Necessary or not? The LDP's proposed emergency powers clause for the Constitution

OSAKA – May 3 marked 73 years since the Constitution took effect. Long-standing arguments over the future of war-renouncing Article 9 have often marked past celebrations on this day. But due to the coronavirus, a different proposal put forward by the ruling Liberal Democratic Party has taken the spotlight this year: a new constitutional clause that would give the Cabinet more power to declare and manage a national emergency.

Here’s a closer look at the debate.

What is the LDP proposing for a new clause to deal with emergencies?

In March 2018, the party’s constitutional reform promotion headquarters issued four main points for discussions on revising the Constitution. One of these was a suggestion to expand Article 73, which outlines the role of the Cabinet.

The addition would allow the Cabinet, without waiting for the Diet to act, to issue directives under a national state of emergency to protect lives and property. The proposed clause specifically refers to major earthquakes and other disasters where it is recognized that special circumstances mean there’s no time to wait on the Diet to pass legislation before taking action.

The proposal states that the Cabinet would by law promptly seek Diet approval when issuing such directives.

How and why has the coronavirus affected public opinion on that clause in the overall debate on constitutional revision?

A survey by Kyodo News over the past two months found that 51 percent of respondents specifically favor a constitutional provision for emergencies that would strengthen the Cabinet’s authority and 47 percent do not.

The support for more Cabinet authority comes as a reaction to the government’s response to the coronavirus, especially the need to first enact a law allowing the prime minister to declare a national emergency specifically for COVID-19.

The Diet passed that legislation on March 13, more than eight weeks after the first domestic case was confirmed and after the Diamond Princess cruise ship saga in February.

Prime Minister Shinzo Abe declared a state of emergency on April 7 covering Tokyo and six other prefectures — a declaration that was soon expanded nationwide — and people were asked to stay indoors and work from home until May 6 in the hope that would be enough. However, unlike a full lockdown, there are no legal penalties for not following the request. Ultimately, not everybody has obeyed it.

Why can’t the government order an immediate lockdown without revising the Constitution?

Currently, there are constitutional and legal barriers. For example, Article 22 states that “every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.” A lockdown where people are barred from going from one place to another and from doing their jobs could violate this article.

Article 29 deals with the right to own or hold property. While it does allow the government to seize property for public use (“in conformity with public welfare”), it adds that owners must be compensated afterward. That could take time. In an emergency that requires the government to quickly take over private property, there may not be much time to negotiate.

In addition, a lack of strong authority to respond to disasters has meant the government was eventually forced to deal with legal problems over issues like evacuation procedures or removing debris from disaster sites. Piecemeal legislation has been passed for previous disasters, such as the March 2011 Great East Japan Earthquake, and laws like the Basic Act on Disaster Management and the influenza law have even been revised. But the LDP continues to push for the new constitutional clause as a way to deal with all disasters more quickly and efficiently.

How are the other political parties reacting to the LDP’s push?

Citing legal experts who say a new clause is not necessary to carry out an effective disaster-relief response, and due to worries that what the LDP and Abe want will reduce the authority of the Diet and infringe people’s basic rights, most major parties in the opposition are against the idea. Only Nippon Ishin no Kai has come out in favor.

But Komeito, the LDP’s junior partner in the ruling coalition, is also expressing opposition. On April 9, Komeito heavyweight Kazuo Kitagawa signaled at a news conference that the LDP ally was opposed to inserting such a clause because it would establish a legal mechanism to restrict the movements of the people, and that there was no need to establish the grounds for restricting rights and freedoms during a national state of emergency.

What are the prospects of the clause being added?

To pass as a constitutional revision, the clause will first need to be approved by two-thirds votes in both the Lower and Upper Houses of the Diet. It will then need to win a simple majority vote in a national referendum. That will require much debate and possibly compromise, during which time public opinion could once again change, depending on how well the government is responding to either the coronavirus or a new contagion, under existing laws and the current Constitution.

Whether the LDP would demand the current wording of the clause be accepted — or allow further edits that provide for more Diet oversight — could also determine if adoption occurs sooner rather than later.