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With numbers of new COVID-19 cases across the Tokyo region surging to record levels, the government is expected to announce a state of emergency this week for the capital and three adjacent prefectures.

But Prime Minister Yoshihide Suga’s government already has doubts about its effectiveness, and wants the Diet to approve a bill by the start of next month that would revise the 2020 special measures law on infectious diseases.

The revision could strengthen the existing law by levying fines against businesses that ignore government demands to shorten their hours or shut to prevent the spread of infection.

What law would the bill amend?

In March 2020, the government passed revisions to a 2012 law on national actions to be taken in the event of a new influenza epidemic. The revisions basically added COVID-19 to the types of diseases covered by the law.

The government already had measures in place within the law allowing governors to demand that residents remain indoors unless absolutely necessary for a certain length of time when under a state of emergency. The law also allows governors to call on businesses not to hold large gatherings and to request that they shorten their hours of operation.

But the revisions were not backed by legal penalties. As a result, the government allows governors to demand that local businesses undertake novel coronavirus prevention measures, such as shutting down early, but doesn’t give them the power to legally punish those who don’t comply.

Why weren’t legal penalties included in the 2020 revision?

The reasons behind the absence of such penalties are legal and political.

Some legal scholars expressed concerns that an enforced lockdown could violate individual rights as guaranteed by the Constitution. Others argued that Article 13 of the Constitution, which says all people have the right to life, liberty, and the pursuit of happiness, also says that is true “to the extent that it does not interfere with the public welfare.” Their argument was that, in a pandemic, the Constitution allows the Diet sufficient power to protect public welfare with legal measures that ensure compliance with government orders.

Saitama Gov. Motohiro Ono (left); Chiba Gov. Kensaku Morita (second from left); Yasutoshi Nishimura, economic revitalization minister and minister leading Japan's coronavirus response, (center); Tokyo Gov. Yuriko Koike (second from right) and Kanagawa Gov. Yuji Kuroiwa (right) attend a joint news conference after meeting in Tokyo on Saturday. | KYODO
Saitama Gov. Motohiro Ono (left); Chiba Gov. Kensaku Morita (second from left); Yasutoshi Nishimura, economic revitalization minister and minister leading Japan’s coronavirus response, (center); Tokyo Gov. Yuriko Koike (second from right) and Kanagawa Gov. Yuji Kuroiwa (right) attend a joint news conference after meeting in Tokyo on Saturday. | KYODO

But politics is also involved. Levying fines on local businesses like restaurants, bars, nightclubs if they don’t shut down or reduce their hours of operation runs the risk of a political backlash against the government in a general election year. It also raises questions about what the Diet would do to ensure business owners and their employees survive financially if they are unable to stay open as long as they want, or at all.

In drafting the 2020 revisions to the influenza law, then-Prime Minister Shinzo Abe’s government decided to avoid such political, as well as legal, controversies.

Why is Suga pursuing enforcement now?

Constant urging by the national government and local governments for people to avoid unnecessary travel, and for restaurants and bars to limit their operating hours, has failed to stop the spread of COVID-19, especially in the Tokyo region.

In addition, the 47 prefectural governors support revising the law so that compliance with orders for businesses to shut or shorten their hours of operation becomes mandatory.

Last month, the National Governors’ Association recommended that the central government revise the law to include fines against businesses that disobey demands to close or reduce their hours, but also to offer financial assistance to those that follow such directives. In addition, the governors want more local autonomy to take action before a state of emergency is declared by central government.

What is the state of debate on the revisions?

The ruling Liberal Democratic Party and Komeito agree a revision should clearly state that financial support will be provided to firms that respond to prefectural governors’ demands for them to shut down or reduce operating hours.

Pedestrians cross a street in the Shinjuku area of Tokyo on Dec. 12. | AFP-JIJI
Pedestrians cross a street in the Shinjuku area of Tokyo on Dec. 12. | AFP-JIJI

However, there is less agreement within the parties over whether the revision should include mandatory fines for those who don’t cooperate, once again because of the possible political and legal problems that could arise.

Details such as how much violating businesses might be fined, and the process for levying fines, would also have to be worked out.

The LDP has held discussions about such revisions with the Constitutional Democratic Party of Japan (CDP), the main opposition party. The CDP appears to be taking a somewhat cautious stance on the revision bill as a whole. The party indicated Monday it would oppose the government’s plans to include mandatory fines. But it also wants more autonomy for local governors and measures to offer financial support for businesses affected by a state of emergency.

While the LDP had hoped to have the revisions passed by the end of this month, on Monday Suga said only that they would be passed as quickly as possible. The same day, LDP Diet Affairs chief Hiroshi Moriyama said the aim was to have them passed by early next month.

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