With a skyrocketing number of new COVID-19 patients over the last few days, Japan appears to be edging closer to declaring a state of emergency, a measure the central government has characterized as a last resort in the battle against the deadly virus.
But how far can the central government really go under a state of emergency?
There have been concerns that Prime Minister Shinzo Abe and the central government could end up wielding wide-ranging and restrictive powers under the law. One reporter even questioned Abe at a news conference over the possibility that the declaration could be used as a steppingstone for more extreme controls that could undermine freedom of speech.
Under the emergency law, however, the central government’s authority is relatively limited. In fact, it has no enforcement mechanism that can dole out severe legal punishments. Instead, it leaves prefectural and municipal leaders much of the enforcement powers. Compared with similar declarations in other countries, the Japanese version is an outlier in that real power is divested into prefectures and municipalities.
When can the prime minister declare a state of emergency?
The legislation stipulates that the prime minister is able to declare a state of emergency once the disease is “rampant,” or spreading at a rapid speed nationwide and poses a “considerable impact” on lives and the economy.
Top government officials, including Abe, have insisted that Japan is not currently thinking of declaring a state of emergency — something the prime minister himself said Saturday.
But the government has already laid the necessary groundwork for such an extraordinary measure.
Earlier this month, the Diet OK’d the inclusion of the new coronavirus in special measures legislation passed in 2012 to battle a novel influenza virus that became a pandemic in 2009.
The government on Thursday established a special coronavirus task force, an important prerequisite to declare a state of emergency. It followed the necessary step of the health minister briefing Abe on an assessment made by experts from a government panel on infectious diseases that there is a high risk of the novel coronavirus being “rampant” in Japan.
The government initially convened its task force on Jan. 30, but Chief Cabinet Secretary Yoshihide Suga clarified that the special task force adds a function to bolster cooperation between the central and prefectural governments, a move crucial for any state of emergency declaration.
What would a state of emergency look like in Japan?
Once the prime minister declares a state of emergency, prefectural governors would be empowered to “request” that residents stay at home except for essential tasks.
In Japanese, the term typically translated as “request,” however, is understood to be taken as “demand,” with a strong expectation that those asked will obey the directives. However, there are no legal penalties if not followed.
The request’s duration is not mentioned in the law, but the government is reportedly considering a roughly three-week time frame. The measures can be enforced in selected areas on a municipality basis within a prefecture.
Governors would also be able to request that schools, child care facilities, movie theaters and other public facilities be temporarily closed. As for offices, the prefectural government would demand that they “thoroughly implement infection control measures.”
If institutions refuse to obey the requests, prefectural governments could then order them shuttered and also disclose the entities’ names, essentially shaming them publicly. But the law does not provide any other penalty against refusals, such as arresting individuals defying the requests.
Ultimately, the law curtails the central government’s power out of concern for human rights and constitutional issues and instead seeks a collective sense of trust in the authority of the government “requests.”
In the event of a surge in patients, prefectural governments would also be able to requisition land to build temporary medical facilities and could do so forcefully if a landowner refuses.
Similarly, prefectural governments would also be able to order medicine and food suppliers to sell their goods to authorities. If suppliers refuse, prefectural governments would be able to forcibly procure those goods from them.
The central government, as well as prefectural and municipal authorities, have already designated an array of industries such as basic utilities, transportation and distribution firms and public broadcaster NHK as “designated public institutions.” Once an emergency declaration goes into effect, they can be required to disseminate information and necessities.
Skeptics of Abe have pounced on any indication of a heavy-handed approach, including when Cabinet Office State Minister Ichiro Miyashita earlier this month implied that commercial broadcast companies would be subjected to the regulations. He later acknowledged the remark was incorrect.
What do other countries’ states of emergency look like?
Other countries ravaged by the COVID-19 pandemic have already issued their own states of emergency.
France, for one, has taken an aggressive stance, passing legislation declaring a “state of health emergency” last week. The French prime minister is given the powers of “setting limits to the freedom of movement, the freedom to enterprise and the freedom to congregate.”
French President Emmanuel Macron had already urged French citizens to stay inside and have an official document describing reasons for leaving their homes. Currently, they can only venture outside for essential tasks such as grocery shopping and go to work only if telecommuting is not possible.
Under the country’s public health emergency measure, an offender could be fined €135 (¥16,270) for the first time, €1,500 (¥180,790) for repeated offenses within two weeks and €3,700 (¥445,940) and imprisonment up to six months for four violations in a month.
Meanwhile, the U.S. declared a national state of emergency on March 13. With this measure, the federal government now has access to funds that can be used to purchase medical goods and can deploy its resources to support local governments and distribute food and medicine.
Similarly, scores of states and municipalities have made their own declarations. Although declarations vary among local areas, they empower governors and mayors to waive certain regulations such as quotas for hospital beds and establish emergency medical clinics. These leaders can also take actions to stabilize the pricing of necessities to avoid price-gouging.
One key difference is that those leaders can enforce more restrictive measures — though they are not necessarily tied to the state of emergency declaration.
In New Jersey, for instance, Gov. Phil Murphy has ordered residents to stay home except for essential tasks like grocery shopping while ordering nonessential businesses, such as entertainment centers, to be shuttered via an executive order.
Those who disregard the rule could be slapped with disorderly conduct charges.
Several other states such as New York and California have opted to take similar approaches.
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