There's a lot of discussion about what's going on w/Japan's response to COVID-19. IMHO many arguments are futile w/o expertise in epidemiology/virology/etc.

But a contribution I feel I can make is to translate Japanese info into English. That's what this thread is for.
/1

Disclaimers
-This is to provide info—I'll ignore policy arguments
-My translations are just possibilities among many
-I have no legal expertise
-No precedents exist to know how courts would rule re: the law

If I give false info/make a clear mistake, I welcome correction.
/2

There's huge interest in what Japan's govt is/isn't doing re: COVID-19. One key is to know what's actually legal. The J gov't has acted re: things it owns (ex: borders) or made requests (ex: for ed. boards to close schools, that ppl stay home, etc).
I checked into the laws.
/3

Q: Why won't the govt ban events/order curfews?
Constitution of Japan:
集会、結社及び言論、出版その他一切の表現の自由は、これを保障する。
"
Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed."
http://www.japaneselawtranslation.go.jp/law/detail/?id=174&vm=04&re=01&new=1
/4

Are there situations where those rights can be abridged?→Legally, no. Then why, for example, can demonstrations be controlled by the police? Because using public roads/spaces requires a road use permit 道路使用許可, and police give that with conditions like route, time, etc.
/5

Back to COVID-19: The law that enhances govt power in a pandemic situation is:
新型インフルエンザ等対策特別措置法
Novel Influenza Etc Special Measures Law
(Let's say SML)
Originally for H5N1/H1N1, the 2020 March 13 revision included COVID-19.
https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?lawId=424AC0000000031
/6

When H5N1/H1N1 hit, there was confusion and local variability in whether schools, daycares, events, etc were closed/cancelled. The National Governors' Association appealed for a legal basis to take necessary actions similar to in disaster situations.
http://www.nga.gr.jp/ikkrwebBrowse/material/files/group/3/2008_5_x14.pdf
/7

In 2012, the Diet passed the SML w/DPJ and Komeito support. JCP and SDP opposed on grounds that it posed possible threats to constitutional rights. LDP abstained in protest amid now-forgotten partisan fighting (they were main opposition party).
There was other opposition too:
/8

Japan Federation of Bar Associations (Nichibenren)=attorneys also opposed, saying it could violate property/constitutional/other rights, that the scientific justification was doubtful, and requirements to invoke the law in abridging rights unclear.
https://www.nichibenren.or.jp/document/statement/year/2012/120322.html
/9

All this background is to emphasize that the Special Measures Law isn't universally accepted/loved in Japan. The authoritarian era up to/through WWII left very strong resistance to giving the govt any legal basis to limit rights. This affects govt handling of COVID-19 now.
/10

One other thing—let's define THE keyword:

要請 / yōsei

I translate it as "request" in this case. But it's a very strong word when coming from govt. Kind of a "Please do X, or we will be very unhappy w/you" vibe. Under the SML, some requests include govt action if refused.
/11

Now for some questions, and the answers I found in the language of the Special Measures Law.

/12

Q: What is the purpose of the Law?

A: Biggest point first:
"To protect citizens' lives and health, and minimize impact on citizens' lifestyles and economy, during the occurrence of COVID-19." (SML covers H1N1 & other illnesses; I'll use COVID-19. Also, brevity > exactness.)
/13

Other purposes include establishment of:
-planning measures
-measures taken upon occurrence
-emergency measures (this is differentiated from the preceding "measures" to indicate actions taken when an official emergency declaration is made)
(All including prefectural govts)
/14

Q: What illnesses are covered under the law?

A: A novel influenza virus to which the population generally lacks immunity, or a previously existing influenza which has been dormant long enough that the population generally lacks immunity to it, or
https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?openerCode=1&lawId=410AC0000000114_20160401_426AC0000000115#76
/15

…"new infectious disease" = "a disease that is communicable from human to human, which clearly differs from known infectious diseases, causes a serious adverse condition, and is recognized to have grave impact on citizens' lives and health if spread."
https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?openerCode=1&lawId=410AC0000000114_20160401_426AC0000000115#76
/16

Before the March 2020 revision of the SML, COVID-19 didn't qualify, so PM Abe requested the revision, and it passed the Diet. Then a cabinet order was issued 14 March 2020 to include COVID-19.
/17

Q: Under what conditions can a state of emergency be declared?

A: First, Minister of Health submits a report of occurrence to the PM, detailing state of infection spread and seriousness of the disease. Then PM sets up a Govt Countermeasures HQ (CHQ).This is in progress.
/18

This CHQ executes a range of govt actions and orders in a declared emergency. Civil servants from designated ministries are assigned to the CHQ and delegated to act on behalf of their ministries' heads. Basically CHQ brings together different bureaucracies for coordination.
/19

Here's the standard for declaring an emergency:
-An outbreak within Japan
-Possibility of "remarkably severe" 著しく重大な damage to citizens' lives and health: The govt order I describe next defines the criteria of what fulfills this remarkably severe situation
/20

Here's the standard for "remarkably severe damage to lives and health" that merits declaring an emergency:
1. Serious cases (pneumonia, multiple organ failure, encephalopathy, etc) are significantly more numerous than normal influenza
https://www.cas.go.jp/jp/seisaku/ful/yusikisyakaigi/dai4/siryou1.pdf
/21

Here are the conditions for declaring an emergency based on "threat of devastating impact on citizens' lifestyles and economy due to nationwide and rapid spread"
1. Patients w/an unclear path of infection
2. Undeniable possibility of spread, even if path of infection is known
/22

Q: How long can a state of emergency last?

A: No longer than 2 years
/23

Q: What is required of citizens under the law?

A: "Citizens must strive to prevent COVID-19 [infection] and strive to cooperate w/COVID-19 measures." You can see the wiggle room—the "strive" or "make efforts to" of 努める is not defined and definitely isn't "must do".
/24

Article 5 is super interesting:
"Considering the need to respect citizens' freedoms and rights, when any limitation is made during a COVID-19 occurrence to citizens' freedoms or rights, such limitation shall be the minimum necessary to implement COVID-19 countermeasures."
/25

So the SML does anticipate possible limitation of rights, but there’s no mention I could find of punishment for individuals, except when they represent a company in a designated business who fails to cooperate with govt orders.

/26

Q: What about curfews?
A: “Governors can request from residents of a designated area, for a designated period, the cooperation necessary to prevent COVID-19 infection, including not unnecessarily leaving their residence or equivalent, except when needed to sustain living”

/27

Conditions under which a governor can request that residents not go out are:
-Declared emergency
-Staying in is needed to protect lives & health, and to prevent confusion of citizens’ lifestyles and economy
-Period of request based on the COVID-19 incubation/recovery time
/28

Q: What is required of entities?
A: Companies, facilities, other orgs (entities) are required more strongly than individuals to follow govt orders. SML says the same "must strive to prevent COVID-19 and strive to cooperate with COVID-19 measures."
However,
/29

Designated entities involved in healthcare, medical supplies, transport, and other key fields, and their representatives, can be penalized for not following govt orders. 

/30

Governors can request that entities doing the following work sell specific goods they own—medical supplies, foodstuffs, or other designated items—to the govt.

-production

-pickup
-sale
-supply
-storage
-transport
/31

If entities refuse such a request, and there is a recognized and immediate need to secure the goods in order to implement COVID-19 emergency measures, the governor can seize the goods.
/32

Entities like these, & their mgrs, can be ordered to limit or cease operations completely:
-schools
-social welfare facilities

-places of entertainment
-events


-any other place people gather
If request is refused, a governor can *order* if it's an emergency need.
/33

Physicians, nurses, and other medical professionals can be requested to give medical care to persons who are recognized as possibly being infected. If they refuse w/o just cause, they can be ordered. Their health & safety must be considered and danger prevented in such cases.
/34

Other stuff:

If entities performing burials or cremations become unable to do that work in an emergency situation, and there is a need to prevent danger to public sanitation, governors are responsible to perform burials or cremations. They can ask municipalities to assist.
/35

Electric, gas, water providers must continue to provide stable and appropriate supplies.


Transportation entities like train lines also must provide transport of people and cargo.

The above is done according to “work plans”—I think govt creates these in advance.
/36

In an emergency, and if the Diet is not in session, etc., the Cabinet can enact postponement or extension of debt payments. Wage payments cannot be delayed, though.
/37

The govt can also take action to force sales of goods needed to sustain life. Price controls can also be enacted. This is modeled on disaster measures law.
/38

Q: What about travel restrictions?
A: The only restrictions were on planes or ships coming into the country and feared to pose an infection risk; operators of these can be asked to limit/not to come.
/39

Q: What about police involvement?

A: Police are only mentioned a few places in the law. Police officials help with prefectural countermeasures HQs, and police can be asked by governors to assist with emergency actions. There is no further detail on what actions.
/40

Note: The Self Defense Forces are not mentioned in the Special Measures Law, at least that I could find.
/41

The govt can request the use of hospitals, clinics, or lodging facilities like hotels if they are required in an emergency for quarantining. If owners/operators refuse, the facilities can be used by govt without consent.
/42

The govt can request land for use in building temporary hospitals, etc, and if owners refuse or are unknown, the land can be used without their consent.

/43

The Bank of Japan can exercise special powers like issuing notes and adjusting financing to maintain credit stability.

/44

Other things addressed in the SML:
-Exceptions to building laws for rapid facility building

-Vaccinating the CHQ people first, if there’s a vaccine

-MHLW can make pharma/medical device sellers sell at rates below below usual govt-set prices
/45

Anyway, my main takeaways are:

-No SML limitations on individual rights appear to be enforceable
.
-Organizations and people who run them can be forced/punished for noncompliance. So business and event shutdowns are very much possible

.

Let's stay safe and be wise.
/End

Ugh, sorry about the weird formatting. I wrote a lot of this in the Notes app on my phone. Haha

P.S.#1
I didn't address road closures. The only mention in the SML of closing roads is for *trainings* that prefectures might conduct in conjunction with planning for an outbreak. In those cases, public safety committees 公安委員会 close roads w/cooperation from 町内会 etc.

P.S.#2
Regarding train closures: The word 運送事業者 covers both passenger train lines and other cargo transport. The only words in the SML are that train lines etc must act to "transport passengers/cargo appropriately" according to plans. No idea if closures are in these plans.

P.S.#2 cont.
Maybe govt could interpret "transport passengers appropriately" to include *not* transporting passengers, to request closure. Also, Train lines/stations are facilities where many people gather, and we know SML (Article 45) has potential closure requests/compulsion.

P.S.#3
Everyone’s kind response to this thread has inspired me to recommit to studying for the Administrative Scrivener 行政書士 exam. Gotta maximize this downtime.

P.S.#4
I haven’t addressed a “lockdown.”

The Japanese word most used for lockdown is 封鎖; it *is not* in the Special Measures Law.

There is no “lockdown” legally available to the Japanese govt.

It can only force facilities/entities to close under strict emergency conditions.

P.S.#5
I didn’t establish w/certainty the legal status of a 要請/request; I characterized it as lacking compulsory power.

Saitama Gov. Ono’s comments on the infamous K-1 event seem to agree: He stated that his 要請/request lacked legal compulsory power.
https://twitter.com/dwvcd/status/1244104016277016576?s=21 https://twitter.com/dwvcd/status/1244104016277016576

P.S.#6
Here’s a great article by @SatoshiJournal of The Japan Times that covers a lot of this, but with much better formatting and good examples of other countries’ emergency powers. https://www.japantimes.co.jp/news/2020/03/29/national/politics-diplomacy/japanese-government-state-of-emergency-coronavirus/