1.  Japan is a unitary, parliamentary constitutional monarchy. The present Constitution of Japan (CJ) has never been amended since it was promulgated in 1946 and took effect in 1947. ⁵ The Diet (legislature) is bicameral, consisting of: the House of Representatives (HR) and the House of Councillors (HC).⁶ Each House consists of elected members representing all the people,⁷ through mixed first-past-the-post and proportional representation electoral systems. The HR prevails over the HC in central functions of the Diet such as passing the bill and the budget, approving treaties, and designating the Prime Minister.⁸

2.  The Emperor appoints the Prime Minister as designated by the Diet.⁹ The Cabinet is formed by the Prime Minister who is the leader of the political party which wins the general election of the HR. The Liberal Democratic Party (LDP), a conservative party, has kept the power in government since 1955 with few exceptions. The fundamental factor behind the LDP’s long-term power can be found in the conservative nature of the majority of Japanese people. The absence of strong opposition parties has also helped the LDP’s longevity. In addition, the fact that the younger generation has lost interest in politics has also worked in the LDP’s favour. Furthermore, the vote value disparity between urban and rural constituencies favours the LDP, which has a support base in the countryside where the Diet seats have been distributed beyond their proportion of the whole population. The Cabinet is a collegiate body. The Cabinet can dissolve the HR when it considers it necessary to do so, ¹⁰ or it loses the HR’s confidence.¹¹

3.  Constitutionally, the Diet is the sole law-making organ of the State.¹² The Cabinet can enact orders to execute the provisions of the CJ and the law.¹³ To tackle the complexity and urgency of the issues of modern society, it is common that the Diet enacts statutes providing a general framework and fundamental principles and the Cabinet enacts orders to implement statutes. The courts review the constitutionality of any law, order, regulation, or official act.¹⁴ Moreover, administrative guidance without any explicit statutory authorization has been frequently used by administrative agencies to realise their policies. The guidance is not legally binding but useful to persuade or put pressure on the private sector.¹⁵

4.  The Japanese Government is a centralized government but the CJ vests local public entities with autonomy.¹⁶ A local assembly and the executive head of the local public entities are elected by popular vote.¹⁷ There are 47 prefectures which are divided into 1718 cities, towns, and villages.¹⁸ Local public entities have the right to manage their property, affairs, and administration and to enact their regulations within the law.¹⁹ According to Japanese law, local governments are responsible for providing a wide range of public services (public sanitation, school, social welfare, policing, city planning, and construction) and 55.5% of all public expenses are spent by local governments. However, local taxes represent only 33% of local revenue and local governments are highly dependent on fiscal transfers from the central Government.²⁰

5.  The CJ does not stipulate emergency powers (see Part II.A below).

6.  Many services (most notably welfare services) are regulated by statutes but managed by local governments, although the power of local governments is limited because the local government can enact their ordinances only within the law. ²¹ The local governments heavily rely on the subsidy from the central Government as they have only limited tax power. Health protection regulations may confer functions and powers on local governments based on the health law, including the Act on Special Measures against Novel Influenza (ASMNI) (see Part II.A below).²²

7.  The Japanese judiciary consists of the Supreme Court (SC), eight High Courts, 50 District Courts, 50 Family Courts, and 438 Summary Courts. All of the courts have a constitutional review power.²³ The SC is the highest court consisting of a Chief Judge and 14 judges.

8.  The response to the pandemic has not changed the basic constitutional structure of the state.

9.  The CJ has no clause on emergencies. It is not clear that a constitutional state of emergency is possible under the CJ. In the 1950s–1960s, there was a constitutional dispute on how to interpret the absence of an emergency clause in the CJ.²⁴ Some argued that the emergency power exists as unwritten law while others claimed it was a law deficiency. ²⁵ Due to previous experience with its (mis)use under the Constitution of the Empire of Japan, some scholars commend the absence of emergency power provisions as a farewell to the history of wide emergency power.²⁶ There has been another debate on whether it is necessary to amend the Constitution to include an emergency clause. Some views in favour of the amendment argue that it is necessary to have a written clause that can prevent abuse of power in an emergency. Others oppose the amendment by claiming that the ordinary law is sufficient to cope with a state of emergency and a written general clause of emergency power can create an opportunity of abusing power.²⁷

10.  There are several specific laws to deal with a state of emergency: Article 71 of the Police Act 1954;²⁸ Articles 105 and 106 of the Basic Act on Disaster Management 1961;²⁹ and Articles 76 and 78 of the Self-Defence Forces Act 1954.³⁰ None of them can suspend the operation of the legislature and access to courts. Some laws confer a power on the Cabinet to enact a cabinet order to take necessary measures when the Diet is in adjournment, or the House of Representatives is in dissolution, and there is no time either to convoke an extraordinary session in the Diet or to convoke an emergency session of the House of Councillors to take action. In this case, the Cabinet need to seek the approval of the Diet, subsequently, when the Diet is open.

11.  During the Covid-19 pandemic, a state of emergency under the ASMNI was used. The ASMNI was enacted after several outbreaks of novel influenza H1N1 in 2009 to prevent the outbreak and spread of new influenza and to strengthen measures to minimize the impact on people’s lives and the national economy. On 30 January 2020, the Cabinet decided to establish the Novel Coronavirus Response Headquarters at the Cabinet (NCRH), to respond to the Covid-19 pandemic. The Prime Minister was the head of the Novel Coronavirus Response Headquarters, and all the ministers were its members. Later, the ASMNI was amended to consider Covid-19 as the Novel Influenza in the ASMNI.³¹ The NCRH was based on Article 15(1) of the ASMNI from 26 March 2020. The ASMNI allows the Prime Minister, as the head of the NCRH, to declare a state of emergency by defining its period, area, and overview.³² The period cannot exceed two years and its extension is possible for a maximum of one year. The purpose of the ASMNI was to strengthen the Act on the Prevention of Infectious Diseases and Medical Care for Patients with Infectious Diseases 1998 (APID)³³ by clarifying the power of the central and local governments. Article 45 of the ASMNI enables prefectural governors to request residents not to leave their homes, and requests a facility manager to restrict usage of facilities (school, social welfare facilities, entertainment facilities, etc) or to stop an event at facilities. Whilst the original ASMNI did not establish penalty in case of non-compliance, in February 2021 an administrative fine was installed by amendment of the ASMNI.³⁴

12.  Fundamental rights in the CJ can be restricted for the protection of the public welfare although they have never been suspended.³⁵ It is understood by the Japanese courts that the restriction of constitutional rights must be justified by proving that there is a legitimate legislative purpose, and that the measure to accomplish the purpose is rational. Academics argue for a stricter review standard according to the importance of rights.³⁶

13.  Japan is a Contracting Party of eight core United Nations (UN) human rights treaties: the International Covenant on Civil and Political Rights (CCPR) (ratified by Japan in 1979), International Covenant on Economic, Social and Cultural Rights (CESCR) (ratified in 1979), Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (ratified in 1985), Convention on the Rights of the Child (CRC) (ratified in 1994), Convention on the Elimination of All Forms of Racial Discrimination (CERD) (ratified in 1995), Convention against Torture (CAT) (ratified in 1999), Convention on the Protection of All Persons from Enforced Disappearance (CED) (ratified in 2009), and Convention on the Rights of Persons with Disabilities (CRPD) (ratified in 2014). Japan is also subject to the Universal Periodic Review of the UN Human Rights Council. However, it has not ratified any of the treaties’ optional protocols which enable an individual to bring a complaint to the treaty bodies. It has only accepted the enquiry procedure under Article 20 of the CAT and the enquiry procedure under the Article 33 of the CED. Concluding observations made by treaty monitoring bodies sometimes receive the attention of the Japanese media, but their impact is limited. The Japanese Government has shown a tendency to emphasise that the recommendations of treaty bodies have no legally binding effect.³⁷ It has done so to avoid pursuing legal reforms to comply with human rights treaties. Nonetheless, human rights-based non-governmental organizations (NGOs) have been able to pressure the Government by submitting shadow reports to UN bodies that challenge government reports. In addition, the Japanese Government now often offers NGOs an opportunity to provide their opinion about a government report before it finalises the same for submission to a UN treaty body. There is no regional human rights treaty in Asia. The ratified treaties have domestic legal effects although the courts have been reluctant to directly apply them. There is a new trend, whereby the SC refers to the recommendation of the human rights treaty bodies to strengthen its conclusion.³⁸

14.  There has been no formal decision to derogate from any international convention.

15.  Article 3(3) of the ASMNI stipulates that the Japanese government shall endeavour to ensure international cooperation with the World Health Organization (WHO) and other international organizations, as well as with Asian countries and other foreign countries and to promote international cooperation in surveys and research on new strains of influenza, which includes Covid-19 by the amendment of the ASMNI in 2020.

16.  The framework for dealing with Covid-19 consists of two statutes: the Act on the Prevention of Infectious Diseases and Medical Care for Patients with Infectious Diseases (APID) ³⁹ and the Act on Special Measures against Novel Influenza (ASMNI).⁴⁰ The APID has a long preamble that reflects the past experiences of ‘groundless discrimination or prejudice against patients suffering from leprosy, acquired immunodeficiency syndrome (AIDS), and other infectious diseases’ in Japan and emphasizes the importance of respecting human rights. It is important to bear in mind that the APID was legislated to replace the Infectious Disease Prevention Act, which was legislated in 1887. The APID classifies infectious diseases into five categories based on their infectiousness and severity, and defines measures that can be taken by the Government to prevent the spread of infection. The ASMNI was legislated in 2012 after the experience of the 2009 novel influenza (H1N1) pandemic.

17.  On 10 March 2020, a simple Bill to amend the ASMNI to consider Covid-19 as ‘the Novel Influenza’ was submitted to the Diet, to use the power under the ASMNI. The Bill was passed on 13 March 2020. ⁴¹ There was no opposition against the amendment, which enabled the Government to take several measures to declare a state of emergency and to request the people to stay home and close stores (or shorten their opening hours). However, the Government did not have the power to force the people to obey the request.

18.  After the Government experienced difficulties in changing the people’s behaviour—because it did not have an effective measure to do so—it submitted another Bill to amend the ASMNI, the APID, and the Quarantine Act 1951 (QA)⁴² to the Diet on 22 January 2021. This was passed on 3 February 2021. ⁴³ The amendment aimed to strengthen countermeasures against Covid-19 through the following: (1) establishment of new measures entitled Area-Focused Intensive Measures for Prevention of the Spread of Infection (AFIM), including a weaker version of the state of emergency (quasi-state of emergency)—this enabled the Government to take a more targeted and phased approach and governors to request/order business owners to change their business hours; (2) the Government’s responsibility to efficiently support affected business owners and local governments; (3) classify novel coronavirus infectious diseases as ‘novel influenza infectious diseases’ under the APID, therefore allowing necessary measures against other potentially harmful novel coronaviruses to be taken without delay; and (4) the establishment of legal grounds for making requests for home-based and accommodation-based recovery.

19.  The Cabinet can enact cabinet orders to execute the provisions of the CJ and the law.⁴⁴ A cabinet order may establish penalties or rules restricting the rights of citizens or imposing obligations on citizens if delegated by law.⁴⁵ The ministers may establish ministerial orders for the administrative affairs for which they are responsible, to enforce laws and cabinet orders, or based on the delegation of laws and cabinet orders if delegated by law.⁴⁶ According to the official law database, 2075 statutes, 2231 cabinet orders, and 4266 ministerial orders are registered so far.

20.  In general, the duration of a cabinet order is not specified. Because of the amendment of the ASMNI, several cabinet orders were abolished.⁴⁷

21.  Delegated legislation has played a very important role in legislation. It is common for the Diet to legislate the framework and goals. The Cabinet realizes them by enacting orders and regulations. It is a constitutional question to what extent the Diet can delegate legislative power to the Cabinet. In general, the constitutionality of the delegated legislation has been scrutinized by the courts, although the SC has not been active in overturning the delegation of wide discretion to the administrative agencies.⁴⁸

22.  In the case of the ASMNI, many details are concretized by the ASMNI Enforcement Order (cabinet order). ⁴⁹ For example, the enforcement order clarifies what the designated administrative agencies appearing in the ASMNI are. The duration of the cabinet orders is not fixed.

23.  Immediately after the outbreak of the pandemic, several ministries provided detailed guidance on their websites. For example, the Ministry of Health, Labour and Welfare (MHLW) has played an important role in explaining the situation of infection and countermeasures, and providing guidance.⁵⁰

24.  It is not clear what is recommended as advice and what is required by law and order because the latter is mainly law without sanction. Moreover, due to the complex nature of the Covid-19 measures covered by different ministries, there have been some discrepancies or outdated information on their websites. At present the relevant information concerning Covid-19 is gathered in one key website (in 19 languages).⁵¹

25.  The soft approach of the central Government, that avoids legislation to install stricter restrictions on people’s activities, blurs who is responsible for coping with the pandemic. The independent oversight and scrutiny mechanism is not necessarily strong at domestic and international levels. It is constitutionally the Diet that makes laws and oversees the executive. However, under the cabinet parliamentary system, it is the Cabinet that submits the major Bills, and their passage is usually guaranteed by the majority members of the ruling party in the Diet.⁵² When a member of the Diet wants to submit a Bill, the approval of twenty or more members in the House of Representatives and ten or more members in the House of Councillors is required. If a Bill needs a budget, the approval of fifty or more members in the House of Representatives and twenty or more members in the House of Councillors is required (Article 50 of the Diet Act).⁵³ In reality, the Cabinet-sponsored Bills are more likely to pass the Diet (70–90%) while the member’s Bills are less likely (around 20%). This is because the Cabinet Bills are already discussed at the meeting of the ruling party members and get approval among them after necessary compromises are made (pre-scrutiny outside the Diet). Given party discipline, ruling party members of parliament (MPs) do not oppose the Cabinet Bill. This practice makes parliamentary deliberation meaningless because the passage of the Bill is already secured by members of the ruling party and the opinions of members of opposition parties are not considered important to listen to.⁵⁴ This creates an impression that deliberation at the Diet is futile.

26.  There are other reasons to guarantee the high success rate of Cabinet Bills. They are prepared by the bureaucrats of a Ministry which is in charge of drafting Bills. Those Bills are carefully written by the bureaucrats with expert knowledge and experience of the matters with which the Bills are concerned. They also work in coordination with other Ministries whose work is relevant. Moreover, the Cabinet Legislative Bureau (CLB) checks every Cabinet Bill. The CLB is an administrative body that assists the Cabinet on legislative matters. It examines legislative Bills, draft Cabinet orders, and draft treaties, including the constitutionality of the Bills. Therefore, Cabinet Bills are more thoroughly examined and refined, and if there are problems, they are dealt with before the Cabinet Bills are submitted to the Diet.

27.  The Diet is supposed to engage in scrutiny of the Government’s performance chiefly through Prime Minister’s Question-Time (PMQ), submission of questions by MPs for written answers (QWAs), debates on coronavirus-related bills brought to the Houses by the Government, and most importantly, through the functioning of various select committees. However, in reality, the Diet’s role in overseeing the executive has become limited despite some efforts to revitalize the Diet. In 1999, the Act on Revitalization of Parliamentary Deliberations and Establishment of a Politically Driven Policy-Making System introduced the PMQ by referring to the British model.⁵⁵ However, the number of PMQs is limited and the length of time is short (45 minutes). Previous Prime Minister Suga appeared in his first and last PMQ during his one-year as PM—he succeeded Prime Minster Abe in September 2020 when Abe stepped down because of his sudden illness, but was not successful in winning the leadership campaign in September 2021—on 9 June 2021 to discuss important issues including the government response to the Covid-19 pandemic and the feasibility of holding the Olympics despite a surge in Covid-19 infections. ⁵⁶ Present Prime Minister Kishida (from 4 November 2021 onward) has not held the PMQ yet (as of 23 June 2023). The sporadic and not substantial PMQ is far from effective in overseeing the executive.⁵⁷ Furthermore, because of the pre-scrutiny system of the Bill, when it is submitted to the Diet the substantial content of the Bill would rarely be amended. The Diet became a stage where the opposition parties passionately criticize Cabinet-sponsored Bills in vain.

28.  For first amendment of the ASMNI in 2020, it took only four days for the Bill to pass the Diet. Due the urgent need to tackle the Covid-19 pandemic, the Government did not prepare new legislation but amended the existing ASMNI to include Covid-19 in the ASMNI—this was the easiest and quickest way to do so, and no political parties opposed this approach. The second amendment of the ASMNI in 2021 took eight sitting days. One of the controversial points of the amendment was the introduction of a criminal penalty and punishment for: (1) business owners who did not obey the request or order to change business hours, or to close facilities according to the new measures entitled Area-Focused Intensive Measures for Prevention of the Spread of Infection (AFIM); (2) infected people who refused to be hospitalized or ran away from hospitals where they were admitted; and (3) Covid-19 patients who were ordered to cooperate in active epidemiological investigation but refused to cooperate, offering a false answer or hindering or evading the investigations without justifiable reasons. The proposal was strongly criticized by the opposition parties, the Japan Federation of Bar Associations (JFBA), academics, and doctors ⁵⁸ They argued that criminalization would encourage discrimination against infected people, therefore, people would become more reluctant to take PCR tests, which would hinder the investigations. The Government quickly compromised and replaced the criminal penalty and punishment with administrative fines (200,000–500,000 yen, approx. 1843–4607 USD) after discussion between the ruling party and opposition parties outside the Diet.

29.  There are select committees on various themes such as budget, defence, and foreign policy at the HR and HC. Among them, the Budget Committees of the HR and HC can discuss all important matters of national policy as the budget is financially related to the national policy. There have indeed been questions and answers between MPs and ministers in charge, but there is no evidence that they influenced the direction of government policies.

30.  Each House may conduct investigations concerning government policy and practice and may demand the presence and testimony of witnesses, and the production of records.⁵⁹ However, this broad and strong power has been scarcely exercised because the majority of MPs who belong to the ruling party are not willing to investigate issues which may lead to seeking accountability of the government of the ruling party.⁶⁰

31.  When the Prime Minister establishes a Novel Coronavirus Response Headquarters (NCRH), it has to report to the Diet.⁶¹ When the head of the NCRH (ie, Prime Minister) declares a state of emergency, they have to report to the Diet about the length, areas, and details of the state of emergency.⁶² The Prime Minister also reports to the Diet when it extends the length and areas or after the state of emergency is lifted.⁶³ These reports are information without analysis. How the reports are utilized by the Diet is not clear. The length of the state of emergency shall not exceed two years. The extension period shall not exceed one year.

32.  The Constitution also expects the Diet to control and oversee the income and expenses of the Government.⁶⁴ For example, a reserve fund for unforeseen deficiencies in the budget may be authorized by the Diet, and the Cabinet must get the subsequent approval of the Diet for all payments from the reserve fund.⁶⁵ The Diet passed a supplementary budget three times in 2020. The first amounted to 25 trillion yen, half of which was distributed to every resident as the Special Fixed Benefit (see Part V.A.1 below). Each resident could obtain 100,000 yen (approx. 925 USD) on request. One-third was used to support small companies and the tourism industry. The second supplementary budget amounted to 32 trillion yen, mainly for helping small companies, workers, and hospitals. Local governments also introduced their subsidy to support residents and companies. Moreover, 10 trillion yen was allocated for contingency funds for the Covid-19 pandemic without any specific purpose, to prepare for the unforeseeable future. The third supplementary budget amounted to 15.4 trillion yen, one-third of which was allocated for containment measures for Covid-19 to secure the medical treatment system, enhance the testing system, develop a vaccine distribution system, and help local government. On the other hand, 60% was used to promote structural change and positive economic cycles for the post-Covid-19 era. There are now various measures to support the people and businesses affected by the Covid-19 pandemic. The 2021 budget of 106 trillion yen was passed in 2021. To prepare for unexpected changes in the situation, 5 trillion yen was secured for the contingency fund for Covid-19 in the 2021 budget.

33.  The ordinary session of the 201st Diet started on 20 January 2020 and ended on 17 June 2020 as scheduled, although the opposition parties requested the Diet stay open to cope with the pandemic. Then, 120 members of the House of Representatives (467 in total) and 70 members of the House of Councillors (242 in total) requested the Cabinet to convoke an extraordinary session of the Diet according to Article 53 of the CJ, which stipulates that ‘[t]he Cabinet may determine to convoke extraordinary sessions of the Diet. When a quarter or more of the total members of either House makes the demand, the Cabinet must determine on such convocation.’ However, the Cabinet did not respond to the request.

34.  The standing and special committees of each house may conduct examinations even when the session is adjourned if that house votes to do so.⁶⁶ With the resolution, the committees of each House hold meetings or dispatch committee members to various locations to examine or conduct investigations even during closed sessions. During the pandemic, it was agreed that the examination during the closing session would be held once a week. However, neither Prime Minister Abe nor Prime Minister Suga attended the examination during the closing session.

35.  One of the direct consequences of the closure of the Diet was losing the opportunity to question the Prime Minister as the head of the executive. During the Diet session, the Prime Minister had to answer all kinds of questions from MPs relating to the policy and implementation of the measures for Covid-19. However, since 18 June 2020, the press conference of the Prime Minister has not been held, though there were many issues to be addressed, for example: why was the implementation of specific measures such as benefits and grants for small companies and individuals been delayed; should the promotion measure for tourism be implemented as it was planned from 22 July 2020 when a new risk of the second wave was arising; how has the second supplementary budget, which included 10 trillion yen for the reserve fund (Contingency funds for Covid-19), been used?

36.  When Prime Minister Abe resigned due to his health condition, the Diet opened to nominate the new Prime Minister on 16 September 2020 but closed again after two days because it was open only for the purpose of nomination of the Prime Minister. Then, the extraordinary session started on 26 October but closed on 5 December. When the third wave was arriving in December 2020 and it was necessary to discuss the necessity of another state of emergency, the Diet was not open. Therefore, the Diet was not involved in the consideration of the second state of emergency declared on 7 January 2021. The 204^th ordinary session of the Diet started on 18 January 2021. It is hard to provide evidence that the Diet played an important role in the scrutiny and oversight of activities of the executive and ensured people’s voices reflected in the decision-making process.

37.  The Diet did not resort to installing virtual meetings in House or committee meetings although discussions were ongoing because of the preparation for the emergent situation, during which the Diet could not be open because of the pandemic.⁶⁷ The Diet has since been open as scheduled with certain precautions such as wearing a mask, keeping physical distance between individuals, and hand sanitation.

38.  During the period of the first state of emergency declaration (7 April–25 May 2020) many court hearings were cancelled or postponed. This arrangement was decided by the courts themselves to cooperate with the Government’s stay-home policy. The Supreme Court Secretariat published their analysis of that period as a part of the regular study report.⁶⁸ During the period, the courts dealt with only urgent cases: (1) civil cases of provisional seizure or provisional disposition of real estate or domestic violence cases; (2) criminal cases in which defendants were detained; and (3) family cases concerning child custody. The dates for the quasi-jury system (where lay persons participate as judges) were also cancelled in consideration of school closures because of the state of emergency. When the first state of emergency was lifted, the courts started to normalize the situation. During the second and third states of emergency, the courts operated normally with the precaution of wearing a mask and limiting seats of the audience for physical distance.

39.  An online meeting procedure for identifying issues in disputes between the plaintiff and defendant of civil cases was introduced at the intellectual property High Court and eight district courts in February 2020. This was part of the judiciary’s effort to modernize the court procedure, which had been prepared before the pandemic. The usefulness of the web meeting was appreciated during the first state of emergency and all the local courts (in the main branch) started to use it in December 2021.⁶⁹ The utilization of information technology was promoted by the pandemic, although remote hearings are not adopted yet.

40.  Taking legal action itself is not considered a health risk and hence a barrier to access to justice. However, during the period when courts curtailed their activities, the number of cases the courts decided significantly dropped. The number of new cases has also declined.⁷⁰ The JFBA heavily criticized the postponement of criminal trial dates as a violation of defendants’ rights to access court.⁷¹ The SC Secretariat report points out that the role of courts is socially important and the influence of the cancellation is significant, although the courts had no choice but to cancel hearings because they did not have enough knowledge of Covid-19 to decide differently at the beginning of the pandemic.⁷²

41.  There are not any special provisions concerning access to courts to accommodate Covid-19-related disruption.

42.  Courts have review powers over legislation and activities of the executive in a concrete judicial case.⁷³ However, there has been no adjudication to challenge the declarations of a state of emergency. Because many Japanese measures taken in 2020 were based on non-binding requests without penalty, it may not be easy to make a case in court. Therefore, it is significant that the second amendment of the ASMNI and the APID introduced a new measure for the local Government to request business owners to curtail business hours with administrative fines. Since then, local governments have requested business owners to close shops or shorten the opening hours based on Article 45(2) of the ASMNI. If they did not obey the request, the local government could order them to do so based on Article 45(3) of the ASMNI.⁷⁴ They could be fined if they did not obey the order. In fact, most business owners obeyed the orders. On 18 March 2021, when a state of emergency was declared due to the ‘third wave’ of Covid-19, the Tokyo Metropolitan Government issued the nation’s first order to shorten opening hours until 8 pm to 27 restaurants for failing to comply with a request for shorter hours. Twenty-six of these restaurants were operated by Global Dining, a Tokyo-based restaurant chain. On 22 March 2021, the restaurant chain owner filed a damages suit against the Tokyo Metropolitan Government for ordering business hours to be reduced as a public safety measure. ⁷⁵ The plaintiff argued that imposing blanket restrictions without offering evidence that restaurants were a source of infections violated the freedom of business guaranteed by the CJ.⁷⁶ Moreover, it claimed that current subsidies and support for businesses were not sufficient. On 16 May 2022, Tokyo District Court held that the Tokyo Metropolitan Government order was illegal, but it denied compensation.⁷⁷ This adjudication is so far the only one which challenges the power of the executive (local government). The role of the courts has been limited in general during the pandemic.

43.  No election was suspended or delayed because of Covid-19.

44.  The pandemic appeared to have influenced the Cabinet when it decided when to have a general election of the HR.⁷⁸ The term of the HR is four years, but the Cabinet can dissolve the HR before the expiration of its term of office. The date of the previous general election was 22 October 2017 before the pandemic started and, therefore, the term of the HR was supposed to expire on 21 October 2021. As such, Prime Minister Suga had to hold the election before the expiry date. During the third state of emergency (25 April–30 September 2021), the Prime Minister hesitated to use the power to dissolve the HR because he wanted the Cabinet to concentrate on the handling of the Covid-19 pandemic.

45.  The Government and local government took several common measures against the infection such as sanitation at the entrance to premises and for voting devices, wearing a face mask, and the ventilation of the voting stations. The authorities encouraged the electors to use an early voting system by which electors could vote at local government offices before the polling day. Moreover, a special postal voting system was introduced for Covid-19 patients who were required to stay at home or enter a special accommodation facility until they recovered by the Act on Special Provisions Concerning Methods of Voting by Mail for Specified Patients 2021.⁷⁹

46.  Since the pandemic started, individuals, particularly academic experts, institutions, and NGOs rushed to provide information and raise their concerns about the Government’s policies and practices on websites and social media. One of the examples is Nobel laureate Professor Yamanaka, who set up a website.⁸⁰ On the other hand, there is some information on the internet which is not considered accurate.

47.  Taking into account that it requires expert knowledge and understanding to manage Covid-19, the existence of experts in decision-making was essential. Since the outbreak of Covid-19, expert views have been widely relied on by the Government. In early February 2020, the MHLW established an advisory board consisting of medical experts to obtain medical and health expert advice to tackle Covid-19.⁸¹ It was the statement and proposal of the medical experts of the Expert Meeting (EM) that pushed the government to declare for the first time a state of emergency in April 2020 because of their fear of the collapse of medical infrastructure. On 14 February 2020, the EM was established by the decision of the NCRH (see Part II.A above) to obtain advice from a medical viewpoint on countermeasures against Covid-19. ⁸² They considered and analysed data about factors leading to the spread of the virus, to develop advice concerning local control measures, travel, and in particular, to recommend particular courses of action in connection with data analysis. The problem was that it was unclear who bore the responsibility for a declaration of a state of emergency. According to the principle of democracy, it should have been the Government, not the experts who could not be democratically accountable. However, the Government made the impression that it was the EM who made the decision because the Government constantly relied on their views, although the EM was just an advisory body without a legal foundation. Due to the criticism, on 3 July 2020, the Government abruptly abolished the EM and established the Subcommittee on Novel Coronavirus Disease Control (SNCDC) under the Government’s Covid-19 advisory council—the Advisory Council on Countermeasures against Novel Influenza and Other Diseases (ACC)—which had been established in 2012 according to Article 6(5) of the ASMNI (before the amendment in 2021). Later, the Promotion Council on Countermeasures against Novel Influenza and Other Diseases (PCC) was created by the amendment of the ASMNI in 2021. Therefore, the advisory council was replaced by the PCC. The PCC and the SNCDC have direct legal basis in the ASMNI.⁸³ The process of establishing a scientific advisory organ to provide scientific advice, and maintain a proper relationship between the scientific organ and the Government shows the difficulty of democratic accountability and neutrality.

48.  Because of the criticism during the first state of emergency, the membership of the SNCDC was extended to include not only the existing infectious disease experts, but also wider experts including an economist, a lawyer, a journalist, and a local governor. Widening the membership was useful as it was necessary to strike a balance between medical concerns and other economic and social concerns. Each time the Prime Minister held a press conference to declare a state of emergency, the head of the SNCDC accompanied him, to explain the necessity of the state of emergency.

49.  There is no indication of any restrictions on press reporting by the Government during the pandemic.

50.  The minutes of all the meetings of various bodies have been published on the websites of the relevant Ministries. However, because several scientific advisory bodies changed names and legal basis, it is difficult to understand the mutual relationship between the past and present minutes as there is no explanation to understand the mutual relationship between the previous and present bodies. The public criticism—that the decision-making process of the Government was not clear and delayed—relates to how it was considered that the Government should have provided information more efficiently and effectively.⁸⁴

51.  There is no ombudsperson nor national human rights institution, although the UN human rights treaty bodies repeatedly recommend to the Japanese Government that it should establish a national human rights institution.

52.  No special independent reviewer of Covid-19 legislation or policy has been appointed. General and thematic scrutiny has been carried out by standing parliamentary committees.

53.  Japanese public health measures addressing the pandemic can be categorized into three chronological phases. The first phase started with the establishment of the Novel Coronavirus Response Headquarters at the Cabinet (NCRH) without a legal basis at the end of January 2020. The Government’s responses were ad hoc and minimal. The Government chose not to focus on the worst possible outcome and prepare for the pandemic in advance, it instead took a ‘wait and see’ approach, until significant rises in infection occurred. It took considerable time for the Government to change its basic policy from cluster containment to mass PCR testing. The Government had to cope with the first rise of infections (‘first wave’) in late March 2020 by a declaration of a nationwide state of emergency through the Act on Special Measures against Novel Influenza (ASMNI) (7 April–25 May 2020) which did not provide for penalty or punishment for non-compliance. However, the social pressure among the public to use ‘self-restraint’, and the nationwide subsidy (see Part V.A.1 below) of all Japanese residents (Special Fixed Benefit), successfully persuaded the people to keep their physical distance and stay home during the first state of emergency. The second phase began at the end of 2020 with the challenge of new variants of Covid-19. Vaccination started in February 2021 for medical staff, from April 2021 for elderly people, and from May 2021 for the rest of the population. On the other hand, the amendment of the ASMNI in March 2021 added penalties for strengthening enforcement. The amendment also adopted a quasi-state of emergency to respond to a situation that did not amount to a state of emergency but needed to be tackled because of the high risk of spreading disease. During the second phase, the second state of emergency (8 January–21 March 2021) was declared to cope with the rise in infections in January. Furthermore, the quasi-state of emergency started on 5 April 2021 for precaution and some prefectures installed the third state of emergency on 25 April until 20 June 2021. However, the fourth state of emergency started on 12 July 2021 in some prefectures, including Tokyo which ended on 30 September 2021, while other prefectures were under the quasi-state of emergency until 30 September 2021. The Tokyo Olympics and Paralympics were held under the strict ‘bubble’ policy during the state of emergency. The third phase started with the increase in infections due to the Omicron variant in late December 2021. The daily new infections rapidly increased from 50–100 new infections (in mid-December) to 105,591 (in 5 February 2022), but the hospitals managed to handle the situation. The Government used a quasi-state of emergency (9 January–21 March 2022) to cope with the new variant.

54.  The Government introduced a five-tier alert system that identified the level of risk posed by the pandemic by using various indexes: new infections, positive rate of PCR testing, hospital bed occupancy rate, hospitalization rate, the number of people who were treated at home, the number of seriously ill people, etc. Each prefecture set their alert system by referring to the central government system. On 8 November 2021, taking into account that the vaccination coverage exceeded the 70% rate, the SCN proposed a new classification for identifying the level of risk posed by the pandemic. The classification put more weight on the capabilities of the hospital to cope with Covid-19 patients rather than the infection number. The five levels were: ⁸⁵

• •  Level 0 — No new infections of Covid-19

• •  Level 1 — General medical care and medical care for Covid-19 patients was sustainable.

• •  Level 2 — New infections started to increase and they had become a burden for medical care, but medical care was available for the people who need it by increasing the number of beds available. Because level 2 could easily move to level 3, it was important to take a vigilant attitude by observing various indicators.

• •  Level 3 — Without a substantial restriction of general medical care, medical care for Covid-19 would not be available. Strengthening countermeasures were necessary.

• •  Level 4 — Even restrictions of general medical care could not make it possible to provide medical care for Covid-19 patients.

55.  The Government’s focus in the early phase was to detect and contain infections. Their ‘counter-cluster’ approach was intended to stop the infection by finding the origin of the infection through a thorough epidemiological investigation and requesting the people who had been in close physical contact with infected people to stay home. This process was initiated by reports from medical doctors who treated the patients and found them positive by PCR testing. In the early phase, PCR testing was not widely available for people who wanted to take a test as they had suspected symptoms of Covid-19. The Government and some experts explained that mass-testing triggered a risk of medical collapse at hospitals. However, the counter-cluster approach became ineffective and infeasible when the rapid increase of infections occurred and overwhelmed the health centres which were in charge of cluster searching. Moreover, it was criticized by other experts that it was impossible to understand the reality of the pandemic in Japan and to plan appropriate measures without mass testing.

56.  On 15 January 2020, the first case of Covid-19 was confirmed in Japan. On 30 January 2020, the Government designated Covid-19 as a specified infectious disease and set up the Novel Coronavirus Response Headquarters (NCRH) when the WHO found Covid-19 to be a public health emergency of international concern.⁸⁶ On 13 February 2020, the NCRH published the Emergency Countermeasures against Covid-19.⁸⁷ On 25 February 2020, the NCRH presented the Basic Policies for Novel Coronavirus Disease Control (BPNCDC) that became the general policy framework.⁸⁸ Its primary aim was to end the epidemic in its early stages through measures to prevent the spread of infection while suppressing the rate of increase in patients as much as possible and minimizing the scale of the epidemic. Its central measures were to provide information and to request the general public to take appropriate measures such as physical distancing and staying home. None of these measures included drastic measures, such as general border controls and/or curfews, but instead concerned voluntary self-restraint. On 10 March 2020, the Government issued the Basic Policies for Novel Coronavirus Disease Control (see Part II above) to add some measures including financial aid and school closure.⁸⁹

57.  On 28 March 2020, the Novel Coronavirus Response Headquarters (NCRH) set out the Basic Policies for Novel Coronavirus Disease Control (BPNCDC) which was based on Article 18 of the ASMNI to provide a unified guideline.⁹⁰ The BPNCDC has been constantly updated according to the changing situation. The local governments set out their basic policies following the BPNCDC to implement local government measures. For example, the Tokyo Metropolitan Government set a similar alert system which was monitored by seven indicators with the help of medical experts. Based on the BPNCDC, the Government provided overall coordination regarding measures to be implemented by administrative agencies and local governments.⁹¹ Since March 2020 the NCRH repeatedly revised the Basic Policies for Novel Coronavirus Disease Control to adjust to the situation. On 19 November 2021, the NCRH published a new Basic Policies for Novel Coronavirus Disease Control after the daily infection number decreased to the level of 100–150 new infections per day in mid-November. ⁹² The latest version was published on 10 February 2023.⁹³ Taking into account that the infectiousness and severity of Covid-19 were weakened, Covid-19 was repositioned from ‘new influenza and other infectious diseases (equivalent to Class 2)’ to Class 5 infectious diseases on 8 May 2023 and the BPNCDC was abolished.⁹⁴

58.  No current law can force people to stay at home in Japan. A specified prefectural governor can request a person to refrain from unnecessary outings and stay home but there is no penalty for non-compliance.⁹⁵ In the Prime Minister’s speech upon the first declaration of a state of emergency, he asked people to refrain from going out to achieve a 70 to 80% reduction in opportunities for person-to-person contact and to follow a physical distancing policy of avoiding the ‘3-Cs’ (closed spaces, crowded places, and close contact with people) for a period of one month.⁹⁶ The declaration of a state of emergency had a symbolic effect on the Japanese people, combined with the restriction on restaurants and some sports and events facilities. According to research, human flow control is effective to a certain extent in deterring infection. According to the BPNCDC, the Government requested people to refrain from unnecessary outings after 8: 00 pm and, when it was necessary, to go only with family members or close friends, to avoid crowded places and periods, and avoid restaurants which were not compliant with the guidelines and the Government’s request of closing and shortened opening times. Moreover, specific prefectures could ask bus and subway operators to stop their services earlier (8–32 minutes earlier) and to conduct temperature checks at major terminals.⁹⁷

59.  Another factor that controls the human flow is social pressure. The number of infections in cities was higher than in rural areas. Therefore, it is reported that people who lived in cities (for example, students and young couples) were told by their parents, who lived in the rural area, not to come back home during states of emergency even if it was the New Year holiday season (it is a custom to visit parents on New Year’s Day) as they worried that their neighbours might have felt uncomfortable seeing their children come back from big cities where infection numbers were higher.

60.  Restrictions on international travel were the harshest measures among the Japanese Covid-19 public health measures. Foreign nationals who stayed in any of the listed countries/regions within 14 days before the application for entry were denied entry into Japan according to Article 5(1)(xiv) of the Immigration Control and Refugee Recognition Act (interests or public security of Japan) unless special exceptional circumstances were found.⁹⁸ In brief, foreigners could not enter Japan unless they were permanent residents or spouses or children of Japanese nationals. The people entering Japan (including Japanese nationals) had to obey various requirements such as providing negative test result certificates, testing upon entry, two-week quarantine (either at home or in special accommodation), and submitting personal data (such as address, email address, mobile phone number, health conditions, etc) to authorities. An MP questioned the legal basis of the requirements at the House of Representatives,⁹⁹ and the Government claimed they were based on the Quarantine Act.¹⁰⁰ Moreover, the Government limited the number of foreign nationals who could enter Japan to 5000, which slowly increased to 50,000 until the cap was abolished on 11 October 2022. From 11 October 2022, visa exemption arrangements have been resumed and suspension of visa validity under the border measures has been also lifted, and from 29 April 2023 all travellers and returnees will no longer be required to submit either a certificate of negative test result of Covid-19 test within 72 hours prior to departure, or a valid Covid-19 vaccination certificate of three doses or equivalent.¹⁰¹ These measures need to be examined from a legal perspective, although there is no court case challenging the legality of measures. Due to the very strict restrictions, the number of foreigners who entered Japan during the pandemic plummeted: 4.31 million in 2020, 0.35 million in 2021, and 4.21 million in 2022 (compared to 31.2 million in 2019).¹⁰² The impact on the travel and hotel industries was very severe.

61.  The first quarantine started with an international cruise ship carrying infected passengers on 4 February 2020 at Yokohama Port, an hour by train/car from Tokyo. There were 2,666 passengers and 1,045 crew members from 56 countries, for a total of 3,711 people on board. A total of 712 people were confirmed as Covid-19 positive.¹⁰³ On 6 March 2020, the Government started to quarantine people who entered Japan from China and South Korea for two weeks. On 10 March, the Government decided to refuse entry to foreigners who had recently visited China, South Korea, Iran, Italy, and San Marino. On 24 March, the Government expanded the list of countries to include 18 European countries when the postponement of the Tokyo Olympic Games was decided. Moreover, Japan became the only G7 state which did not include general exceptions for long-term residents in its entry restrictions. Later, the Government permitted some exceptions—those who left Japan before the current restrictions came into effect and who were holding permanent residency or spouse visas—because of strong criticism and petition.¹⁰⁴ The number of countries/regions subject to denial of permission to enter Japan amounted to 159 when Omicron variant infections increased at the end of 2021.¹⁰⁵

62.  Due to the rapid increase of Omicron variant infections at the end of November 2021, the Government prohibited new entry by foreigners and installed the severest restrictions thus far in the pandemic. All of the people returning from abroad had to complete self-quarantine for seven to 14 days at home, which was observed by the application which returnees were obliged to install on their mobile phone—if they did not have a mobile phone, they had to rent one at the airport. The people returning from countries or areas which were listed as having a high number of Omicron variant infections had to stay at the special accommodation prepared by the Government quarantine station, free of charge. The denial of landing that had been placed on all the countries/regions was lifted on 4 September 2022.¹⁰⁶

63.  Restrictions on international travel for Japanese nationals did not exist. When they returned to Japan, nationals were required to obey the same rules which applied to all passengers arriving from abroad.

64.  No laws restricted internal travel within Japan, however, the Government’s request to stay home combined with social pressure made people refrain from making long-distance trips without a very urgent necessity (see Part IV.A.1 above).

65.  During a state of emergency, based on Article 24(9) of the ASMNI, specified prefectures could request the event organizers to hold events according to specified conditions: 5000 people at maximum; 50% of the capacity of a facility; closing at 9: 00 pm; and taking measures to ensure participants comply with the Government’s guidelines.¹⁰⁷ Later, this was slightly mitigated—when the organizers submitted an infection prevention safety plan to the prefecture and obtained recognition from the prefecture, they could hold an event of 10,000 people at maximum and use 100% of the capacity of a facility.¹⁰⁸ During a quasi-state of emergency, based on Article 24(9) of the ASMNI, the prefectures could request the event organizers to hold events according to the specified conditions: when the organizers had submitted an infection prevention safety plan to the prefecture and obtained recognition from the prefecture, the number of the people they could gather was the capacity of the facility they wished to use.¹⁰⁹ The prefectures also asked the organizers to avoid the ‘3-Cs’ (see Part IV.A.1 above) at their events, keep physical distance between participants, that participants wear masks, to observe the physical condition of participants, and to keep a list of participants. In fact, during the first state of emergency, many sports and music events were postponed and cancelled. People also refrained from public gatherings because of the fear of infection or due to social pressure (see Part IV.A.1 above).

66.  There was no direct legal limitation on private gatherings other than the Government’s request (without penalty) to stay home and refrain from meetings other than with family members and close friends. However, people voluntarily lessened or stopped meeting people who did not live with them because of self-restraint due to social pressure (see Part IV.A.1 above).

67.  In May 2020, the Tokyo Metropolitan Government conducted patrols in Kabukicho, Shinjuku, one of the most popular downtown areas in Japan, to alert people to the fact that there were conspicuous cases of young people being infected with Covid-19 in the downtown area. Similar efforts continued on Thursdays and Fridays in other large downtown areas in Tokyo.¹¹⁰

68.  Article 45 of the ASMNI enabled prefectural governors to request a facility manager to restrict usage of facilities, including opening hours (school, social welfare facilities, entertainment facilities, etc) or stopping an event at facilities. At the beginning of the pandemic, the ASMNI did not have a clause to charge a penalty in case of non-compliance. However, during the first state of emergency, most shops and restaurants voluntarily closed, while museums and schools (including universities) were closed. Repeated and prolonged states of emergency without penalty sometimes created a situation where some people did not comply with the Government’s requests. In 2021 an administrative fine (300,000 yen or less) was installed by the amendment of the ASMNI when a facility manager did not close or limit the opening hours.¹¹¹ There is one court case challenging the legality of the order by the Tokyo Metropolitan Government (see Part III.C).

69.  At the beginning of the pandemic (before the first state of emergency), all elementary schools, junior high schools, high schools, and special needs schools were closed according to the request of Prime Minister Abe as the head of the NCRH, from 2 March 2020 until the beginning of the spring holiday.¹¹² No provision in the ASMNI allowed the Prime Minister to make this request and the notice did not clarify the legal foundation, but it can be argued that Article 20 of the School Health Safety Act was the legal foundation.¹¹³ Therefore, the closure was made at the individual discretion of the local Board of Education or, in the case of private schools, the Board that managed the school, based on the request of the Prime Minister. The closure was extended until the end of May. A full reopening of schools, with social distancing guidance in place, occurred from June 2020. The sudden closure of the schools created a difficult situation for working parents (particularly essential workers) who were not at home or who were working online at home, and did not have enough space or facilities. Many schools started to introduce a new method of online teaching, the quality of which is yet to be assessed. However, some teachers raised concerns that online teaching widened the gap between students who had their own personal computers and parents’ support and students who did not.¹¹⁴ Universities were also closed during the first state of emergency. Afterwards, they introduced online teaching. Since then, given the high impact of school closures, no steps were taken to close down entire schools in Japan. Moreover, the annual entrance examinations of universities and high schools between January–February 2021 were conducted as usual. When the third state of emergency started, the Minister of Education announced that it did not require schools to close, but each school had to decide what measures were appropriate according to the specific situation of each school.¹¹⁵

70.  During the state of emergency, based on Article 45(2) of the ASMNI, the prefectures requested restaurants which sold alcohol and were equipped with karaoke to close, and requested other restaurants to shorten opening hours (until 8: 00 pm). ¹¹⁶ Moreover, the local Government introduced a certification system in which certain restaurants could put a sign at the entry, portraying them as recommended facilities, when they complied with the government-recommended standards (‘3-Cs’). Specified prefectures could request restaurants and customers to avoid a group of more than five people at the same table. However, if the restaurant was a certified restaurant, and every member of the group tested negative, a group of more than five people could eat together.¹¹⁷

71.  The prefecture requested that other facility operators reduce their operation hours when the floor area of the facility was expected to be used by many people and exceeded 1,000 square metres. ¹¹⁸ The Government and specified prefectures encouraged businesses to enable employees to work from home to curtail the number of employees at the office—the Government’s goal was a 70% reduction—and to introduce preventive measures against infections.¹¹⁹

72.  Parks were not closed during the state of emergency and quasi-state of emergency. However, visitors to parks were requested not to drink alcohol, not to eat together with a large group of people, and not to use it for TV filming.

73.  There was no legally mandatory physical distancing requirement between members of the public. The Government and experts, however, repeatedly emphasized the importance of avoiding the ‘3Cs’ (see Part IV.A.1 above) which was accepted by the public and private sectors.

74.  There was no mandatory usage of face coverings. However, wearing a mask for a cold and pollen fever was a well-established custom before the outbreak of the Covid-19 pandemic. Therefore, it was not a problem to request people to wear a mask. The problem was a severe shortage of masks and personal protective equipment (PPE) at the beginning of the pandemic. Once physical distancing and, in particular, wearing a mask became socially mandatory, masks rapidly disappeared from the stores in early February 2020. The Government decided to distribute two washable gauze masks per person (costing 26 billion yen) by postal mailing. However, this measure was heavily criticized because of its slow delivery and poor quality—the size of the mask was too small for some adults to fully cover a mouth and a nose, and some complained of stains, bugs, and mould on masks. ¹²⁰ Even the Prime Minister himself stopped wearing it in August 2020, when non-woven masks came back to the market.

75.  Another problem that occurred in the first wave of Covid-19 (April–May 2020) was shortage of the protective personal equipment (PPE). Many hospitals which were in charge of taking care of Covid-19 patients could not secure PPE and had to find alternatives such as plastic trash bags and portable raincoats. The national Government could not provide PPE and even a local government mayor asked residents to donate unused portable raincoats.

76.  From 13 March 2023, the Government’s recommendation regarding wearing masks was eliminated, including indoors (except for medical institutions), and it was up to each individual to decide for themselves when to wear a mask and when to remove it. Most people, however, continued to wear masks until it became unbearable to wear masks because of the hot and humid summer of 2023.

77.  Prefectural governors could recommend hospitalization for patients infected with the novel coronavirus who were defined by the ministerial ordinance as being at risk of serious illness, such as those 65 years of age or older, or those with respiratory illness.¹²¹ Prefectural governors may also request patients who are not subject to a recommendation for hospitalization to cooperate in overnight care or home care (Article 44-3(2) of the APID). As a general rule, infected persons were asked to refrain from leaving the house for seven days, and persons in close contact with them were asked to refrain from leaving the house for five days.

78.  The prefectural governor could order hospitalization measures if a recommendation for hospitalization was refused or a request for cooperation for overnight or home treatment was refused.¹²² In February 2021, the APID was revised so that a fine of up to 500,000 yen could be imposed on an infected person who refused to be hospitalized or fled from the hospital. ¹²³ The supplementary resolution states that: to ensure smooth operation in the medical field, the procedure should be presented in an easy-to-understand manner; the materials for judging the suitability of application of the ordered hospitalization should be presented as clearly as possible, including specific examples of application; and consideration should be given to the maintenance of the life of the person, their children, and the elderly, including the conditions of accommodation facilities and the home of the infected person, as well as the necessary measures to be taken.¹²⁴ No such actual case has been reported.

79.  Since Covid-19 was re-classified as Category 5 disease on 8 May 2023, the isolation measures have been terminated and there is no longer a request to refrain from leaving the house, and no longer a restriction on employment. In addition, persons in close contact with an infected person are no longer identified as ‘concentrated contacts’ and are not required to refrain from leaving the house.

80.  In the early phase of the pandemic, PCR testing was not available for people who wanted to take a test when they had suspected symptoms of Covid-19 because of the Government’s ‘counter-cluster’ approach (see Part IV.A.1 above). Kato, the Minister of Health, Labour, and Welfare, revealed at a Lower House Budget Committee meeting on 26 March 2020 that the number of tests for Covid-19 conducted between 18 and 24 March 2020 (seven days) was approximately 6,300, averaging about 900 per day. The Government had explained that a maximum of approximately 3,800 tests could be conducted per day, but the actual number conducted was much lower than that. ¹²⁵ The Government and some experts explained that mass testing risked triggering a medical collapse at hospitals. However, because of strong criticism (see Part IV.A.1 above), the Government changed this approach and started to make efforts to increase the number of tests conducted. As of September 2020, the number of PCR tests conducted was about 20,000 per day.¹²⁶ The reason for the lack of growth in the number of tests was that testing had been limited to only those with symptoms and those in close contact with infected people, and there was no facility (like a PCR testing centre) where the people could easily get tested. With the accumulation of efforts to increase the amount of testing, the number of tests finally reached 180,000 per day in August 2021.¹²⁷

81.  Vaccines were a critical measure in the fight against Covid-19. Despite the fact that the Government announced that it had secured enough vaccines for the whole Japanese population—the Government purchased 928 million doses in total for a population of approximately 125 million—the process of vaccination proceeded very slowly in comparison to other G7 countries.¹²⁸ As of 29 April 2021, when other G7 countries reported that 50–60% of their whole population had received at least one dose, in Japan only 1.8% of the population had received at least one dose. As of 29 April 2021, the total number of vaccine doses administered was 3,225,464: 3,109,740 were healthcare professionals (2,158,250 1st doses and 951,490 2nd doses) and 115,724 were elderly people (115,724 1st doses).¹²⁹

82.  The approval process of vaccines took time in general. Pfizer’s vaccine was approved by the Government on 14 February 2021 and Moderna and AstraZeneca vaccines were approved on 5 May 2021.

83.  The Government prioritized vaccination in the following order: healthcare workers, the elderly, and others. Priority inoculation of healthcare workers (approximately 4.8 million people) began on 17 February 2021 and was completed on 23 July 2021. Priority vaccination of the elderly (approximately 36 million people) began on 12 April 2021. As of the end of July 2021, it was estimated that about 80% of the elderly had been vaccinated twice, almost achieving the goal of inoculating twice the elderly who wish to be inoculated. As of the end of November 2021, 76.9% of the total population had been vaccinated with two doses of the vaccine.¹³⁰

84.  From 1 December 2021, the opportunity for a third vaccination was offered to all persons who had completed the initial vaccination up to the second dose (first for those 18 years of age and older). From March 2022 (or from the end of February 2022, depending on local government preparations), children (5–11 years old) were offered the opportunity to receive vaccinations. From 25 March 2022, a third dose was offered to those who were 12 years old or older and 17 years old or younger. From 25 May, a fourth dose was offered to those 60 years of age and older, and to those 18 years of age and older who had an underlying medical condition or who were considered by their doctors to be at high risk of serious illness. From 22 July, opportunities to receive a fourth dose were offered to healthcare workers aged 18 and older and workers at facilities for the elderly. Beginning 20 September 2022, the programme offered the opportunity for Omicron strain-compatible vaccination to all persons 12 years of age and older, who had completed their initial vaccination up to the second dose. The programme started first with those eligible for the fourth dose of vaccination who had not yet received it. From 24 October, infants (six months to four years old) were offered the opportunity to be vaccinated. From 8 March 2023, children (five to 11 years old) who had completed their first vaccination up to the second dose were also offered the opportunity to be vaccinated against the Omicron strain.¹³¹

85.  The total number of vaccine doses administered is 405,647,162 (as of 1 August 2023). Of the whole population, 79.9% has received their second dose of the vaccine and 68.7% the third dose. Of elderly people, 92.6% received their second dose, and 91.5% their third dose.¹³²

86.  The decision to vaccinate was left to the individual. Before the vaccination, the intention to be vaccinated was confirmed by a medical questionnaire, and at the same time, the physician conducted a medical interview. This was based on lessons learned from past vaccination lawsuits.¹³³

87.  The Government requested platformers and telecommunications carriers to provide anonymized user location data and service use histories, and then processed the data to show the increase/decrease of the flow of people. Some local governments distributed a QR code to restaurants and stores. Customers of the restaurants and stores could ‘check in’ via the QR code when they visited restaurants and stores. The data concerning the place and date of their visit (without names) was sent to the local government. The Public Health Centre then sent a notice to a user of the QR code to ask the user to contact the Public Health Centre when the Centre found there was the possibility of close contact with an infected person who used the same facility at the same time.¹³⁴

88.  The Government asked the public to install the contact-confirming application (COCOA). The COCOA was a smartphone application that enabled a person to receive notifications about the possibility of contact with someone infected with Covid-19. ¹³⁵ The application used the short-range communication function (Bluetooth) on smartphones upon user approval to receive notifications about the possibility of contact with a person who had tested positive for Covid-19. Contact records remained in the device only and did not leave the device. Where, when, and with whom there was contact was not known by either side. Contact information, location information and other information that could identify the individual was not recorded to ensure the protection of privacy. Installing the COCOA was not compulsory. Immediately after its launch, problems such as malfunctions and delays in resolving problems occurred. The Government tried to improve the system with the help of the private sector. However, the COCOA ceased its contact notification function in November 2022 because, due to the enormous number of new cases in the sixth wave (February–March 2022) and the seventh wave (August–September 2022), it became impossible to register all new cases of infections into the HER-SYS (Health Centre Real-time Information-sharing System). The team which worked on the operation of the COCOA published a report. ¹³⁶ In total, 40 million people downloaded the COCOA until it ceased its contact notification function in November 2022.¹³⁷

89.  The MHLW developed the HER-SYS to reduce the workload of health centres and speed up information sharing and understanding among health centres, prefectures, medical institutions, and other related parties, and has been operating the system since the end of May 2020. ¹³⁸ By utilizing HER-SYS, medical institutions could electronically enter and report the occurrence of a disease, and people receiving treatment at home could also easily report their daily health status via smartphone. The information entered by people receiving treatment at home was reflected and shared with the health centres that had jurisdiction over them, enabling them to quickly ascertain the condition of each person and provide appropriate follow-up care. In reality, however, there have been many problems. Among them, registering information into the HER-SYS became a heavy burden for the health centres. In September 2022, the MHLW simplified the registration system and registered only infected people over 65 years old or infected people who needed hospitalization.¹³⁹ It had been criticized that there was a gap between the needs of researchers who wanted to collect as much information as possible for future research, and the workers at health centres who were treating people with serious health risks and who did not have time to register detailed information, including that of infected people who were not in present health danger.

90.  The MHLW has continuously published a significant amount of guidance for providers of adult social care, collected under the following topics: (1) basic matters; (2) prevention of infections; (3) securing staff; (4) securing sanitation supplies; (5) care certification; (6) temporary arrangement; and (7) other relevant guidance.¹⁴⁰

91.  Elderly people over 65 years of age were more susceptible to infection and more likely to become seriously ill. Elderly care facilities where these people stay in groups were most at risk for infection. In fact, since the early days of the pandemic, there were numerous reports of cases of group infection in elderly care facilities. These cases included deaths in the facilities without being admitted to hospitals. While facility staff repeatedly appealed to the local government to hospitalize the infected, the local government requested that they be treated at the facility, as hospitalization was not possible.¹⁴¹

92.  The Government took limited action in response to this problem: providing guidance to facilities and increasing the number of hospital beds to facilitate hospitalization. At the peak of infections in the summer of 2021, up to approximately 28,000 people (regardless of age) needed to be hospitalized. Therefore, in November 2021, the Government announced an increase in beds to admit about 37,000 people. ¹⁴² However, it has been reported that some Covid-19 patients in a serious condition could not be hospitalized due to the lack of vacant beds during peaks of infections.¹⁴³ Moreover, in Tokyo, 183 people or 34% of the 536 fatalities (in January and February 2022) in the sixth wave of Covid-19 outbreak were infected in nursing homes for the elderly. Of these, 78 died while receiving care at the facilities without being hospitalized.¹⁴⁴

93.  In general, the Japanese Government’s measures largely relied on requests and persuasion rather than legal coercion by penalty and punishment. They were successful because of the population’s self-restraint by social pressure. Therefore, the role of legal enforcement was limited in comparison to other countries.

94.  The administrative fine introduced by the amendment of the ASMNI has been used sparingly (see Parts II.A, III.A, III.C, and IV.A.7 above).

95.  Consecutive surveys during the pandemic by the Cabinet Office found that the majority of people accepted many of the Government’s requests.¹⁴⁵

96.  The response to Government requests for telework varied by company size and geographic region. In Japan as a whole, the number of companies implementing telework has increased from 10.3% before the Covid-19 pandemic to around 30%. In particular, in central Tokyo, the telework rate increased from 17.8% before the Covid-19 pandemic to a maximum of 55.2%.¹⁴⁶

97.  In a survey following the first emergency declaration in 2020, 56% of respondents in urban centres reported a decrease in commuting time, compared to only 27.9% in rural areas.¹⁴⁷

98.  In Japan, it is customary to return to the parent(s)’ house and meet parents and relatives and/or have get-togethers with friends and colleagues during the end of the year and New Year holidays. Regarding plans to return to the parents’ home for the New Year holidays (Japanese traditional culture) in 2020, 9.4% of respondents said they would return to destinations in other prefectures and 13.4% said they would return to destinations in the same prefecture, while 51.9% said they would not return and 25.4% said they had not decided.¹⁴⁸ Regarding their plans for New Year’s get-togethers (with meals), 40.5% of the respondents answered that they had been to one in previous years but would not that year, 31.5% answered that they had not been to one in previous years and would not that year, and 16.6% answered that they had not decided. On the other hand, 10.5% of the respondents said they were planning to go.¹⁴⁹ Although people became more active during the 2022–2023 holiday season than in the previous year, people were still cautious about going out. In surveys 18.2% of respondents said they went out much less than before the pandemic, 29.2% said they went out less than before the pandemic, 44.5% said they went out the same as before the pandemic, and 8.1% said they went out more actively than before the pandemic. Furthermore, regarding the extent of outings during the end of the year and New Year holidays, 1.6% went abroad, 9.8% took long-distance (domestic) trips by plane or bullet train, 16.5% took medium-distance trips of 1–3 hours by train or car, 15.6% took short-distance trips of one hour or less by train or car, and 56.5% did not go out (excluding trips back home to their parent’s homes).¹⁵⁰

99.  Regarding the division of household and childcare roles between married couples (parents with children under 18), 46.3% (May and June 2020), 57.5% (April and May 2021), and 67.8% (March 2022) of respondents reported no change. On the other hand, among those respondents who said it had changed, more male respondents indicated that the husband’s role had increased, while more female respondents indicated that the wife’s role had increased.¹⁵¹

100.  After the decision to wear a mask was left to the individual in 2023, a survey asked respondents about their preference for wearing a mask, with many saying they would wear a mask, and only around 5% saying they would not wear one at all. Of those in their 20s, 40.4% said they would wear one regardless of the occasion, 53.3% said they would wear one depending on the occasion, 6.3% said they would not wear one regardless of the occasion. On the other hand, 34.6% of those in their 60s and older answered that they would wear the mask on any occasion, 62.8% said they would wear it on some occasions, and 2.6% said they would not wear it on any occasion.¹⁵²

101.  There are three main pillars in the Government measures in response to the Covid-19 pandemic: protecting life, protecting employment, and protecting business. ¹⁵³ The central Government set up basic schemes that are mostly implemented by local governments (see Part I above). The main infection control measures, other than vaccination, were to reduce the flow of people and the opportunities for human contact, which had an important impact on people’s economic and social activities. Therefore, the Government tried to strike a balance between controlling human flow and maintaining economic activity. To this end, various benefit mechanisms were established. Criticisms were made that there were too many different schemes and that some of the schemes were difficult to understand because of the complexity of the application process.¹⁵⁴

102.  There were two types of measures. One was the newly introduced cash transfers: unconditional and one-off cash transfers and conditional cash transfers based on applications. The other was the extension/modification of the existing social support system.

103.  One of the early, direct, social emergency measures was the Special Fixed Benefit (特別定額給付金‎) (100,000 yen, 938,64 USD per person, and only a one-time payment) which was paid to anyone registered in the Basic Resident Registration, (regardless of nationality) on 27 April 2020 to provide prompt and accurate support to households through a simple mechanism. The payment process encountered a delay in the beginning but managed to achieve 99.7% distribution of the whole budget (12.67 trillion yen) by 31 March 2021.¹⁵⁵

104.  Special measures (Emergency Small Loan Fund 緊急小口資金等の特例貸付)‎) were established for the general support fund (livelihood support expenses) and welfare fund (emergency small loan) under the livelihood welfare fund system for households with temporarily or continuously decreased income due to absence from work or unemployment caused by the outbreak of Covid-19 infection. The maximum loan amount of 100,000 yen (938.64 USD) was increased to 200,000 yen (approx. 1877.28 USD) in the following cases. (i) a member of the household had a Covid-19 infection; (ii) a household member required nursing care; (iii) there were four or more household members; (iv) a household member was a worker who was required to take care of a child attending a temporarily closed school as a measure to prevent the spread of Covid-19 infection; (v) a household member was required to take care of a child attending an elementary school, who may have been infected with Covid-19, and was, for example, displaying cold symptoms; and (vi) a household member needed a loan for living expenses due to a decrease in income caused by absence from work other than the above. Special measures were available until 20 September 2022.¹⁵⁶

105.  The Covid-19 Indigent Persons Self-Support Grant (Covid-19 生活困窮者自立支援金‎) was provided to households that had terminated special loans, such as the Emergency Small Loan Fund, or to households that were not approved for reapproval. The amount granted was 60,000 yen (563.18 USD) for a single-person household, 80,000 yen (750.91 USD) for a two-person household, and 100,000 yen (938.64 USD) for a household of three or more persons. The grant was paid for three months from the month of application. The following three conditions needed to be met. First, the income requirement was that income could not exceed the combined amount of (a) 1/12 of the amount exempt from municipal inhabitant’s tax on per capita levy and (b) standard amount of housing assistance for public assistance (monthly)—for example, for Special wards of Tokyo: 138,000 yen (1295.32 USD) for a single person household, 194,000 yen (1820.96 USD) for a two-person household, and 241,000 yen (2262.12 USD) for a three-person household). Second, the asset requirements were that deposits and savings needed to be less than six times the amount in the first income requirement (but not more than 1,000,000 yen). Third, the job seeker requirements were that one of the following requirements needed to be met: the applicant needed to apply for a job at a job centre and needed to be sincere and diligent in their job search activities. If it was difficult to become self-supporting through employment and it was expected to be difficult to maintain one’s livelihood after the benefit ended, the applicant needed to apply for public assistance (生活保護‎).¹⁵⁷ The subsidy was available until 31 December 2022.¹⁵⁸

106.  The Housing Support Benefit (住宅確保給付金‎) was a support measure for individuals facing difficulties in paying rent for their current residence due to a decrease in income resulting from job loss, business closure, or similar circumstances. The local government provided assistance by directly paying landlords up to three months’ worth of rent (up to a maximum of nine months). A person was eligible to receive benefits in the following cases: (i) if there was a possibility of losing their current residence due to a decrease in income resulting from job loss or business closure within the past two years, or if their opportunities to earn income had decreased to a similar extent without personal responsibility or circumstances; (ii) if the total household income in the most recent month did not exceed the standards set by the municipality for the total rent amount; (iii) if the total savings of the current household did not exceed the amount specified by the municipality; (iv) if the person applied for job-searching through Employment Service Agency or similar job placement services and engaged in job-searching activities. However, for self-employed individuals, instead of applying for employment through Employment Service Agency or similar services, there could be opportunities to engage in activities for business revitalization. This benefit was available until 31 March 2023.¹⁵⁹

107.  Because the impact of Covid-19 caused particularly great physical and mental difficulties for low-income, single-parent households who were responsible for raising children and working alone, a temporary special benefit for low-income single-parent households (ひとり親世帯臨時特別給付金‎)was also available to help these households cope with the increased burden of childcare and reduced income—50,000 yen (469.32 USD) per family and 30,000 yen (281.59 USD) per child after the second child (a one-time payment) was paid. In addition, 50,000 yen (469.32 USD) per household was paid to those whose household finances had suddenly changed due to the impact of a Covid-19 infection and whose income had decreased. Benefits were paid by local governments.¹⁶⁰

108.  To respond to consultations from single-parent families, etc, who tended to be socially isolated, a consultation support system was established and strengthened, taking into consideration the prevention of transmission of Covid-19. Policies available to single-parent families were collectively provided.¹⁶¹

109.  The Emergency Student Support Handout for Continuing Studies (学習支援緊急給付金‎) was provided to students (100,000–200,000 yen, between 964/1877.28 USD), based on an application, who could not continue to study because of financial difficulties caused by the Covid-19 pandemic.¹⁶²

110.  After 25 February 2020, due to the following circumstances, if a person was unable to work for thirty days or more within one year of receipt of unemployment benefits after separation from employment, they could apply for an extension of the period of receipt of benefits (雇用保険受給期間延長‎). This applied to: those with symptoms of suspected Covid-19 infection; those who suffered from fatigue or breathing difficulties; those who refrained from visiting a job centre to prevent the spread of infection; or those who needed to care for a child due to Covid-19. Those who could not continue to work for thirty days or more due to the above reasons (for a maximum of 3 years) could be added to the original entitlement period (1 year from the day following the date of separation from employment).¹⁶³

111.  Those whose income decreased due to the effects of Covid-19 could be exempted or deferred from all or part of their National Pension Insurance premiums (国民年金保険料猶予・免除‎).¹⁶⁴

112.  If there were unavoidable reasons for not being able to file a tax return or make a payment by the due date because of the effects of Covid-19 infection, an application for an extension of the due date for filing a tax return or making a payment due to disaster could be filed with the competent district director and, upon receiving approval, an extension would be granted within two months from the date the reason ceased to exist.¹⁶⁵

113.  The Government sought to avoid job losses by supporting employers and installing new schemes. However, it did not install direct compensation to workers when it requested that shops close and/or shorten their opening hours during the state of emergency (see Part IV.A.4 above).

114.  The Sustaining Grant (持続化給付金‎) was a program that provided benefits to businesses that had been particularly severely affected by Covid-19 infections, which could be used broadly throughout their businesses to support business continuity. Corporations and individuals in a wide range of industries, including: agriculture, fishing, manufacturing, food service, retail, and writing/acting, were eligible for the program. Businesses whose sales declined by 50% or more from the same month of the previous year were eligible to apply for benefits. The maximum amount for small and medium-sized businesses was 2 million yen, while the maximum amount for individuals (including freelancers) was 1 million yen. It was applicable between the period of 1 May 2020 and 15 February 2021.¹⁶⁶

115.  The Sustaining Grant excluded sex industry businesses. A company operating a delivery health service (dispatch-type brothel) filed a lawsuit to the Tokyo District Court by claiming the exclusion was against Article 14 of the Constitution (equality under the law). However, on 30 June 2022, the Court dismissed the claim by recognising a wider discretion of the executive and ruling that the exclusion of businesses engaged in the sex industry from benefits by distinguishing them from other businesses did not constitute discrimination without reasonable grounds and could not be said to violate Article 14(1) of the Constitution.¹⁶⁷

116.  The employment adjustment subsidy (雇用調整金‎) was a partial subsidy for absence allowance, for employers who implemented ‘employment adjustment (absence from work)’ based on an agreement between employees and employers to maintain the employment of their employees when they were forced to ‘reduce business activities’ due to the effects of Covid-19 pandemic. In addition, when employers maintained employment by transferring workers to other companies, they were also eligible for subsidies. The maximum amount per person per day varied depending on the circumstances but ranged from 8,355 to 15,000 yen.¹⁶⁸

117.  The Business Restructuring Promotion Project for Small and Medium Enterprises (事業再構築補助金‎) was adopted by the Small and Medium Enterprise Agency, and a private company, Pasona Inc., operates the project under the supervision of the Small and Medium Enterprise Agency and the Organization for Small & Medium Enterprises and Regional Innovation. With the prolonged impact of the Covid-19 pandemic and the difficulty in expecting a recovery in demand and sales in the immediate future, the objective of the project was to promote structural transformation of the Japanese economy by supporting business restructuring of small and medium-sized enterprises.¹⁶⁹

118.  There has been no modification of the freedom of employers to dismiss workers as a result of the pandemic and no alterations that allow or restrict the variation of contractual terms as a response to the economic effects of the pandemic.

119.  If a worker was forced to take time off work due to Covid-19 and the effects of measures taken to prevent its spread, but was unable to receive payment for absence from work, the worker was eligible for Covid-19 response absence assistance and benefits (新型コロナウイルス感染症対応休業支援金・給付金‎) upon application by the worker. This was available until 31 May 2023.¹⁷⁰

120.  Employers who provided paid leave to parents (workers) whose children attended elementary schools or other facilities (that were closed due to Covid-19 infection) could be subsidized upon the application of the employer ((小学校休業等対応助成金)‎). Agricultural business owners are also eligible for this subsidy. Applications could be submitted until 31 July 2023.¹⁷¹

121.  At first, the Government did not take special measures to protect vulnerable categories of workers. Some of the benefits, such as the Covid-19 response absence assistance and employer subsidy, did not include self-employed or freelance workers. Industry associations and related labour unions lobbied the Government, and the support grant for response to elementary school closure due to Covid-19 infection, for those who work individually on consignment, was established. Support was provided for parents working as individuals who were not able to do their contracted work between 1 December 2022 and 31 March 2023 due to the need to care for elementary school and nursery children as a parent or guardian. The support for absence from work covered until the date of 31 March 2023.¹⁷²

122.  The Federal Consolation payment as a token of gratitude was paid to healthcare workers and employees working at medical institutions through the Covid-19 pandemic. Up to 200,000 yen (approx. 184.29 USD) was provided as a consolation payment to medical personnel and staff who worked at medical institutions assigned by the prefectural government to provide medical care for Covid-19 patients and who had contact with patients. Medical personnel and staff who worked at other hospitals and clinics and had contact with patients also received 50,000 yen (approx. 460.72 USD) as a consolation.¹⁷³

123.  Health and safety at work laws have not changed to meet the particular situation of the pandemic. Local governments encouraged businesses to take measures to prevent infection (eg, hand washing, hand sanitizing, cough etiquette, keeping staff at a safe distance from each other, ventilating workplaces, disinfecting areas touched by multiple people, refraining from work for employees with symptoms such as fever, using a test kits, using video conferencing, and taking staggered lunch breaks). Local governments provided industry-specific guidelines.¹⁷⁴

124.  The Nationwide Travel Assistance was set up by the Government to reactivate the travel industry which was severely damaged by the stay-at-home policy. The Government, through local governments, provided support for travel products of approximately 5,000 yen per night (approx. 46.07 USD).¹⁷⁵

125.  The ACC, later the PCC and the SCN (see Part III.E above) included not only medical experts, but also lawyers, economists, members of the business sector, trade unions, and local government. However, the SCN played an important role to take into account not only medical concerns but also other social and business concerns. The Japan Trade Union Federation and other trade union organizations also lobbied the government to realize various subsidies and benefits.

126.  The Government prioritized the prompt and smooth receipt of benefits, which led to the emergence of a certain number of cases of fraudulent receipts. The Government responded by publicly announcing the names of fraudulent recipients.¹⁷⁶

127.  Most civil liberties have not been directly affected by the health measures adopted to limit the spread of Covid-19 in Japan because the Government measures were mainly requests and persuasion. Social pressure played an important role in making people stay home (see Part IV.A.1 above). The attitude of self-restraint of the general public was created by public institutions and media placing strong emphasis on the dangers of Covid-19. It is undeniable, however, that an overemphasis on the dangers of Covid-19 fuelled prejudice and discrimination against Covid-19 patients and medical staff in the early stages of the pandemic (see Parts VI.B and VI.H below).

128.  There were two exceptions where legally binding measures were taken. One was border control. Entry of foreigners was severely restricted, and the entry conditions were constantly and arbitrarily changed on short notice (see Part VI.I below). The other was the newly installed fine against shops and restaurants which did not obey the order of closure and/or short opening hours (see Part IV.A.4 above). The local government carefully used this power. Moreover, the Tokyo District Court admitted the unconstitutionality (economic freedom) of the usage of an administrative order (see Part III.C above).

129.  What was noticeable when the pandemic first began was the prejudice and discrimination of people against infected persons and medical staff. This occurred not only against infected persons and patients but also against medical and nursing staff, people from schools, institutions, and shops where infected persons were identified, vehicles with plates which showed a different prefecture, long-distance transporters, people returning from abroad, foreigners, and their families. The forms of discrimination included slander, defamation, and discrediting through social networking and other media, denial of access to nursery schools and schools, throwing stones at patients’ homes, harassment, etc. In the face of these phenomena, the Government stated in the BPNCDC that it would work to ensure that human rights violations against patients, infected persons, their families, and medical personnel do not occur.¹⁶⁴ The MHLW, the Ministry of Justice, and the Ministry of Education, Culture, Sports, Science and Technology then undertook awareness-raising activities. Regrettably, the lessons were not learned from the experience of severe prejudice and discrimination against the former Hansen’s disease patients who were forced to stay in sanatoriums under the Leprosy Prevention Act despite the fact that the risk of infection was extremely low and the disease was curable by medicine.¹⁷⁷ In Japan, there is no general anti-discrimination law.

130.  The use of advanced digital technologies in the fight against the pandemic has raised privacy concerns. Therefore, the COCOA was considered a less-intrusive application in comparison to those introduced in other countries. Due to technical and systematic problems, the COCOA was not fully utilized and stopped being used (see Part IV.A.9 above).

131.  A serious problem was the publication and sharing of private information (identities of infected people) on social networking sites and anonymous internet forums. People’s anxiety and prejudice against Covid-19 was the cause, and the Government undertook awareness-raising activities and set up a counselling service for cases of victimization.¹⁷⁸

132.  The pandemic has exposed inequalities between women and men. Japan’s gender gap ranking of 2023 is 125th among 146 countries in 2023.¹⁷⁹

133.  In Japan, the disparity in treatment between full-time workers and part-time workers is large, and part-time workers are more likely to be laid off during economic downturns. Moreover, women are more likely to work part-time as they are expected to do household work. In April 2020, the number of part-time workers declined sharply, with a drop of 320,000 for men compared to 740,000 for women. The impact on employment was greater on the part of women. Moreover, the sudden closure of schools at the end of February 2020 created a situation where one of the parents had to take care of their children at home, which was mostly performed by women. Thus, even before Covid-19, the burden of housework and childcare had been disproportionately placed on women, but this was further magnified. Telework and stay-home requests increased the risk of domestic violence occurring: the number of consultations with domestic violence victims in May and June 2020 was 1.6 times the amount of the same month in the previous year. Single female-parent households suffered more economically during the Covid-19 pandemic. Although these problems were to be expected, the lack of a gender perspective in the initial Government measures worsened the situation surrounding women.¹⁸⁰

134.  Over 20,000 people die by suicide in Japan every year. Among the seven major G7 countries, Japan has the highest suicide rate and the highest number of female suicides.¹⁸¹ On top of this, during the Covid-19 pandemic, the number of female suicides increased: from 6091 (2019), to 7026 (2020), 7068 (2021), 7135 (2022), and 6975 (2023).¹⁸² The high suicide death rate among women in Japan can be attributed to the large gender gap.¹⁸³ Possible reasons include: women were less likely to go out due as a result of restrictions to prevent the spread of infectious diseases; they were more isolated due to fewer opportunities to consult third parties because of the closure of consultation centres; postpartum depression and nursing fatigue due to isolation; increased damage from domestic violence due to restrictions on going out; and economic instability due to the decrease in the number of part-time workers.¹⁸⁴

135.  Amid the spread of Covid-19 in March 2020, discriminatory letters with slanderous language against Chinese people were sent to several Chinese restaurants in Yokohama Chinatown. The Yokohama City Human Rights Division visited Chinatown to investigate. Yokohama Mayor Hayashi publicly announced that the letters constituted hate speech.¹⁸⁵

136.  There were problems with local governments. In March 2020, when a shortage of masks was severe and a local government distributed masks to kindergartens and nursery schools, it excluded a Korean school-run kindergarten. When the local government accepted the claim from the school, it reversed its decision and decided to distribute the masks. However, the school subsequently received threatening anonymous emails and phone calls telling them to ‘go back to [their] own country’.¹⁸⁶

137.  People with certain disabilities were at risk of becoming seriously ill if they were infected with Covid-19. On the other hand, the measures taken to prevent the spread of Covid-19 resulted in a situation where they were often unable to receive adequate care and support from care providers and relatives. Specifically, the same services as before could not be received due to suspension or change of support services for persons with disabilities as a measure to prevent infection, restrictions on visits and activities in residential facilities, restrictions on visits, outings, and overnight stays in psychiatric hospitals, and inability to receive Special Fixed Benefits (see Part V.A.1 above).¹⁸⁷

138.  At elderly care facilities, the risk of infection was high due to the inevitable close contact of care workers with elderly people when providing care, and because the elderly were at high risk of serious illness if infected with Covid-19. Moreover, many outbreaks of infection occurred due to insufficient numbers of care workers, inadequate infection control measures, and a lack of masks and PPE at the early stage of the pandemic. Furthermore, during the initial period of the rapid spread of infection (before vaccination started), the medical system was strained and many cases occurred in which elderly people at care facilities were infected and became seriously ill, but could not be hospitalized because of shortage of beds at hospitals.¹⁸⁸ On 13 May 2020, a Kyodo News investigation found that, as of 8 May, at least 700 residents and staff had been infected with Covid-19 at elderly care facilities and 79 of them had died. All of those that died were residents, and none were staff. According to the MHLW, the total number of deaths in Japan (as of 8 May 2020) was 557. Of the total number of deaths at this time, about 14% had occurred in elderly care facilities.¹⁸⁹ This situation continued and it was reported by the Tokyo Metropolitan Government that 183 people, more than 30% of the 536 total deaths in Tokyo since January 2022 in the sixth wave of Covid-19, were infected in elderly care facilities. Of these, 78 died without being hospitalized, and some were in the process of waiting for hospitalization. As part of efforts to reduce the burden on hospital beds, the Tokyo Metropolitan Government made it a basic rule in the sixth wave that infections in facilities were handled with house calls by doctors rather than hospitalization.¹⁹⁰ The MHLW did not publish a detailed analysis of the infected and dead, and the number of deaths in care facilities nationwide is unknown.

139.  In the early stage of the outbreak in 2020, all of the elementary, middle, and high schools in Japan were closed for nearly three months (see Part IV.A.4 above). Even after schools reopened, school events such as sports days and excursions were cancelled. Children’s rights to education were severely restricted. In addition, students were instructed to eat without conversation at school lunches. It has been pointed out that these situations have had a significant impact on children’s minds and bodies.¹⁹¹ In some cases, high school and university students were unable to continue their studies due to financial difficulties caused by their inability to work part-time.¹⁹² Online teaching has been widely used as a substitute but there are concerns that its quality needs to be examined and online teaching widened the gap between students who had their own PCs and parents’ support and students who could not.¹⁹³

140.  When outbreaks occurred in schools, there was bullying of infected persons and slander against the schools concerned. Some healthcare workers’ children were refused a place by daycare centres.¹⁹⁴

141.  It was noted that children at risk of domestic violence and child abuse were placed in an even more difficult situation because the declaration of a state of emergency increased the amount of time families spent at home and increased economic problems, such as parental unemployment and reduced salaries. It also became more difficult for private support activities for children (eg, children’s cafeterias) to provide services.¹⁹⁵

142.  On 14 March 2023, the MHLW and the National Police Agency announced the confirmed number of suicides in 2022. A total of 514 elementary, junior high, and high school students committed suicide, the highest number since statistics began in 1980 and the first time the number had exceeded 500. The MHLW believed that this was partly due to the prolonged Covid-19 pandemic, which aggravated problems with school and family.¹⁹⁶

143.  Most information on Covid-19 is directed at adults. There is little information aimed at children and the right to information is not guaranteed with the exception of a message for students from the Minister of Education.¹⁹⁷

144.  Prisons and criminal incarceration facilities were extremely vulnerable to the spread of Covid-19 because of the large number of people living together in closed spaces. Infections have been confirmed in various prisons.¹⁹⁸ The Ministry of Justice has formulated the Basic Handling Policy for Countermeasures against Covid-19 Infections of the Ministry of Justice to deal with the situation.¹⁹⁹

145.  During the first declaration of a state of emergency in 2020, to prevent infection, in principle, only defence counsel and would-be defence counsel were allowed to visit prisoners in penal institutions located in major prefectures. This measure had no legal basis. Visits resumed after 26 May 2020, when the state of emergency was lifted.²⁰⁰

146.  Some of the Government’s benefits and grants were applicable to non-citizens who had medium-to-long-term residency. However, in reality, it was difficult for them to apply because the information was not readily available or was only available in Japanese. When foreign students and technical intern trainees finished their study or training program but could not return to their home countries because of the Covid-19 pandemic, their status was changed to a short-stay, and they could not receive the aforementioned benefits. Later, it was changed from a short stay to a ‘specified activity’ and they were able to receive the benefits. Foreigners who had no status of residence and were detained in detention facilities, but who were provisionally released, were not eligible for benefits and were prohibited from working, so they were destitute but no administrative support was provided to help them make a living.

147.  In response to the global spread of Covid-19, an unprecedentedly large-scale entry restriction was implemented. The legal basis was Article 5(1)(xiv) of the Immigration Control and Refugee Recognition Act (‘[o]ther than those persons outlined in items (i) through (xiii), a person whom the Minister of Justice has reasonable grounds to believe is likely to commit an act which could be detrimental to the interests or public security of Japan’).²⁰¹ Said item was a basket clause, which should be narrowly interpreted and was not originally intended to be used to prevent the spread of infectious diseases, therefore the legal basis is questionable.

148.  The Immigration Control and Refugee Recognition Act allows for virtually indefinite detention in Japanese immigration detention facilities after the issuance of a deportation order, and in practice, detention tends to be prolonged (from one year to several years). With the spread of Covid-19, to avoid population density in immigration detention facilities, a manual was made to utilize provisional release ‘except in cases where provisional release is not deemed appropriate’, and large-scale provisional release permits were granted. However, the problem of long-term incarceration remains.²⁰²

149.  The Covid-19 pandemic led to a fall in applications for asylum protection in Japan. The number of applicants in 2020 was 3,936, a decrease of 1,523 (approximately 62%) compared to the previous year. In 2020, 91 foreigners were granted residence in Japan: of these, 47 were recognized as refugees and 44 were allowed to stay on the grounds of humanitarian considerations.²⁰³ Furthermore, the number of applicants in 2021 was 2,413, a decrease of 1,523 (approximately 39%) compared to the previous year. In 2021, 654 foreigners were granted residence in Japan: of these, 74 were recognized as refugees and 580 were allowed to stay on the grounds of humanitarian considerations.²⁰⁴ However, the number of applicants in 2022 increased by 56% (3,772 applications). Moreover, in 2022, 1,962 foreigners were granted residence in Japan: of these, 202 as refugees and 1,760 due to humanitarian considerations. ²⁰⁵ Both numbers are the highest since the asylum system was established in 1982 after Japan ratified the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees.

150.  Upopoy, the National Ainu Museum and Park was supposed to open on 24 April 2020 but this postponed until 12 July 2020 because of the first wave of Covid-19. The Ainu are an indigenous people in the northern area of Japan and Upopoy aims to promote Ainu culture and history and raise public awareness. However, six months after opening on 12 July, the number of visitors was approximately 200,000, only 20% of the target (1 million), due in part to Covid-19 pandemic. Since then, the number of visitors has been sluggish.²⁰⁶

151.  In the province of Hokkaido, a ceremony to purify the payokakamui (the god of pestilence) has been held since April 2020. This is the first time in 150 years that the event has been held since the government banned Ainu culture during the Spanish flu epidemic of the Taisho period (1912–1926), when the government’s assimilation policy was in effect. The Ainu hold the idea of symbiosis and circulation. Rather than fighting the virus, they are expressing the wish ‘Payokakamui, please come home.’²⁰⁷

Prof. Akiko Ejima, School of Law, Meiji University