Constitution Under Pandemic: Constitutional Issues on the Japanese Method of Responding to the Covid-19 Pandemic and Comparison to the United States

Abstract

In response to the COVID-19 pandemic, governments around the world have taken their own measures. However, the methods have varied from country to country. For example, some countries imposed strong restrictions on the human rights of their citizens to prevent the spread of the pandemic, while others took a softer approach by encouraging their citizens to exercise restraint. The soft approach, in particular, appears to have been relatively effective in limiting the spread of infection. However, this approach carries some problems, such as the fact that it can be de facto coercive. Even though the de facto coercive approach can actually restrict individual rights, courts may still find that this restriction is not coercive and therefore does not violate individual rights. This paper examines the constitutional issues related to Japan’s response to COVID-19. First, it examines the role of the state in charge of public health with regard to COVID-19 and provides three models of responses taken in various countries around the world: the mandatory model, the self-restraint model, and the hands-off model. Then, it focuses on the responses taken in Japan, which has adopted the self-restraint model, and summarizes the measures taken by local governments as well as the problems those measures raise. Finally, the paper analyzes the constitutional problems of the Japanese model, based on a comparison with the U.S. model that uses elements of a mandatory model.

Note: Keigo Obayashi, Takatoshi Tezuka, and Jonathan Hafetz, "Constitution Under Pandemic: Constitutional Issues on the Japanese Method of Responding to the Covid-19 and Comparison to the United States," in Hougaku-Ronshu, Chiba University., vol.37, No. 2, 2022.9. pp.61-86.

Keywords: Constitutional Law, Comparative Law, Public Policy