State of Emergency: Self-Restraint and Compensation

Toru Nagaoka
Director, Institute of Disaster Area Revitalization, Regrowth and Governance/Professor, School of Law and Politics, Kwansei Gakuin University

The COVID crisis has been recognized as a disaster or a state of emergency in many
countries, and special government measures are being adopted according to thecircumstances in each country. Some countries have actively gathered and disclosed thepersonal information of infected people and their close contacts, while other countries haveenacted lockdowns in cities, thereby severely restricting the freedom of movement andfreedom of business. Compared with these countries, Japanʼs state of emergency declaration
has little legally binding force and is seen as lukewarm.
Certainly, even when a state of emergency declaration is made under the New Influenza
Special Measures Law, prefectural governors can expropriate land and buildings to open
temporary hospitals, expropriate essential drugs and foods, call on people to refrain fromgoing outside, and make requests or issue instructions to restrict or stop the use ofestablishments in which large numbers of people gather, but the only sanctions available
against those who violate these requests or instructions are the disclosure of the names andother details of the establishments in violation. Naturally, there are regulations forcompensation for losses due to expropriation, but there are no regulations on compensation
for appeals and instructions for each type of self-restraint measure. Perhaps the fact that there
are no compensation regulations for the latter is based on traditional legal arguments that
there is no need for compensation when there are passive or policing restrictions to preventthe spread of disease.
Where did the idea that self-restraint appeals with neither penalties nor compensation were© 2020 Institute of Disaster Area Revitalization, Regrowth and Governance, Kwansei Gakuin University

enough come from? Iʼve been told that “We couldnʼt establish penalties because theopposition to limitations on private rights is too strong,” but is it really the case? I doubt they
are asserting that citizens must obey the governmentʼs appeals, as preventing the spread of
infectious diseases is the governmentʼs job and citizens are the objects of the governmentʼscountermeasures. That said, the self-appointed “pandemic police” may be a phenomenon thatcan be understood within this context.
The Institute of Disaster Area Revitalization, Regrowth and Governance considers
autonomous disaster victims themselves to be the main constituents of revitalization. Thegovernmentʼs role is to support the recovery of victimsʼ autonomous existence. If we consider
the COVID crisis to be a kind of disaster, then autonomous citizens are the main actors who
try to prevent the spread of illness and plan for the restoration of normal life. The role of thegovernment and prefectural governors is not to issue appeals to and instructions for the publicand force them to follow the governmentʼs policies. Let the role of the government andprefectural governors be the provision of essential support so that people can act to preventthe spread of illness based on their own judgment. The first step in this change would be toconvey accurate information and let citizens know about the necessity of changing behavioral
patterns through self-restraint. Then, the most important thing will be to provide economic
assistance to support citizensʼ self-restraint activities.
This is not based on the rationale that compensation is necessary for losses incurred by selfrestraint in observance of the instructions of the government or prefectural governors. Thelogic is that since citizen-centered (in-)activity is indispensable in preventing the spread ofdisease, economic support is needed for that (in-)activity. There are various points of debate
regarding state of emergency legislation, but we must not lose the perspective that these aresystems for restoring autonomy to civil society.
July 2020© 2020 Institute of Disaster Area Revitalization, Regrowth and Governance, Kwansei Gakuin University