As flu season approaches and new cases of the novel coronavirus remain consistently high or surge again in several cities, fears of a twofold crisis have led many to call for laws to be revised to distribute power concentrated in the central government and appease municipal leaders demanding teeth in the fight against COVID-19.
Prime Minister Yoshihide Suga maintains that legal revision is an arduous political process that should be shelved until after the coronavirus is contained. But experts say doing so is an immediate necessity, one that could be achieved within months if not for complacency and bipartisan politics.
“It’s better to have a tool and not use it, than to not have it and suffer the consequences,” said Shuya Nomura, a professor at the Chuo University Graduate School of Law. “It’s true that the country has avoided heavy casualties without imposing citywide lockdowns or strict measures, but we don’t know why we got lucky or if those methods will continue to work.”
In Japan, virus countermeasures are derived from three laws — the infectious disease law, the Quarantine Act and the new influenza special measures law — all of which were enacted years before the coronavirus began to wreak global havoc earlier this year.
In terms of transmission rate, frequent lack of symptoms and the proportion of individuals who develop serious symptoms, the novel coronavirus is far different from the infectious diseases that served as a basis for the country’s current virus laws, Nomura explained.
While each law is separate and distinct, together they allow the government to impose, among other things, stricter hospital admission requirements for those who test positive, border control measures and the reallocation of funding to enhance testing capacity, support health care facilities and bolster medical staff.
However, under these laws neither the government nor any municipality in the country can impose monetary fines, criminal charges or punitive measures of any kind upon those who violate virus countermeasures. As a result, Japan has relied almost entirely on the compliance of its people — through the use of “soft” lockdowns and voluntary business closure requests — in its efforts to contain the virus.
Earlier this month, the National Governors Association drafted a statement to be submitted next week that demands, among other things, the country’s laws be revised so that municipal leaders can ask local businesses to temporarily close in a more effective manner.
In March, then-Prime Minister Shinzo Abe designated the novel coronavirus a “Category 2 Infectious Disease” under the new influenza special measures law, allowing him to declare a countrywide state of emergency, which was supposed to last one month from April 7 to May 6 but was extended to May 25.
Once a state of emergency is declared, municipal governors can request residents to voluntarily stay indoors and avoid nonessential outings, halt the use of certain public facilities and ask local businesses to temporarily suspend operations.
The essence of the law is that, in times of great danger, the government can limit certain freedoms and constitutional rights to protect the lives of the many. It was inspired by other laws that address natural disasters and military attacks from foreign adversaries.
In its current form, the law allows officials to call on people and businesses to adhere to countermeasures voluntarily. However, proponents of revising the law say that’s not enough to contain a bigger COVID-19 outbreak, in which compulsory or punitive measures will become necessary.
But to revise such a law is a matter of personal freedom and individual rights, said Hiroshi Kasanuki, an expert on medical law as well as a professor at and adviser to Waseda University’s Institute for Medical Regulatory Science.
“Even the slightest hint that an idea or bill or proposed law revision might hinder one’s rights in any way — even for the sake of the greater good — makes it nearly impossible to have a discussion in national politics,” Kasanuki said. “That’s probably why Prime Minister Suga is keeping his distance.”
Any attempt to revise the law, it seems, will be met with strong opposition.
In March, a move to designate COVID-19 as an infectious disease under the new influenza special measures law was successfully passed but not without heavy dissent from the Japanese Communist Party as well as the Japan Federation of Bar Associations, a large lobbying group.
Allowing public officials to deploy compulsory countermeasures would entail a more substantial revision to the law, one that would inevitably spark political opposition in equal proportion. But experts are concerned that, should the situation in Japan escalate, the country might be unprepared.
By luck or by design, the country is yet to suffer a devastating outbreak. As of Tuesday, Japan has recorded over 111,300 infections and more than 1,800 deaths — a fraction of the toll in the United States, Brazil and several Western countries.
How the country managed to avoid disaster continues to baffle experts, but the country’s delayed response and seemingly imprudent countermeasures have drawn criticism domestically and from abroad.
The country’s COVID-19 countermeasures spanning January to July — during which it saw its first major wave of the virus — were “belated but produced good results,” according to a report authored in part by Nomura and Kasanuki that was published in October by the Asia Pacific Initiative, a Tokyo-based think tank.
Critics say a lack of preparedness, vague messaging from officials, low testing capacity and friction between national and regional leaders exposed the shortcomings of the “Japan Model.” And yet, the report said, the country did “the best it could with what it had.”
According to the report, an exclusive interview with Yasutoshi Nishimura, the Cabinet minister in charge of the country’s response to the coronavirus, revealed that the panic caused by Tokyo Gov. Yuriko Koike’s use of the term “lockdown” in March delayed the government’s decision in declaring a state of emergency.
The concentration of power in the central government can cause friction, Nomura said, making it difficult for governors, mayors and other municipal leaders to try to proactively contain the virus or respond flexibly to unexpected situations.
Kasanuki suggested that, in theory, the virus laws could be changed so that officials can designate quarantine zones, much like the evacuation areas or “no-go zones” created in the aftermath of the 2011 Great East Japan Earthquake and the subsequent nuclear power plant disaster.
Using the same method in the area surrounding restaurants or schools could serve as a heavy-handed but effective way to seal off facilities where cluster infections have emerged.
But for such things to be codified into law, lawmakers in the ruling Liberal Democratic Party would likely face resistance from opposition parties, not to mention the difficult task of garnering public support for strengthening a law that limits personal freedoms in times of crisis.
Virus countermeasures during a pandemic should transcend bipartisan politics, said Akihisa Shiozaki, an attorney who co-authored the API report.
“Regardless of political affiliations, lawmakers should be able to have a level-headed discussion about a plan that could save lives,” he said. “I’m confident the people of Japan share my hopes.”
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