1. Emergency situations and human rights

There is a Japanese proverb that "excess is just as bad as lack." This phrase also applies to the legal system.

We still do not know when the COVID-19 pandemic will end. At the time of writing this article, the collapse of medical care has been reported from all over Japan. The Japanese government has issued a second state of emergency, demanding shorter business hours for restaurants, encouraging individuals to refrain from going out unnecessarily on non-urgent matters after 8 PM, and asking corporations to reduce the number of commuters. It has been reported that the Corona Special Measures Act (hereinafter, "the Special Act"; however, the official name of the act is the "Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response") and the Infectious Disease Control Act will be revised to impose even further restrictions. (On February 3, 2021, the revision of the Special Act and Infectious Disease Control Act was approved through speedy deliberation, and put into effect on February 13, 2021.) However, there are some doubts regarding the effect of such revisions, and political responsibility could become an issue depending on the outcome of realizing policy goals.

The effectiveness of policy is measured by how efficiently and effectively the means achieve the goal. However, unlike authoritarian states, democracies impose legal restrictions on the means available to governments. It is the principle of the Japanese Constitution that individual property rights, privacy rights, physical freedom, and freedom of action cannot be unduly taken away. While it unquestionable that dealing with COVID-19 is an urgent issue, we must also be vigilant so that our haste does not become a doorway to a society lacking freedom.

2. Revision of the Infectious Disease Control Act and penalties

There have been reports that the Ministry of Health, Labour and Welfare is considering making revisions to the Act on the Prevention of Infectious Diseases and Medical Care for Patients with Infectious Diseases (hereinafter referred to as the "Infectious Disease Control Act") to punish people who refuse to be hospitalized. (At a meeting with opposing political parties held on January 28, it was decided that penal punishments would be avoided and administrative penalties (fines) would be imposed.) At the end of December 2020, a Japanese man who returned to Japan from the UK ignored the quarantine period, had dinner with several people, and spread the COVID-19 virus. This unfortunate episode seems to be the reason for the aforementioned revision. Considering how the COVID-19 pandemic has become widespread and there is an increasing sense of crisis among the general public, it is reasonable to criticize the actions of the man in question. However, we must be cautious when changing the principles of law for one exceptional case.

Article 19-(1) of the Infectious Disease Control Act reads as follows: "When a prefectural governor deems it necessary for the purpose of preventing the spread of a Class I Infectious Disease, the prefectural governor may recommend that a patient with that Infectious Disease be hospitalized or recommend to their custodian that the patient be hospitalized in a Designated Medical Institution for Specified Infectious Diseases or a Designated Medical Institution for Class I Infectious Diseases; provided, however, that in an emergency or under other unavoidable circumstances, the prefectural governor may recommend that the patient be hospitalized or recommend to their custodian that the patient be hospitalized in a hospital or clinic other than a Designated Medical Institution for Specified Infectious Diseases or a Designated Medical Institution for Class I Infectious Diseases, as deemed appropriate by the prefectural governor." A representative example of Class I Infectious Diseases is Ebola hemorrhagic fever. A Designated Medical Institution for Class I Infectious Diseases refers to a hospital that is designated by the prefectural governor and has relatively well-equipped facilities.

If a patient fails to follow this recommendation, the prefectural governor may hospitalize the patient at a Designated Medical Institution (Article 19-(3)); however, the hospitalization period shall be limited to 72 hours. The prefectural governor can recommend that the hospitalization period be extended to 10 days (Article 20-(1)). Even if it is necessary to continue hospitalization, the period shall be limited to 10 days (Article 20-(4)). However, this extension requires that the prefectural governor hear the opinions of committee for examination of infectious diseases established at each public health center (Article 20-(5)). Furthermore, it must be noted that procedural guarantees are required as stated in Article 20-(6): "If the prefectural governor intends to make a recommendation under the provisions of paragraph (1), the prefectural governor must give appropriate explanations to the patient or their custodian and endeavor to gain their understanding, and must afford them an opportunity to express their opinions to the official designated by the prefectural governor. In this case, the prefectural governor must give advance notice to the patient or their custodian of the date and time and the place set for such opportunity to express opinions and the facts underlying the grounds for the recommendation."

3. Meaning of sanctions

As a legal term, "recommendations" are generally considered to be non-binding (or weak). However, the binding force of legal terms depends on context. When considering the legal text quoted above, the "recommendations" stipulated by the Infectious Disease Control Act are quite binding. Although there are no penalties for non-compliance, the system assumes almost de-facto compliance. This is the result of trying to find a reconciliation between the high-level public benefit of preventing the spread of infectious diseases (a benefit for each and every citizen) or urgency, and emergency measures of physical restraint. If the recommendations in this context lack sufficient coercive force, the Japanese government should provide the public with evidence of said lack. The national government is responsible for asserting that the use of penal punishment is unavoidable. Changing legal principles in exceptional cases will always be criticized as hasty.

Now, what about penal punishment, administrative punishment, and publication of personal names? In fact, this creates another problem. We do not even need to reflect on the handling of Hansen's disease in Japan to clearly see that publicly revealing that a certain person has contracted a Class I Infectious Disease and that the individual has refused to be hospitalized will result in discrimination and exclusion. If legal sanctions fail, trying to use social sanctions is too much of a stopgap measure. Indeed, these sanctions are similar to the death penalty in that the national government brings an end to a person's life in society. We are deluding ourselves to believe that sanctions other than penal punishment are soft measures. Since Japanese people are extremely sensitive to how they are viewed by others, de facto sanctions often have more severe consequences than legal sanctions. Even administrative punishment does not change the essence of the matter.

Is it appropriate to enact aggressive measures which disrespect individuals in order to realize important policies aimed at preventing the spread of COVID-19? After the spread of COVID-19 has been curtailed, care must be taken not to suffer from the side effects of an authoritarian government. There are countless actions which should be taken before imposing penal punishment.

4. Making haste slowly

The preamble to the Infectious Disease Control Act is as follows:

"In the past in Japan there was groundless discrimination or prejudice against patients suffering from leprosy, acquired immunodeficiency syndrome (AIDS), and other infectious diseases, and those suffering from similar illness. The Japanese public must take these facts seriously and apply them as a moral lesson for the future.

In light of such changing circumstances surrounding infectious diseases and the situation surrounding patients of infectious diseases and other persons placed in similar situations, it is desirable to ensure high-quality and appropriate medical care for such persons and to promptly and appropriately address infectious diseases, while respecting their human rights."

If compulsory hospitalization in conjunction with punishment were to be institutionalized, it would overturn the major premise of the Infectious Disease Control Act. This is a serious dilemma that cannot be resolved through brief discussions. We must not lose sight of reason simply because we are facing an emergency. Japan now faces the danger of repeating past mistakes. Simply passing on policy failures to the Japanese public is impermissible. Although preventing the spread of COVID-19 is a battle against time, we must take care to "make haste slowly." Remember--the crisis which we face is not limited to the invisible enemy of a virus.

Motohiro Hashimoto
Professor, Faculty of Law, Chuo University
Area of Specialization: Public Law

Motohiro Hashimoto was born in Tokushima Prefecture in 1959. He graduated from the Department of Law, Faculty of Law, Chuo University in 1982.
After completing the required course work in the Doctoral Program of the Public Law Course in the Graduate School of Law, Chuo University in 1989, he earned a PhD in Law.
He became Professor in the Faculty of Law, Chuo University in April 2004 after serving as Assistant Professor and Professor at Kochi Women’s University (currently the University of Kochi).
He was appointed as Dean of the Faculty of Law, Chuo University in November 2009 (served until October 2013).
He was appointed as a Board Member of Chuo University in November 2009 (served until October 2013).
He was appointed as Vice President of Chuo University in November 2014 (served until November 2017).
He was appointed as an Executive Board Member of Chuo University in November 2017 (served until June 2020).
His current areas of research and activity include the positioning of individuals and organizations in the Constitution, modern society and freedom of information, and questions concerning the right to enact ordinances.

His major publications include Organizations and Individuals in Modern Constitutions (Fuma Shobo and Shinzansha Publisher); Petit Seminar Constitution 1 (Human Rights) (Hougakushoin); Concise Local Autonomy Act (co-authored, Minerva Shobo); Basics of the Constitution (Hokuju Shuppan); Explanation of the National Public Service Act (co-authored, Hitotsubashi Shuppan); Freedom of Expression: Theory and Interpretations (Chuo University Press); The Constitution of Japan: Second Version (Chuokeizai-sha) and more.

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