Who could have predicted that Japan’s Constitution would be marking its 73rd anniversary, just as the nation is in the midst of a crisis arising from the novel coronavirus?
The COVID-19 pandemic’s assault on Japan signals the harsh reality of an unforeseen crisis unleashing its sudden fury across the nation on an inconceivable scale.
We have become acutely aware of the inadequacy of the Constitution for overcoming a crisis, and must not hesitate to conduct a thorough review and amend it where necessary. Unsurprisingly, more and more members of the Japanese public are expressing interest in equipping the Constitution with a clause that would address emergency situations as they directly suffer from the scourge of the coronavirus.
The Prime Minister Must Lead the Debate
Prime Minister Shinzo Abe, during Diet deliberations on the state of emergency declaration on April 7, said he was in favor of adding an article to the Constitution to deal with emergency situations. Now it is up to the Prime Minister to take the lead in the debate on constitutional amendments that would address emergency situations, as well as clarify the legal status of the Self-Defense Forces.
If we continue to rely on the existing meticulous procedures for crafting laws and governing the behavior of the national and local governments during normal times — rules which stress to the maximum degree the freedom and rights of citizens — on the contrary, the harm to the public could increase from the resulting delays in getting a handle on a major disaster.
Under such an emergency, the government should be able to temporarily centralize authority in order to respond to the actual conditions.
That is the reason why most countries have emergency clauses in their constitutions that include a mechanism for centralizing authority in the hands of the chief executive, be it a president or prime minister. The International Covenant on Civil and Political Rights (ICCPR) (Covenant B) adopted by the United Nations specifically provides for such exigencies.
Such clauses typically allow the national government to establish emergency decrees with the same binding power as law, make emergency fiscal disbursements, and issue orders to local governments.
These emergency provisions normally clearly limit the period a declaration of emergency will be valid and when it will end. Furthermore, emergency decrees and fiscal disbursements made during a period covered by a declaration of emergency will be considered invalid, unless later ratified by the country’s legislative body.
Such provisions ensure that emergency powers are not used to permanently strengthen the powers of the central government. Rather, they are to safeguard the lives and property of its citizens and the functioning of the country’s economy and society, and preserve the constitutional order.
Japan’s Constitution, however, is missing such a provision. On the one hand, Article 54 does state that, if the House of Representatives is dissolved, the Cabinet may, in time of national emergency, convene the Upper House (House of Councillors) in emergency session. However, it does not increase the powers of the government.
On the other hand, certain laws have been enacted to respond to emergency situations under the present Constitution. For example, there are the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response, the Basic Act on Disaster Management, the Act on Special Measures Concerning Nuclear Emergency Preparedness, and the Police Act.
Also, if Japan were attacked, the powers granted the Self-Defense Forces and other government agencies would be expanded under the Civil Protection Act.
The Japanese government has issued declarations of an emergency on two recent occasions: at the time of the Fukushima Daiichi Nuclear Power Plant accident and during the current COVID-19 pandemic.
At first glance, declarations made under these special measures laws appear similar to emergency declarations provided for in the constitutions of many countries. But actually they are not. The Japanese government is unable to take decisive action because our national government’s authority is too weak.
For example, if a disaster is declared under the disaster management act, the conditions under which the government can issue an emergency declaration are strictly limited. That is the reason why an emergency declaration could not be issued after the Great East Japan Earthquake.
Opposition Parties Refuse to Consider Revision
The Meiji Constitution included an article that allowed the government to declare martial law or issue emergency edicts in the event of an emergency that were comparable to the present Cabinet orders. Nevertheless, they were only used for brief periods, such as after the Great Kanto Earthquake in 1923. The Imperial Diet continued to function, even during the Pacific War, debating legislation and passing budgets.
Opinions differ as to whether emergency powers would have been immediately invoked in the face of the coronavirus pandemic, had such an article existed under the present Constitution.
Regardless, the Constitution clearly needs a provision for emergencies. That is because it is impossible to anticipate and tailor laws in advance to fit each and every kind of major disaster we may encounter.
For instance, if Japan were to experience a massive offshore earthquake in the Nankai Trough, an earthquake directly under Tokyo or a nuclear attack, the destruction of local government functions over a wide area would be inevitable.
The Diet has handled the coronavirus poorly, but what would happen if it could not convene at all in the face of a major crisis?
First and foremost, there needs to be sincerity and a willingness to imagine what constitutional powers are required to survive, should Japan face a crisis that is inconceivable today.
The main opposition Constitutional Democratic Party and other segments of the opposition have been irresponsible by refusing to participate in deliberations of the Commission on the Constitution. They admit that debate on such constitutional powers is “not unnecessary,” but illogically claim it is “not urgent.” Without a doubt, this attitude is impeding our ability to go all-out in responding to the current coronavirus pandemic.
Parliaments in some countries are conducting their deliberations online so as to protect representative government, even as they fight the novel coronavirus. However, that is not an option for Japan since Article 56 of Japan’s Constitution states: “Business cannot be transacted in either House unless one-third or more of total membership is present.”
Constitutional reform is imperative, not in the least because of our inability to respond adequately to protect the nation in the event of epidemics, and to accommodate advances in science and technology.
(Click here to read the editorial in Japanese.)
Author: Editorial Board, The Sankei Shimbun