JAPAN’S INDULGENT LAWS HINDER PREVENTING A SECOND CORONAVIRUS OUTBREAK
Japan’s current question over an emergency law to stem the coronavirus outbreak has aroused controversy over its possible broader use in defense and military policy. To prevent that, Japanese liberals and leftists want to make clear it applies only to natural disasters.
A week has passed since Prime Minister Shinzo Abe extended the state of emergency to May 31. The national daily totals of confirmed new infections have dropped below 100 in some prefectures, with Tokyo constantly under 50. These numbers reflect cautious mass behavior across the nation approximately two weeks preceding the dates of confirmed infections.
Fortunately, Japan has so far been spared explosive growth of infections, but the numbers would jump fast if we let our guard down. Appearing on my regular “Genron” Internet news show as a guest on May 8, Economic Revitalization Minister Yasutoshi Nishimura charged with coronavirus countermeasures stressed:
“I strongly feel that we Japanese are doing a great job coping with the coronavirus crisis. Before Mr. Abe declared the state of emergency on April 7, he and I discussed related matters extensively, as I feared asking people to reduce contact by 80% to stem people-to-people infection would be extremely difficult. Besides, I was unable to imagine what that would entail in terms of inconveniences on the part of people. So I told the prime minister I wasn’t too sure how the public would react. But he was determined to ask people to cooperate, emphasizing that he firmly believed Japanese would be able to live up to his expectations. So we went ahead with the 80% reduction request.”
Nishimura explained that Abe placed great trust in the high level of public hygiene consciousness, moral values, and solidarity of the Japanese people.
Basically, however, that was Abe’s only choice at the time. Japan’s postwar peace constitution, leery of misuse of power, does not give the prime minister or prefectural governors emergency powers to govern by command. This is turning into a serious gap in Japanese governance. To be sure, the number of newly confirmed infections has steadily declined, as most Japanese exercised admirable self-restraint, enabling Japan to block the virus’s spread in its initial stages. But the fight against the virus will be long and hard. Although the government is expected to partially lift the state of emergency on May 14, we must stand ready for a second or third wave of infections spurred by eased restrictions on our activities.
Can our existing system, including laws and medicine, cope effectively with new circumstances? In sharp contract to most Japanese who literally “sheltered in place” during this period, some pachinko pinball parlors stayed open, daily attracting huge crowds to tightly enclosed halls. Their proprietors completely ignored governors’ pleas and the shaming of their establishments by publishing their names.
Meanwhile, the government offered some relief to compensate businesses for voluntary closing, but some parlors still refused to budge, driving governors to issue “instructions” requiring parlors to halt operations but without specific legal penalties. Several parlors in Chiba and Hyogo remained open, defying the governors’ instructions. There was nothing else the governors could do about the defiant parlor owners in light of an absence of penalties.
Impending Second Wave of Outburst
With a likely recurrence of similar incidents in mind, Nishimura strongly argued for a need to develop laws mandating the prime minister to issue commands to protect people’s lives in times of crisis. The legal basis of the government’s measures coping with the Wuhan Virus is a revised special measures law based on the 2012 “New Influenza Special Measures Act” from the short-lived Democratic Party (DPJ) administration (2009-2012) after the H1N1 (“swine flu”) epidemic. The left-leaning DPJ was adamantly against giving central and local governments emergency powers, placing instead maximum value on the rights and freedoms of people. Consequently, as the national coronavirus crisis amply demonstrates, Tokyo does not have the power to implement strict measures in favor of protecting lives, as I have often mentioned in this column. Explained Nishimura:
“In European nations where the rights and freedoms of individuals are honored, such as France, cities have been placed into lockdown to ban people from going out unless absolutely necessary. As regards our current Special Measure Law, revised on March 13, I am fully for another revision—in the interest of the health and lives of people—entitling the central and local governments to impose penalties on those who refuse to comply with “instructions” in times of crisis. We will naturally need broad constitutional debates on whether it is at all possible for us to adopt the same legal framework as the US and European nations in dealing with a national crisis of this magnitude.”
Prime Minister Abe is slated to partially lift nation-wide coronavirus emergency on May 14. We’d be blessed if all goes well afterward. But if it should fail, the second wave of infection will be imminent. In that case, a speedy revision of the special measures law Nishimura advocates would be mandatory. Explained Nishimura:
“In view of the present circumstances, I cannot but be concerned about people letting their guard down when the restrictions are eased even partially. As of today (May 8), a total of 24 pachinko parlors—among the most crowed and enclosed spots for human-to-human infections of the Wuhan virus—have resumed their operations in Tokyo alone. In order to take strong measures aimed at stemming the epidemic against such a backdrop, I consider it mandatory for the government to implement a revision of the Special Measures Law as soon as possible.”
The ruling coalition of the Liberal-Democratic (LDP)—itself divided on the issue—
and its junior partner Komeito Party could enact a revision with the cooperation of a minority party or two, including the Japan Restoration Party. After that, the emergency clause central to a new special measures law would have to be written into Japan’s constitution. This would be difficult, requiring two-thirds of both houses and therefore the consent of most opposition parties. The Constitutional Democratic Party and the Japan Communist Party, who fear abandonment of Japan’s pacifist constitution, would balk.
One of the four clauses the LDP proposed in 2018 to revise the constitution stipulates that a state of emergency be “declared in case of a major earthquake or a similarly abnormal and large-scale national disaster” which would “plunge the Diet into dysfunction.”
The opposition in the Diet unanimously objects to the proposal, claiming that the phrase—“other abnormal and large-scale national disaster”—is too broad and would allow Tokyo to do as it pleases militarily both at home and abroad. Talks among parties stalled. In an attempt to break the deadlock, the LDP leadership has proposed a compromise that itself created a sharp division within the party.
One LPD group believes that the proposed emergency clause is fundamentally necessary for Japan in order to protect the lives of people and its homeland amid rapidly changing international circumstances—i.e., a normal national security requirement for all nations. Therefore, Japan must naturally look into the issue broadly, including the military aspect, argues this group.
Dumfounded by Japanese “Peace Addiction”
A second group contends that changes must be made in phases, starting with the current situation. By putting “natural” before “disaster” in the clause in question, this group proposes that the section read: a national emergency would be “declared in case of a major earthquake or a similarly abnormal and large-scale natural disaster.” In other words, this group wants to see a state of emergency declared only when Japan is hit by major natural disasters. No natural disaster, no emergency.
The first group offers a much sounder argument. But the LDP’s junior coalition partner Komeito has remained staunchly negative about a constitutional revision almost to the same extent as the top opposition Constitutional Democrats and Communists. The LDP will not be able to revise the constitution without first winning the consent of Komeito and then of sensible factions within the opposition National Democratic Party and the Japan Innovation Party.
This is the reason why the second group, in their zeal to dispose of any military implication, is adamant about guaranteeing that a prime minister should declare an emergency only when Japan is hit by natural disasters. Every time I come across an argument of this nature, I am absolutely dumfounded by how “peace-addicted” Japanese have generally become. But then this is a sad reality of Japan today.
Why must Japan revise its constitution now, not just the Special Measures Law? Behind this need is our bitter experience resulting from the 2011 Great East Japan Earthquake. To rejuvenate the vast areas devastated by the magnitude 9 earthquake and the colossal tsunami that followed, debris and collapsed houses had to be urgently cleared away. Under the law, prefectural governors were entitled to instruct that such operations proceed swiftly, but work was greatly delayed because of Article 29 of our constitution: “The right to own or to hold property is inviolable.” Lamented Governor Yoshihiro Murai of Miyagi Prefecture: “Even a pillar in a house was rigidly protected as inviolable private property under the constitution.” Queried about the cause of the delay in rebuilding operations in the Diet, a counsellor of the Cabinet Office testified: “The government could not readily restrict people’s freedoms and rights,” referring to property rights and economic transactions. This means that the authority granted the government under our law fails to function in case of emergency, unless the constitution stipulates the legal basis of government action. Result: paralysis.
The Wuhan virus issue has laid bare the awkward limits of Japan’s constitution while there are other problems to tackle. Our top priority now is overcoming the virus at all costs, doing our very best to prevent a further climb in infections and deaths. Without every one of us playing a commensurate role on sharing burdens to help put our medical system in order, we will never be able to implement an effective resumption of our economic activities or a satisfactory rebuilding of our shattered life.
Japan should strive for a new goal—becoming a world “medical power” as opposed to Beijing’s self-promoting “Heath Silk Road” that China now showcases. We should deliberately work out our national strategy in a concerted effort to form a much-needed structure on which to build our future as a responsible and trusted leader of the international community. Japan would do well to work closely with Taiwan, which has won the respect of the world for having expertly fought off the Wuhan virus.
(Translated from “Renaissance Japan” column no. 901 in the May 21, 2020 issue of The Weekly Shincho)