The world has been turned upside down by an invisible coronavirus, radically changing society and our lives. We are in the midst of a crisis never before experienced by humankind.
Japan marked Constitution Memorial Day on May 3 as prefectures such as Tokyo and Osaka remain under states of emergency. It is the second consecutive Constitution Memorial Day to be hit by the COVID-19 crisis.
In medical settings, earnest efforts are being made to treat those who have become infected with the virus. Meanwhile, wearing protective masks, refraining from going out, and social distancing have become the new normal.
And still, the spread of infections has not slowed down. Across the world, one in 50 people has been infected, with 3.1 million people losing their lives. In Japan, more than 10,000 people have died from the coronavirus.
Countries are coming under threat from the coronavirus regardless of political systems or regions.
In particular, democracies are facing a serious test. What is being called into question is the difficult problem of how to strike a balance between the “freedom” that is guaranteed to citizens and the “safety” that protects people’s lives.
In the U.S. and Europe, where freedom is usually highly prized, safety was placed first, and lockdown measures were enforced.
According to the “Democracy Index” released by the intelligence unit of the British magazine The Economist, 19 out of 23 democratic countries and regions such as Japan and those in Europe dropped in rank last year when it came to “civil liberties.”
The Italian philosopher Giorgio Agamben has raised the alarm, saying that our society has become one in which we are sacrificing freedom for security.
What about Japan? The government’s response has been one step behind the spread of the coronavirus, and the medical system is in critical condition. Without any outlook for when the vaccine will reach all of the population, the Japanese government was cornered into declaring its third state of emergency.
When one pursues coronavirus countermeasures, one arrives at the issue of constitutionality.
The Japanese Constitution states that the “right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” But for the past year, the debate over coronavirus measures has been insufficient from the standpoint of guaranteeing rights protected under the Constitution.
Don’t requests and orders to temporarily stop operating businesses amount to a violation of Article 29 of the Constitution, which states that “the right to own or to hold property is inviolable”? And wouldn’t that accordingly make businesses eligible for restitution? Furthermore, doesn’t the cutting back of business hours infringe upon the right to operate businesses? Is the right to life, guaranteed under Article 25, which states “All people shall have the right to maintain the minimum standards of wholesome and cultured living,” for those in vulnerable positions being violated? Such points of discussion have simply been left undiscussed.
Under the pandemic, there have been calls to newly introduce an emergency clause into the Constitution to limit the rights of citizens in times of emergencies. But while infection countermeasures are for the “public welfare,” limitations on rights must be kept at a minimum.
The coronavirus special measures law has many problems. One is that a state of emergency can be brought into effect simply by reporting as much to the Diet; there is no need for the Diet’s approval. We have a situation where any kind of request for cooperation from citizens and businesses can easily be enforced through ordinances.
Last summer, after the infection situation had calmed down, the Japanese government and the Diet failed to correct defects in the special measures law, even though they had the time to do so. Ultimately, the revised special measures law was passed with a penal clause in the midst of the third wave of infections, after just four days of deliberations.
Because virus countermeasures have centered on appeals for self-restraint, the possibility of gaining relief through the justice system, in which members of the public can seek damages from the government, has been limited. In France last year, 840 cases of coronavirus-related lawsuits were heard in the Administrative Supreme Court, but the numbers are few and far between in Japan.
To win public understanding regarding the government’s virus countermeasures, it is necessary to secure confidence, fairness and transparency in the country’s politics. The Japanese government must refrain from applying penalties arbitrarily, and the central and local governments must keep their decision-making processes open.
“There is a need to keep a balance between freedom and safety,” says Toshiyuki Munesue, a professor at Senshu University and an expert in constitutional law. “It is important for the Diet to keep an eye out to prevent the Cabinet from doing whatever it wants, and the state from interfering with the individual, using safety as an excuse.”
In order to create a mature democracy, however, in addition to monitoring of the administrative branch by the Diet, efforts by citizens are crucial.
In his book, “Escape from Freedom,” the German social psychologist Erich Fromm analyzed the human psychology behind those who deferred to Nazism. Fromm argued that freedom is only possible through the individual’s spontaneous social and political participation.
Let us take a look at the case of Taiwan, which has successfully curbed the spread of the coronavirus. There, efforts to institute an “open government” reflecting the ideas of the public in the government’s policies have been advanced.
“Instead of the government giving orders, it was the public’s proactive participation in measures that helped stop the spread of viral infections,” says Taiwan’s Digital Minister Audrey Tang.
How do we, instead of having to make a choice between two options, make it possible to pursue both freedom and safety? The strengths of our democratic societies are being put to the test.