COVID-19 measures and human rights guaranteed by the Japanese Constitution [version 2; peer review: 2 approved]

Abstract

Since March 2020, the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response has been a significant statute in dealing with COVID-19 in Japan. The Act mandates requests, instructions and orders for business suspension and shortened business hours, as well as stay-at-home requests. These measures limit freedom of movement and establishment, guaranteed rights under the Japanese Constitution. This article poses the following research question: “Does the Japanese Constitution allow measures against COVID-19 such as requests, instructions and orders for business suspension and shortened business hours, and stay-at-home requests?” It also asks: “Are measures with penalties allowed by the Constitution?” given the fact that the penalties were introduced in February 2021. This paper introduces constitutional concepts that guarantee or limit individual freedom. Concepts that guarantee individual freedoms include freedom of establishment and movement. These freedoms derive from the constitutional values of freedom to choose one’s occupation and choose and change one’s residence (Art. 22) and the right to own or hold property (Art. 29). Concepts that limit individual freedom include the right to life (Art. 13), welfare rights and public health (Art. 25), and public welfare (Art. 13). Individual freedom that threatens right to life, welfare rights and public health, and public welfare may not be guaranteed. This paper argues that the Constitution allows the measures against COVID-19 limiting freedom of establishment and movement from the perspectives of the right to life, welfare rights, public health, and public welfare, and the government is responsible for reducing the risk to life from COVID-19. It also argues that the Constitution permits measures with penalties, while proportionality needs to be considered.