Japanese Government Actions against COVID-19 under the Directives of Constitutional and Administrative Law

Abstract

This paper elucidates the actions of the Japanese government against COVID-19 during the first five months of 2020. On May 25, 2020, the government lifted the emergency declaration passed under the amended Influenza Special Measure Act (ISMA).

This paper argues that the experience of Japanese government action is not unique, but similar to those of other countries. In February 2020, the Japanese government had passed ISMA against severe acute respiratory syndrome (SARS), not COVID-19. The Government hesitated to use ISMA against COVID-19 for political reasons. The government opened advisory boards and chose policy judgment. If a delay in governmental actions led to an increase in the number of serious patients, the governmental inaction was subjected to the State Redress Act and people will change the government in the next election.

The emergence of COVID-19 has compelled Japanese scholars to question the validity of legal principles. Outside of Japan, the New York Times argues that the Japanese constitution should be amended to cope with such an emergency.

This paper is vigilant of the governmental interventions that are carried out in the name of emergency and keeps legal principle under rule of law. An emergency does not allow us to ignore the law; nor does it put the administration above the law. If the emergency is predicted, we can prepare and prevent it with the use of law. If an emergency occurs, we can mitigate damages and recover quickly by interpreting or amending the existing statutes.

The lessons from the actions undertaken by the Japanese government should be shared with other countries that have democratic constitutions. When we start a constitutional and administrative law analysis, the legal and political responsibilities should be distinguished.

Keywords: constitutional law, COVID-19, emergency power, Japan