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[Speaking Out] New Epidemic Shows Need for Emergency Clause in Constitution




The number of people confirmed to be infected with the novel coronavirus that broke out in Wuhan, Hubei Province, China, exceeded 37,000 in China as of February 8, including more than 800 who have died.


The new pneumonia-like epidemic has spread from China to 26 countries and regions, including Japan. The World Health Organization has declared it an emergency.


The Japanese government, based on its Immigration Control Act, made the decision to refuse entry to foreigners who have been in Hubei Province within the past two weeks, and those who have Chinese passports issued in the province. It has also designated the new pneumonia-like virus as a “quarantinable infectious disease” under the Quarantine Act, and as a “designated infectious disease” under the Infectious Diseases Act.


These designations pave the way for health checks on arrival of anyone suspected of being infected with the virus, as well as for work restrictions and compulsory hospitalization of infected patients.



Legal System Constrains Government Measures


Although the decision may have been taken a little too late, the Abe administration should be applauded for taking the unprecedented step of refusing entry to specific foreigners suspected of potentially carrying the infectious disease. The government should also be acclaimed for its efforts to accelerate the implementation of new rules for enforcement of the designations.


However, citizens infected with the novel coronavirus, unlike those infected with Ebola hemorrhagic fever, cannot be quarantined under the Infectious Diseases Act. Therefore, the Japanese government, unlike foreign governments, has failed to mandate a quarantine of Japanese nationals who were brought home from Wuhan using government-chartered flights.


As most of those who returned from Wuhan hoped to stay at government-arranged facilities, eventually they acceded to the government’s recommendation of a temporary quarantine.


Nevertheless, for future purposes, improvement of the legal system may be required for quarantining those at risk of carrying infectious diseases, such as the novel coronavirus. The question is whether the development of new laws alone would suffice.



Constitution Needs Emergency Measures Clause


At the time of the 2011 Great East Japan Earthquake, the government hesitated to restrict the panic-buying of gasoline and kerosene, despite stipulations in the Basic Act for Disaster Countermeasures, and to dispose debris from houses and household goods, due to concerns about constitutional constraints. Constitutional rights, such as the “freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare” (Article 22) and property rights (Article 29), were thought to pose a potential conflict with the proposed measures, even though they were intended for public safety.


We need the development of new laws. But we also need to think about creating a constitutional clause that forms the basis for such laws. This is because some people are expected to question whether any law for quarantining those potentially infected can restrict constitutional rights, such as the freedom to choose or change residences, and the freedom from arbitrary deprivation of liberty.


Regarding the novel coronavirus epidemic, former House of Representatives Speaker Bunmei Ibuki and Japan Innovation Party Secretary General Nobuyuki Baba argued that some emergency clause is required in the Constitution to enable the government to overcome any national emergency and protect the people.


However, Yukio Edano, leader of the Constitutional Democratic Party of Japan, made startling statements that everything necessary to prevent infectious diseases from spreading can be done under the present legal system and that such measures have nothing to do with the Constitution.


The general public at present is beginning to doubt whether everything is alright. Lawmakers should acknowledge that they are gravely responsible for not frankly addressing this common public doubt and begin serious discussions on the need for new laws — as well as amendments to the constitution — for the purpose of protecting the people’s lives and health.


A version of this article was first published by the Japan Institute for National Fundamentals, Speaking Out #655 (Special), on February 5, 2020.


Author: Akira Momochi

Akira Momochi is a director of the Japan Institute for National Fundamentals and a special professor at Kokushikan University.