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Japan's steady march toward a less democratically accountable government has taken another key step with the Supreme Court's recent decision to avoid ruling on the constitutionality of the mass surveillance of the resident Muslim community.

A lower court had declared police surveillance of virtually all Muslims living in the country as a policy that is both "necessary and inevitable" to prevent terrorism, and the Japanese Supreme Court has now let that verdict stand.

Many constitutional scholars are appalled. Few independent observers can square these court rulings with, for example, Article 14 of the Constitution which declares, "All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin." Nor is it consistent with Article 20, which states, "Freedom of religion is guaranteed to all."

Rather, what the Japanese courts have now ruled is that simply on the basis of being Muslim, it is "necessary and inevitable" that Japanese police and security services can surveil your home and workplace, record your movements and the identity of your friends and contacts, and basically treat you, clandestinely, as a criminal suspect.

It is difficult not to be reminded of the presumptive Republican nominee for US President, Donald Trump, and his particular proposal - both farcical and notorious - to ban all Muslims from entering the United States "until our country's representatives can figure out what is going on".

In Japan's case, it appears that in the run-up to the July 2008 G8 Hokkaido Toyako Summit, some bright spark within the National Police Agency decided that the security services needed to "figure out what is going on" with the Muslims in the country. He gave orders to surveil and compile information about the entire community of tens of thousands of ordinary people - no doubt searching for the illusory religious radicals he believed could be planning terror.

Japanese police and security services can surveil your home and workplace, record your movements and the identity of your friends and contacts

The official paranoia of that era can be well appreciated by recalling that the Minister of Justice was Kunio Hatoyama, who had just recently been mocked for justifying his tough stance on immigration issues by declaring at a press conference that he had "a friend of a friend" in al-Qaeda who was regularly entering and exiting Japan.

As if it wasn't bad enough that the Japanese police were conducting a policy that was clearly unconstitutional by any reasonable reading of the law, they then compounded their shame when a computer data leak made some of their secret reports available on the internet in October 2010.

It was a case of incompetence piled upon incompetence. Not only had the police failed to secure their own secret reports (thus revealing to the public their own lawless behavior), but some of the Muslims whose personal information had been leaked were then amused to discover the shoddy nature and conclusions of the police investigations.

In subtle but still quite important ways, the Japanese political system has been becoming increasingly authoritarian

While some of these targeted individuals could laugh at the ridiculousness of the content of the leaked information, others were seriously inconvenienced when their Japanese neighbours and employers found their names on lists of people whom the police had suspected of having terrorist links.

The legal case against the police should have been straightforward, but of course everyone also understands that Japanese courts have a long track record of being extremely reluctant to rule against the wide administrative discretion that is deferentially afforded to the Japanese government bureaucracy; the real locus of power within the Japanese system.

It's one thing for the people to have constitutional rights on paper, but it's often quite another to have judges willing to enforce the law in the face of powerful official preferences. In this case of obviously illegal police surveillance of Japan's Muslim community, the judges once again took the coward's way out, ruling that the victims should receive financial compensation (in an attempt to buy them off), while refusing to rule on the constitutionality of the police policy.

In fairness, it should also be recognised that other than this kind of surveillance, many Muslims are quite happy with their lives in Japan. It is a peaceful, nonviolent society in which Muslims face no special barriers to the practice of their religion or to the advancement of their careers.

While many Japanese people are influenced by negative media images of Islam, it is almost always the case that once personal contact is made and they see with their own eyes that a local Muslim is acting in an orderly and constructive manner, their prejudices quickly fall away and acceptance is easy to achieve.

If the Japanese government wants to return to its old prewar culture of police state behavior and mass surveillance conducted the name of "national security,” there are fewer and fewer tools remaining to combat this trend

Suspicion of Islam may be widespread within Japanese society, but it is not particularly deep-rooted or intense.

Indeed, what is really more alarming to those who know Japan well is not what the Muslim surveillance case means for relations between Japanese and Muslims, but what it demonstrates about the lack of official accountability in Japan more generally.

In subtle but still quite important ways, the Japanese political system has been becoming increasingly authoritarian. The administration of Shinzo Abe, in particular, has been actively pushing in this direction for several years.

Most relevant to this discussion is the implementation in 2014 of a harsh secrecy law which means that in the future it is far more probable that leakers and reporters will be sent to prison, rather than any Japanese officials who engage in unconstitutional behavior, such as the police certainly did in this case.

If the Japanese government wants to return to its old prewar culture of police state behavior and mass surveillance conducted the name of "national security,” there are fewer and fewer tools remaining to combat this trend, especially if the judges of the Supreme Court remain populated by bureaucratic cowards.


Michael Penn is President of the Shingetsu News Agency and author of "Japan and the War on Terror" (I. B. Tauris, 2014).


Opinions expressed in this article remain those of the author and do not necessarily represent those of °®Âþµº, its editorial board or staff.