The weekslong COVID-19 saga has ignited an outpouring of criticism both at home and abroad over the containment measures — or lack thereof — that Japan has been taking to curb the spread of the potentially deadly pathogen.
What some critics slam as Japan’s lax and tardy initial response has highlighted the more draconian steps countries other than China are taking to contain the crisis.
Italy, for one, was quick to place 11 towns comprising 50,000 residents under lockdown and deploy the military to stand guard. Reports say residents who step outside will be slapped with fines or up to three months of imprisonment.
How far does the existing legal system allow Japan to go?
Let’s take a closer look.
Can the government order city lockdowns to deal with the coronavirus outbreak?
According to Hyogo-based lawyer Koju Nagai, who is well versed in disaster prevention laws, the short answer is no.
The closest Japan has at the moment, he said, is a law enacted in 2012 to battle a novel influenza virus that became a pandemic in 2009. The law spells out a raft of measures that can be taken by governors to restrict the movement of people.
But even so, municipal leaders can merely request that residents under their jurisdiction stay indoors as much as possible and that schools and other public facilities temporarily shut or scale back their businesses. Should the requests be disobeyed, governors can take it up a notch and issue something that amounts to an order, although failure to comply entails no penalties, Nagai said.
There is also the question of whether the anti-influenza law, which applies only to completely new infectious diseases, can be used for the COVID-19 outbreak. Health minister Katsunobu Kato has reportedly told the Diet that the current crisis does not constitute a new disease as envisioned by the law because coronaviruses have been a known entity for years.
Has a city lockdown ever been employed in postwar Japan?
Nagai said he is not aware of any such instance.
In terms of restricting free will, however, the 2011 triple core meltdown in Fukushima Prefecture ended up forcing residents in the vicinity of the reactors to leave their towns, though they were not confined as a lockdown would call for.
The legal basis for designating the no-go zones was the disaster management law, which grants mayors the power to establish restricted areas and declare them accessible only by those with special permission, such as the police, firefighters and Self-Defense Force personnel. But since this law is fundamentally premised on coping with natural disasters, such as earthquakes and floods, it mentions nothing tantamount to a lockdown, the lawyer said.
“A lockdown is unnecessary in most natural disasters. … You would need to evacuate survivors, not confine them,” Nagai explained.
In a step not dissimilar to lockdown, however, Japan in the past did go to great lengths to target and quarantine people with leprosy, forcibly institutionalizing them for decades even after the illness, also known as Hansen’s disease, became curable. The law that stipulated the isolation of leprosy patients was found unconstitutional in 2001 by the Kumamoto District Court. The government did not appeal.
Can the government close or curtail public transport to deal with the outbreak?
Transport ministry officials in charge of trains and buses said it can’t, but an aviation official did not entirely rule out the possibility.
The ministry has no power to halt or downsize train operations, and the most realistic response to the COVID-19 outbreak would be for each railway to consult guidelines compiled under the 2012 influenza prevention law, a transport official in the Railway Bureau said.
In the meantime, Keita Yamamoto, an official from the Road Transport Bureau, said the transport ministry is technically authorized under the road transport law to order the suspension of bus operations. But he said the odds are slim that the statute can be applied to the coronavirus crisis because the order can only be issued in the event of malfeasance on the part of bus operators that results in jeopardizing passenger safety or “inhibiting the public welfare,” as the law puts it.
Aviation Bureau official Hirokazu Numata said more stringent steps may be applicable to planes. For example, he said, it is possible for the ministry to use the civil aeronautics law to order air carriers — both domestic and foreign — to cancel or downsize flights to stem the spread of the virus if they haven’t complied with a ministry request to do so.
“But realistically speaking, I highly doubt such a situation will ever arise because carriers are most likely to scale back flights voluntarily if the number of passengers dwindles,” Numata said.
Can the government force public and private schools to be closed?
No. Abe requested that all elementary, junior high and high schools close starting Monday to limit the potential spread of the pneumonia-causing virus among children, but some prefectures and municipalities have said they will either not comply or will delay closure by a few days.
Those include Ehime Prefecture and the cities of Izumo, Shimane Prefecture, Ishigaki, Okinawa Prefecture and Kanazawa, Ishikawa Prefecture.
The authority for closing public school ultimately rests with each municipality’s education board, education ministry official Yukiko Shimooka said. For private schools, the final say rests with the owner, she said.
Can the government order private events to be canceled or postponed?
Lawyer Nagai says such a step would be inconceivable as that would be a direct violation of the free choice of employment as is defined by the Constitution.
Government efforts to restrict the free movement of people have also stirred concern.
The “state of emergency” declaration issued Friday by Hokkaido Gov. Naomichi Suzuki, for example, requested that residents stay indoors as much as possible this weekend but is not legally binding.
At a hastily arranged news conference Friday, Suzuki acknowledged that the declaration has “no legal basis” but said he was nonetheless asking for public cooperation to “protect people’s lives” and minimize further damage to Hokkaido’s economy.
“All I can do is ask,” the governor said.
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