Legal countermeasures against COVID-19 in Japan: effectiveness and limits of non-coercive measures

Abstract

This paper analyzes the Japanese legal responses to COVID-19. Japan did not declare the state of emergency on the constitutional level. In addition, it did not enact a new law and instead amended existing statutes several times to cope with the situation. The paper first introduces provisions of the Novel Influenza Act and Infectious Diseases Acts provisions before and after the February 2021 amendments. The remarkable feature of the Japanese countermeasures was the focus on non-coercive measures. There is no compulsory scheme to ensure “staying at home” for general residents. Regarding the facility managers, the NIA provided for the public announcement of non-compliance of the “recommendation” to ensure effectiveness. The legal nature of such public announcements is disputed in Japanese administrative law. The February 2021 amendments added the possibility of issuing an order whose effectiveness was guaranteed by administrative fines. This paper analyzes the traditional emphasis of “administrative guidance” in Japan and proposes hypotheses as to why open non-compliance cases of facility managers are observed. Concerning patients, prior to the February 2021 amendment, the IDA provided for the problematic legal figures of “recommendation” and “immediate execution”. The Feb. 2021 amendment, which added administrative fines, made the legal figure more complex. COVID-19 countermeasures have highlighted the difficulty of legal control when public behavior change is a policy goal. We must proceed by trial and error and accumulate knowledge regarding legal regulations or governmental messages that effectively affect public behavior. In the process, we should embrace the basic principles of constitutional democracy, such as the democratic legitimacy and accountability of government decisions and the principle of the rule of law. Simultaneously, we must remember that infectious disease control is a matter of human rights and discrimination, especially considering the unfortunate history of infectious disease control in Japan.