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Opinion

Japan's constitution does not need an emergency clause

Future crisis can be addressed through the existing legislative process

| Japan
Almost empty ticketing counters at Narita International Airport in April 2020: Granting any government emergency powers increases the risk of overreaction.   © AP

Jonathan Hafetz, a constitutional law expert, is a Fulbright Scholar and visiting professor at Rikkyo University in Tokyo.

The constitution of Japan, which last month celebrated its 75th anniversary, remains the world's oldest unamended constitution. Proposals to change Japan's constitution, however, have gained traction in recent years.

While they typically focus on Article 9, the peace clause of Japan's postwar constitution, proposals also seek to give the government broad powers to respond to an emergency outside the normal lawmaking process.

The COVID-19 pandemic is often cited as evidence of why Japan's constitution should be amended to include an emergency clause so the government can respond more effectively to a future pandemic, natural disaster, or other crisis.

COVID-19 might, at first blush, support adding an emergency clause to the constitution. A key feature of such clauses is to empower the cabinet to act without the Diet's approval, thus avoiding the delays and complexities of the legislative process.

For a pandemic, this could include mandating lockdowns, limiting freedom of movement and other protected liberties, as well as sanctioning individuals for noncompliance.

But while the introduction of an emergency clause promises easy solutions, those pushing for it also minimize the risks of changing the constitution. Handing the government the power to essentially operate by decree can result in unnecessarily overbroad measures by eliminating the checking power of public discourse and debate; worse, it can lead to government overreaction that undermines constitutional protections.

Emergencies, moreover, are notoriously difficult to define, complicating not only when such exceptional powers should be invoked but also when they should be terminated. Japan's record in addressing COVID-19 undercuts the case for amending its constitution to add an emergency clause.

Japan has recorded the lowest death rate among the 38 nations in the Organization for Economic Cooperation and Development while avoiding the type of harsh shutdowns employed by other states.

Japan's relative success owes a good deal to the government's promotion of behavioral norms such as the ubiquitous "three Cs," avoiding closed spaces, crowded places and close-contact settings, and coordination between national and local governments that produced a largely unified response.

Perhaps most significantly, the widespread mask-wearing and high vaccination rates that helped minimize hospitalizations and deaths in Japan during critical stages of the pandemic were achieved without any formal legal mandate at all.

Commuters walk through Shinagawa station in Tokyo in November 2020: The widespread mask-wearing was achieved without any formal legal mandate at all.   © Getty Images

Still, the Japanese government has resorted to overbroad measures in areas where it has the widest latitude, most notably, in controlling its borders.

For example, Japan's previous decision to deny foreign residents the ability to leave and reenter the country while allowing citizens to do so, a decision that was later revoked, suggests the type of unnecessary and harmful measures a government is prone to adopt when it operates without meaningful constraints.

Adding an emergency powers clause to Japan's constitution would compound this risk by extending such sweeping powers to other areas of governance.

Notably, most other advanced democracies that have emergency clauses, including Germany and France, never invoked them during the COVID-19 pandemic. By contrast, some countries, such as Hungary, seized on emergency clauses in their respective constitutions to achieve other ends, including suppressing political dissent.

While it is unlikely that Japan would misuse an emergency clause in such a manner, granting any government emergency powers increases the risk of overreaction and discourages more calibrated policy responses.

Perhaps the strongest argument against adding an emergency clause to Japan's constitution is that a future crisis can be addressed through the existing legislative process, including by planning for the crisis in advance.

Japan, for example, already had the power to treat COVID-19 as an emergency under its public health laws and has exercised that power since March 2020, when the Diet designated COVID-19 a novel infectious disease.

Further, public health laws can be changed to address new challenges and increase the government's power if necessary. Indeed, this is precisely what happened during COVID-19, as the Diet amended the Special Measures Act in February 2021 to authorize more coercive measures, including issuing orders against businesses that refused to reduce their hours and issuing fines for noncompliance.

In a recent decision, the Tokyo District Court found that the government had improperly employed this authority against Global Dining, a large restaurant chain, because the order to close early could not be justified under the act. Had public officials been operating under the type of emergency clause contained in proposed amendments to Japan's constitution, such coercive measures could have been imposed more widely and with less constraint.

The ability to respond to emergencies through legislation applies to natural disasters as well. Japan already has a framework statute in place which grants the government wide powers to address natural disasters, including through mandatory evacuation and other orders designed to address such situations, and without resorting to an emergency clause in the constitution, which, unlike the statute, lacks any detail for how these powers should be exercised.

In short, an emergency clause may seem like a quick fix: amend Japan's constitution to make it easier for the government to respond to a crisis that can seem unprecedented, if not existential.

Yet, Japan's experience with COVID-19 suggests that more targeted and tailored measures implemented through the legislative process, despite its slower pace and required compromises, will achieve better results than giving the government the power to implement exceptional measures by decree.

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