Antonio Benasaglio Berlucchi
The spread of the new Coronavirus in Japan has been slower and apparently less severe than in other countries. However, the growing number of infections urges government’s rapid intervention to contain the epidemic and to limit economic losses. The Japanese government is now faced with new challenges as to how to balance the need to protect public health and, at the same time, preserve citizens’ rights. For Japan, the COVID-19 pandemic poses a fundamental question: would the implementation of restrictive measures violate Japan’s constitutional principles regarding human rights?
Abe Shinzō has become Japan’s longest serving prime minister in a country where political longevity is rare. Since his return in 2012 as leader of the Liberal Democratic Party (LDP), he has won three subsequent elections, securing large majorities in the Lower House for his party and its coalition partner the Kōmeitō.
The government’s initial response came in late January, when Abe issued an executive decree (seirei) which designates the new Coronavirus as an infectious disease under the Infectious Disease Control Law. Over the following weeks and throughout February, further measures were taken in the form of cabinet orders. The revision of the Quarantine Law allowed the government to impose quarantine on suspected patients as in the case of the cruise ship “Diamond Princess.” Furthermore, the executive ordered the repatriation of nationals from Hubei province and the subsequent enforcement of travel bans on foreigners coming from critical areas. These initial measures did not involve substantial restrictions of citizens’ freedom of movement. However, in view of a possible spread of the epidemic in Japan, lawmakers of the LDP began to consider the adoption of more stringent measures as a realistic scenario.
Beginning in early February, some right-wing representatives raised the possibility of a constitutional reform to introduce a state of emergency clause in order to strengthen the executive’s powers to cope with the emergency, even at the price of a temporary sacrifice of individual liberties. Prominent members of the ruling LDP as well as some MPs of the opposition voiced in favor of this option: LDP member Ibuki Bunmei argued that the outbreak of Coronavirus may become a test case for constitutional reform, and opposition MP Baba Nobuyuki of the right-wing Japan Restoration Party similarly argued that the current emergency was a “good opportunity” to initiate constitutional revision. In contrast, opposition parties as well as some individual LDP representatives protested against this proposal, arguing that effective policies could be pursued under the current legal framework with no need to change the constitution.
Initial plans to initiate constitutional revision were based on the assumption that, in the absence of a specific state of emergency clause, any initiative resulting in a curtailment of individual freedoms would infringe upon Japan’s constitutional provisions protecting human rights (jinken). Indeed, the Japanese Constitution (1946) makes extensive reference to citizens’ rights: chapter III is entirely devoted to the supremacy of rights and freedoms which, as spelled in article 11, “shall be the supreme consideration” of governments’ action. In addition, the constitution does not allow for any specific derogation clause in the exceptional case of a national emergency.
Constitutional revision has always been a controversial topic in Japan, notably with regard to article 9 which formally prevents Japan from having regular armed forces. Thus, it is not surprising that a significant number of MPs promptly reacted to the LDP’s attempt to associate the ongoing health emergency with the issue of constitutional change. In addition, constitutional amendment (which requires a two-thirds majority and a referendum) is a long process, and arguably not the most appropriate way to take quick action in an emergency situation.
For the moment, the Japanese government has set aside the constitutional issue, opting instead to revise extant legislation via ordinary law. This step had become a political necessity for Abe’s executive after the PM’s unilateral decision to close schools for one month was met with criticism from several MPs, policy experts and ministry officials claiming that it had no policy justification nor legal ground. In response, in early March the government submitted a legislative bill to the National Diet which modifies the 2012 “Law for Special Measures Against New Forms of Influenza.” The revised law grants authority to the PM to issue a state of emergency order and to instruct prefectural governors to implement restrictions on school activities and public gatherings for a time limit of two years.
The law was passed by a large majority, consisting of all parliamentary groups except for the Japanese Communist Party. Given the sensitivity of the issue, Abe’s decision to seek compromise with the opposition was essential to secure broad political consensus over measures which may curb individual rights. However, involving the opposition could also be seen as Abe’s personal strategy to minimize the political burden of the new law. A final draft was reached after a heated debate on the time limit of restrictions and the role of the National Diet in the event of a state of emergency order. PM Abe successfully persuaded the leader of the Constitutional Democratic Party (CDP) Edano Yukio to agree to a clause which reduces the PM’s accountability vis à vis the parliament, requiring him to inform the National Diet only after his decision to declare the state of emergency. Edano’s backdown was met with criticism from some party members; attorney and MP Yamao Shiori voted against the bill on the ground that “it violates the principles of constitutionalism” and left the CDP as a sign of protest against the party line (Jiji.com 2020, March).
The newly introduced law vaguely defines responsibilities and duties, leaving open a number of questions regarding the formal authority of the executive, the role of Japan’s 47 prefectural administrations and that of the parliament in the decision-making chain. Specifically, in the event that the PM declares the state of emergency, it is still unclear which institutional actors have the authority to impose restrictive measures on citizens’ lives and what accountability mechanisms are in place. Even a careful examination of the bill is not sufficient to answer these questions.
Under the new law, the PM has the authority to declare the state of emergency after consulting with a panel of experts. However, the executive has no formal power to impose a lockdown, or to unilaterally order people to stay home. In fact, the PM can only “send the necessary instructions” to prefectural governors, who are granted the power to implement appropriate restrictions. Nonetheless, lack of formal executive authority does not necessarily mean a weak PM. Japan features a unique way of organizing relationships between different administrative authorities: the central government often relies on non-binding recommendations as soft tools to accomplish administrative ends without facing opposition from local agencies. This practice, known as administrative guidance (gyōsei shidō), is characterized by a certain degree of opacity, where informal relationships prevail over the formal power balance between different institutional actors.
So far, the application of the central guidelines regarding the epidemic has widely varied across prefectures: Hokkaido governor Suzuki Naomichi declared (and subsequently lifted) a non-binding state of emergency and, on March 30, Tokyo metropolitan governor Koike Yuriko encouraged residents to avoid pubs, karaoke clubs and restaurants for two weeks.
In the weeks following the implementation of the revised law, Abe has been reluctant to invoke the state of emergency, which he eventually announced on April 6. The PM’s cautious approach since the beginning of the emergency has been harshly criticized for the risks it poses to public health. For instance, Tokyo metropolitan governor Koike publicly urged the government to declare the state of emergency to contain the epidemic. After Abe’s announcement, which involves seven prefectures including Tokyo, we may expect the PM to take a more active role in imposing the adoption of common measures. In line with the logic of administrative guidance, a loose interpretation of the revised law would allow Abe to take the lead, so as to exert informal authority upon regional governments. His success depends not only on his ability to use the soft tools at his disposal, but also on the course of the emergency.
In conclusion, the government’s decision not to undertake constitutional revision and Abe’s cautious approach in the process that led to the new law ease concerns about the risks of institutional imbalance. From a political point of view, it can be argued that the PM’s cautiousness had the effect of neutralizing allegations of authoritarianism. In my view, given the non-binding nature of the new law and Abe’s reluctance to impose restrictions on residents, there is no evidence to conclude that the Coronavirus emergency will have any significant impact on Japan’s democratic institutions. In any event, should restrictive measures be implemented, issues regarding their compliance with the constitution are to be raised by the Supreme Court, which so far has made no official pronouncements. Nevertheless, it remains to be seen whether restrictions in the form of non-enforceable recommendations will be effective in curbing the spread of COVID-19 throughout Japan.
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