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Editorial: Japan gov't abuse of private rights under revised COVID-19 laws unacceptable

Revisions to Japan's special measures law and infectious disease control law that incorporate penalties for people and businesses that refuse to comply with measures to prevent the spread of the coronavirus have come into effect. The amendments empower prefectural governors to take forcible measures against noncompliant COVID-19 patients and businesses on the grounds of containing virus transmissions. The legal reform marks a turnaround from the previous government policy based on seeking cooperation from the public and corporations.

    During deliberations of the revision bills in the Diet, opposition parties expressed concern over the application of penalties to noncompliant patients and businesses as it can strengthen restrictions on private rights. However, discussions on the issue were wrapped up in a mere four days. Although it had been called into question how far the Diet could clarify ambiguous parts in the proposed revisions, they were enacted while debate was still insufficient and the laws went into force just 10 days after the passage.

    Even though the amendments are aimed at tackling an infectious disease, the act of restricting the rights of citizens' that are guaranteed under the Constitution of Japan should be undertaken with care.

    Of particular concern is the possibility that the penalties stipulated under the revised legislation could be applied without due consideration to the circumstances faced by COVID-19 patients and businesses.

    If a coronavirus patient refuses to be admitted to a hospital without a justifiable reason, they can be subject to a civil fine under the updated infectious disease control law. However, it was shortly before the enforcement of the amended law that the Ministry of Health, Labor and Welfare provided examples of "justifiable reasons."

    Among the examples cited by the ministry were "if nursing or child care to the patient or their family cannot be secured" if the patient gets hospitalized, or "if a patient requires treatment for another disease." However, the possibility of cases where it would be difficult to judge whether patients have a just cause to refuse to be hospitalized remain, such as when they have disabilities. It is essential to pay careful consideration to individual patients' circumstances flexibly.

    It is also necessary to inform the public of their right to be able to file a complaint if they are slapped with penalties.

    If businesses decline to comply with an order to close or shorten their operating hours, they can be subject to a civil fine under the revised special measures law.

    The government has explained that business closures and curtailment of operating hours are necessary to enhance the efficacy of infection control measures. However, many businesses have already complied with those requests under the current state of emergency over the coronavirus that was originally called in January, due in part to a boost in the amount of "cooperation money" paid to compliant businesses.

    There appears to be room for the government to make greater efforts including an expansion of support measures to businesses in accordance with their business size and drops in sales, instead of just resorting to the newly introduced penalties without careful consideration.

    Even if the government is to give an order or apply penalties, it should be decided based on expert opinion over how effective those forcible measures would be in curbing infections.

    The introduction of penalties also raises concern for possible attempts among the public to search out businesses refusing to comply with government orders in a move dubbed "self-restraint policing" in Japan, or for discrimination against COVID-19 patients who are unable to comply with hospitalization orders.

    While the penalties were incorporated into the legislation at the request of the National Governors' Association, authorities must strictly refrain from applying the penalties as if to set a punishment example.

    It is also necessary to pay due attention to the application of "priority measures to prevent the spread of infections" -- which were newly established under the revised special measures law -- so those measures would not be applied arbitrarily. Under the priority measures, it is possible for the government to order businesses in specific areas to shorten their operating hours and give other instructions even if those areas are not covered by the state of emergency. If businesses fail to comply, they can face a non-criminal fine. In spite of such strong measures, the conditions for instituting the priority measures are not clear enough, being only stipulated as "in cases where the spread of infections could hinder the provision of medical care" and when the status of infections is at "Stage 3" (surge in infections) under the government-set four-point severity scale.

    When applying the priority measures, the question of whether it is appropriate to sanction those steps will be put to debate in the Diet. In an additional resolution accompanying the revised legislation, it is stipulated that the application of the priority measures "will be reported swiftly" to the Diet, but notification should be given in advance, just as is the case with a coronavirus state of emergency.

    The government has indicated a policy to apply the priority measures not only before calling the state of emergency -- as it had originally envisaged -- but also after the lifting of the declaration.

    However, talks on the priority measures suddenly popped up during Diet deliberations, and discussion on the criteria for applying those measures and other matters were insufficient. When opposition parties questioned the government over whether the implementation of the priority measures could lead to lowering the sum of cooperation subsidies for compliant businesses, the government skirted around giving a clear-cut answer.

    Osaka Gov. Hirofumi Yoshimura has suggested his intention to have the state of emergency lifted for the western Japan prefecture at an early date by capitalizing on the priority measures.

    The outcome of a simulation analysis shows that if the state of emergency is lifted too early, it could end up triggering a resurgence of infections in a short period of time, adversely affecting the economy.

    Dr. Toshio Nakagawa, president of the Japan Medical Association, pointed out that the priority measures "carry different weight from the state of emergency declaration," expressing concerns over the possibility that the application of the priority measures could end up loosening infection control measures.

    We must avoid a situation where the priority measures are frequently applied just because the governors want to have the state of emergency for their prefectures lifted as soon as possible. The national government ought to make its vision clear about the lifting of the emergency declaration and closely cooperate with local governments.

    Under the latest state of emergency, the daily number of new coronavirus cases has taken a downward turn even though the declaration is non-binding. The central and local governments are urged to bear in mind once again that cooperation from people and businesses is indispensable in combating the coronavirus pandemic.

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