decided? Should all points of view receive the same coverage – risking, to paraphrase Irish comedian Dara O’Briain, the situation where a broadcast reporting a successful satellite launch must give equal time to a prominent JAXA scientist who worked on the launch, and some bloke called Taro who claims the satellite launch must be a hoax because the sky is a carpet painted by God; how many Twitter followers must Taro have before he’s entitled to his three minutes on NHK’s evening news? Should coverage be divided up proportionally to public opinion polls – in which case, the LDP should brace for some pretty harsh coverage of its core policies, most of which are disliked by a plurality of the Japanese public? What, in fact, has public opinion – which is not mentioned anywhere in the Broadcast Law – got to do with this at all, and why should any broadcaster be forced to spend time serenely nodding along with views he or she firmly believes to be utterly wrong just because an opinion poll said some people agree with it?
Here’s the crux; the Japanese Broadcast Law, just like a large number of other Japanese laws, is quite deliberately vague and open to interpretation, because that’s just how the extremely powerful Japanese political bureaucracy and the LDP itself like it. Because the law is vague, the decision of how to implement it (and even whether to implement it at all) essentially lies at the discretion of ministry bureaucrats. Broad, sweeping concepts like “good morals” or “politically fair” give ministries enormous leeway in deciding what’s acceptable and what’s not at any given point in time. The LDP doesn’t need to pass harsh new legislation giving itself new powers to clamp down on the media, because Japanese legislation is designed to be so vague that ministries (whose bureaucrats drafted the laws in the first place) can, at some point down the line, exert quite extraordinary powers by edict, rather than having to go through the legislative process again.
This isn’t unique to the Broadcast Law. One of the (many) things that initially shocked me while conducting research into Japan’s capital punishment system a few years ago was that between the late 1950s and the 1990s, an open, transparent and humane (in as much as a capital punishment system ever can be) system had been transformed into an extraordinarily brutal, secretive and abusive system – entirely as a result of edicts from Ministry of Justice bureaucrats. Sweeping changes such as pushing all condemned inmates into perpetual solitary confinement, restricting visitor access to prisoners and not informing prisoners of their pending execution until literally minutes before it is carried out (or informing their families and legal representatives until after the execution) were implemented without so much as a single trip to the Diet floor for new legislation to authorise the changes. On a similar if slightly different note, consider the much-publicised crackdown on dancing after midnight, which saw police (especially in Osaka, but also in Tokyo and elsewhere) arresting staff and shutting down venues for the heinous crime of shuffling their feet after Cinderella’s carriage had turned back into a pumpkin; again, this sudden crackdown did not rely on any draconian new legislation, but on the dusting off and sudden implementation of excessively broad rules that had been lying around on the statutes since the late 1940s.
(Nor, it should be stated, is this particular wheeze of sneaky legislators unique to Japan; many governments around the world, including the UK and US governments, have attempted to pass legislation which included deliberately vague sections that could be reinterpreted to grant sweeping powers, only to fall back on pearl-clutching and wailing of “how could you accuse us of such underhanded intentions, we would never use these powers in such a manner” when astute legal scholars or journalists have drawn attention to their attempts to mount a legislative Chekov’s Gun on the mantelpiece of the state. Fast forward a few years and you end up with grotesque absurdities like UK local governments using counter-terrorism legislation to snoop on people and ensure compliance with rubbish collection rules. It is an important but sadly often disregarded fundamental rule of democracy that the people should never, ever grant broad powers to their government on the basis of a solemn but entirely non-binding promise that those powers will not be used, or will not be used outside a specific context; the mission always, always creeps.)
It’s in this context that we must consider the statements of Minister Takaichi – who probably has something of a personal axe to grind with the broadcasters her ministry regulates, given that they greeted her appointment to Abe’s cabinet by dredging up her enthusiastic endorsement of a book praising Adolf Hitler’s electoral politics, along with pictures of her posing alongside the Holocaust-denying head of Japan’s neo-Nazi party. The law she is citing is an old one; the interpretation she is citing, and the threat implicit, is a new one. The Broadcast Law itself is deliberately vague to the point of meaningless in order to permit this kind of interpretation and reinterpretation to suit the whims of the administration; the whim of this administration, as expressed in Takaichi’s statement, clearly leans towards control of, and heavy pressure upon, the nation’s media. Her statement is not a mere point of law – it is a threat, and the age of the law upon which that rests is inconsequential. Just because a dagger has been sitting harmlessly on the shelf for years doesn’t make it any less threatening when it’s picked up and waved in your face.