Reference | FYI

What will Abe's amended law for a national emergency mean in practice?

by Eric Johnston

Staff Writer

Prime Minister Shinzo Abe’s government aims to pass by week’s end controversial revisions to a 2012 law governing national actions to be taken in the event of new types of influenza.

The changes, which the administration aims to pass with as much opposition approval as possible by Friday, are expected to pave the way for the national government to declare a state of emergency it says will help it respond better to the COVID-19 virus, even as it admits individual rights might be impeded.

On Tuesday, however, Chief Cabinet Secretary Yoshihide Suga said that, at the moment, the situation didn’t call for declaring a state of emergency.

What does current law say about the government declaring a national emergency?

There are three main prerequisites that have to be met. They include: (a) when there are domestic reports of patients; (b) when there is a danger that the lives and health of people will be seriously damaged (for example, when the outbreak level of a serious illness is higher compared with the outbreak of ordinary influenza); and (c) when, with a rapid nationwide spread, there is the threat of serious damage to people’s lives and economic fortunes because the origin of the infections cannot be identified.

How much authority do local governments have to declare a state of emergency on their own?

Prefectural governors can take action on their own before a national declaration is issued. In Hokkaido, Gov. Naomichi Suzuki declared a state of emergency on Feb. 28. The difference is that in Japan, a local resolution is not legally binding. It’s more of a very strong request. Last week, residents in the northern prefecture were urged to think carefully before going out, and to consider whether their destination was some place that would draw large crowds or had poor air circulation. As of Monday, Hokkaido had recorded over 100 infections, the largest number of any of the nation’s 47 prefectures.

What might the Abe government’s revisions to the current national influenza law mean in practice?

The revisions would allow the central government to issue directives to all local governors to respond specifically to the COVID-19 virus in a number of ways that are also possible under the current law for influenza, which was enacted in 2012. Those ways include: (1) demanding prefectural residents in designated areas remain indoors unless absolutely necessary for a specific period of time; (2) demanding that events, operations and attendance at schools, social welfare offices, theaters, sports and entertainment venues and large gatherings be significantly curtailed or even shut down; (3) using land and facilities from private owners for temporary medical facilities (without their consent in the most extreme cases); (4) arranging for the manufacture, sale, supply, distribution, transportation and storage of necessary food and medical supplies by private enterprises. It would also give local governors the authority to expropriate necessary goods in the event that such enterprises don’t agree.

How long would the COVID-19 specific revisions be in effect?

Two years maximum, from the date the law goes into effect, during which time a national emergency could legally be declared by the central government.

What is the position of the major opposition parties?

The Constitutional Democratic Party of Japan has said it wants an amendment to the revisions to oblige the government to report to the Diet when it wishes to issue an emergency declaration — not afterwards, as is currently the case. There are also demands within the party to ensure experts are consulted before the declaration is issued, and some reportedly want the Diet, not just the Cabinet, to approve the emergency declaration.

The Democratic Party for the People has indicated that it thinks the current law is sufficient for the COVID-19 crisis, but has emphasized the need for government measures and funding to assist businesses suffering economic damage due to the virus.

Some in both parties, along with the Japanese Communist Party, have expressed concern that the revisions the government is seeking could impinge upon individual rights.

Abe has said that revisions would be used in ways that minimize the impact on lifestyles while, from a crisis management perspective, take into account a worst-case scenario of rapid and widespread infections. He also assured lawmakers that written records of proceedings related to the decision to issue a declaration would be properly kept and stored by the relevant agencies.

But he added that there was a possibility private rights could be curtailed if an emergency declaration was issued, and that the government would decide after sufficient consideration which of those would or should be impacted.

So how would the revisions likely work in practice?

After the Diet approves the final bill to revise the influenza law, the prime minister can declare a state of emergency. It is then up to each of the 47 governors to decide what specific measures they wish to take. Some may follow Hokkaido’s example. Others may opt for less stringent measures. But all local governors will face the practical and political dilemma of taking action under a national declaration that may prove unpopular, disruptive and economically damaging to their constituents. Or they could choose not to take certain actions, running the risk of being blamed by the central government and local voters for not doing enough if the number of infections in their prefecture’s suddenly increase.

In the coming weeks, that could mean restrictions if not outright bans on local cherry blossom-viewing parties in public places. More local businesses could elect to temporarily close, or reduce their hours of operation, if their prefectural governor requests that people not go outside unnecessarily.

What are some examples of national or local governments overseas taking measures to declare emergencies over COVID-19?

In the United States, the governors of eight states — New York, California, Washington, Oregon, Florida, Maryland, Kentucky and Utah — had issued emergency declarations over the virus as of Monday. Among other measures, states that do so can speed up the processes for purchasing supplies for treatment and hire more health care workers to assist local medical departments. Last week, President Donald Trump authorized an $8.3 billion budget to deal with the crisis but had not yet declared a national emergency.

Such actions are not yet as drastic as those implemented in Italy, where the word quarantine originates. The government there has sealed off much of the country, banning people from moving in and out of, or within, designated areas. There are exceptions only for recognized professional needs, health issues and a few other specific cases. Elsewhere, Iran has placed health checkpoints between cities. And in China’s Wuhan province, believed to be where the virus originated, there are travel restrictions in place.

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