Prime Minister Yoshihide Suga has expressed his wish to revise the Covid-19 law. The focus is on whether to set penalties for those who refuse to abide by the authorities’ business suspension requests.
The legal ground of the business suspension requests made after the state of emergency declaration last year was Article 24(9) and 45(2) of the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response[1] (‘the Act’), Article 24(9) of which says:
‘[…], the directors-generals of the prefectural headquarters may request [emphasis added] necessary cooperation from public or private organizations or individuals regarding the implementation of the measures against novel influenza, etc. in the area.’
For example, based on Article 29(4), Fukuoka Prefecture, on April 13, 2020, issued a request [2] to suspend certain businesses, including bars, gyms, and pachinko parlors. On April 29, 2020, an additional request under Article 45(2) was made of specific pachinko parlors that continued running business nevertheless. [3]
The problem lies in the fact that requests to these businesses were not enforced because the Act lacked penalties for not abiding by it. The government is said to have hesitated to put a restriction on private rights. It sounds rather curious to see that the Western countries, which are thought to be more sensitive to restricting rights and freedom of the individual, imposed a harder lockdown with a penalty (e.g., fine). [4]
Still, such requests seem to have worked enough to achieve their objective with the help of a relatively high level of compliance and peer pressure in Japan. The term ‘jishuku’ (self-discipline) was often referred to during the state of emergency declared from April 7 until May 25, 2020. If people voluntarily follow the authorities’ requests and its objective is achieved without penalty, it could be an ideal society.
Note:
[1] 新型インフルエンザ等対策特別措置法. The Japanese full text is available here. This Act was initially enacted in April 2012 after the novel H1N1 influenza was spread across the world in 2009 and was then slightly revised in March 2020 to make it applicable to Covid-19.
[2] https://www.pref.fukuoka.lg.jp/uploaded/attachment/110145.pdf
[3] So, the relationship between Article 29(4) and Article 45(2) is a request made of certain industries and a request made of specific businesses (i.e., shops, restaurants…).
[4] For example, see Clause 20 (Offences and penalties) of the Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020. The full text is available here.
However, its downside was also revealed during that period. As there was no penalty at all, it was left to the judgment of the business if it follows a request from the authority. Nevertheless, those who didn’t abide by such requests were sometimes privately punished. For instance, some people were eager to find bars or pachinko parlors open during that period and interfered with their business by posting a bill accusing them and/or spread information via SNS. Such people are called ‘Jishuku Police.’
If the government excessively relies on people’s Jishuku, it could obscure where the government’s responsibility resides. This weakens the rule of law. If we wish certain businesses to suspend their activities temporarily, the law should make it clear. Then, as it restricts their constitutional rights (i.e., the right of establishment), the law should mitigate their loss by providing monetary compensation. This seems to be the logic for the revision.
Disclaimer: While every effort has been made to ensure that the information on this article is accurate at the time of posting, it is not intended to provide legal advice as individual situations will differ. If you do require advice or wish to find out more about the information provided and related topics, please contact the author.
Text by: Atty. Atsushi Miyake of Miyake Law, January 2021.
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