Normalizing the state of exception: Japan’s response to COVID-19

Japan's Prime Minister Shinzo Abe. Image: Kim Kyung-Goon / POOL / EFE


This article is a part of OGR's Imagining our Post-Pandemic Futures series on the human rights practice needed for creating a better world during and beyond the COVID-19 pandemic.


The human rights implications of government responses to the COVID-19 virus are finally being highlighted as concerns. The concerns are manifold, in many countries, from the potential suspension of habeas corpus for persons “suspected” of having the virus to overzealous enforcement of quarantines. Most criticisms start from the standpoint that the COVID-19 outbreak is a major health crisis warranting special restrictions on human rights. For example, Article 12 of ICCPR does allow states to take special measures restricting freedom of movement to protect public health. Conceding from the outset that the outbreak is indeed a serious threat to public health already raises the bar for human rights activists, since states have considerable latitude in imposing restrictions in such situations.

The real point, however, is that we are being conditioned to accept this “state of exception” as normal. In the same way that the War on Terror has led us to accept invasive surveillance, restrictions on civil and political rights, xenophobia, and securitization of our everyday lives, the War on COVID-19 is taking us down a road whereby “lockdown” is a legitimate, even common measure in the government toolbox. People who cannot leave their homes cannot organize or engage in public protest. And the pervasive narrative that people who leave their homes without a surgical mask are “selfish” and “putting others at risk” forces us to self-police—very convenient for governments.

Japan is one country where the human rights ramifications may, in the mid to long term, be severe. Japan is an “outlier” with regards to COVID-19; the numbers of cases appear to be very low, and, at least outside of the central business districts, most shops remain open and people are out in the streets. In fact, at the beginning of the international outbreak, the belief was widespread that the government was actively trying to downplay the problem, lest it affect the Olympics, which had been planned to start in July of this year (and in which Prime Minister Abe has invested huge amounts of financial and political capital). Tabloids reported on suspected coverups, while the mainstream press (which operates in an extremely restrictive environment in Japan) played a “Pravda” type role, “fact checking” the “rumours”. In the end the Olympics were postponed anyway, and within days the numbers of reported cases increased dramatically.

After the Olympics were cancelled, the government shifted gear. Existing legislation to deal with influenza pandemics was revised to include COVID-19, enabling the government to declare a national emergency for public health reasons. A public health emergency was declared in accordance with this law shortly thereafter, and it remains in force in Tokyo and some other areas of the country. However, the provisions of the law are relatively soft: mainly, prefectural governors only have the power to request residents to stay home and nonessential businesses to shut, and unlike in other countries, people cannot be penalized for noncompliance.

Some critics cried foul when the law was revised, though, and for good reason. Abe’s main goal has always been Constitutional change—revision of Japan’s postwar pacifist Constitution. Abe’s bullish nationalism and dreams of militarization permeate many of the measures taken under his long premiership, including ramming through legislation making it easier for Japan to send the military abroad in US-led escapades, scrapping longstanding policy prohibiting weapons exports, and attempting to strongarm universities (many of which have pacifist policies in this area) into conducting scientific research for the military. The list goes on and on. And that does not even include the many other measures that give rise to serious human rights concerns, such as secrecy legislation that provides for imprisonment not only of civil servants that leak secret information but also of journalists and private citizens who report on it.

True to form, Abe’s Liberal Democratic Party (LDP) has published a draft revised Constitution, under which any human rights provision could be restricted for the sake of vaguely defined “public interest and order”. In its promotional material, the LDP misleadingly cherry picks text from international human rights standards, claiming falsely that the blanket restriction is in compliance with international law.

However, perhaps the true danger of Abe’s draft is the state of emergency provision. The Meiji Constitution, adopted in 1889 and in force during World War II, allowed for a state of emergency, and its provisions were much abused. Due to that experience, the current Constitution does not provide for a state of emergency—the government simply has no ability to suspend the Constitutional order. Under Abe’s draft revised Constitution, that would become possible with a minimum of parliamentary oversight, and human rights would only be protected “to the maximum extent possible”.

Journalists who have investigated the shadowy right-wing organisations that have close ties with Abe and many other high ranking LDP politicians note that the state of emergency provision is their main priority. Changing the pacifist stance of Japan is not enough—they want destruction of the current Constitution, and the democratic order it provides for. Indeed, Abe himself has wasted no time in using the pandemic to argue that the current Constitution does not provide the government with adequate means to protect the people, and that emergency provisions are required.

Abe’s ambitions notwithstanding, public resistance to Constitutional change has, up until this point, remained formidable. Viewed in this context, the COVID-19 virus may prove to be just the game changer Abe needs. Opinion polls have consistently shown massive public support for stronger government action against the pandemic—indeed, there is widespread dissatisfaction that the emergency declaration did not come sooner. People both on the right and the left are demanding more forceful measures, not the half-baked reaction they perceive to be happening now. Abe probably sees that, if he plays his cards right, the public will be begging him to expand government powers. If that happens, the human rights implications will surely be grave.