<COVID-19>Statement Opposing the Bills to Amend the Infectious Diseases Act and the Special Measures Act

• Japanese

Today, the Government approved the bills to amend the Act on the Prevention of Infectious Diseases and Medical Care for Patients with Infectious Diseases (the “Infectious Diseases Act”) and the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response (the “Special Measures Act”) through the Cabinet’s decision. Given the challenging social environments where the healthcare system is overwhelmed by the surge in COVID-19 cases, there is an undisputable need for effective measures. However, the amendment bills grant broad authority to the prefectural governors for the purposes of containing the spread of COVID-19, thereby restricting the rights of those infected with COVID-19 and business operators, the very people who should be the beneficiaries of protection, with threats of penalties and obligations. Meanwhile, the amendment bills lack provisions to protect fundamental human rights and guarantee appropriate procedures—ones on which the penalties and obligations should be premised—suggesting that the bills fail to ensure the availability of good quality and appropriate healthcare as well as adequate compensation. Moreover, it is doubtful whether these measures are even effective at all to achieve the objective of containing and curtailing the pandemic. Therefore, the Japan Federation of Bar Associations (the “JFBA”) strongly opposes the amendment bills unless they are fundamentally altered to address the issues highlighted below.

1. First, the aim of the Infectious Diseases Act is supposed to be the respect for human rights of patients with infectious diseases and other relevant persons. However, the Infectious Diseases Act amendment bill presented this time introduces the use of punishments, i.e., imprisonment with prison work or fines for refusing hospitalization or escaping from a hospital, and fines for refusing to participate or giving false information in an active epidemiological investigation.
   
   When imposing a criminal punishment, there must be a clear definition of what constitutes the criminal offense to which the sanction is applied (i.e. elements of the crime). In this respect, because the pathophysiological conditions of the COVID-19 disease have not been adequately identified, the scope and specifics of the hospitalization measures and the epidemic investigations may change in accordance with the development of the scientific expertise and the infectious situation. There are also regional differences in the systems of the Public Health Centers and the healthcare services. As a consequence, the scope of people who may be subjected to the sanction prescribed in the amendment bill is vague and fluid entailing a high potential for unfair and inequitable use of criminal punishment.
   
   On the other hand, due to COVID-19’s characteristic high transmissibility before developing symptoms, imposing criminal punishment on those who refuse hospitalization or participation in an epidemiologic investigation does not constitute the containment of the pandemic. Rather, conversely, it has been reported recently that many patients with mild symptoms (and hence were instructed to stay home or receive medical attention at home) could not be hospitalized when their condition turned critical so as to require admission to the hospital, and some of them eventually passed away. Thus, the lay of the land is that the State and the municipalities have been failing to fulfill their obligation to ensure that “patients can receive high-quality and appropriate medical care” set out in the preamble and Article 3(1) of the Infectious Diseases Act. On top of this reality, if just refusing hospitalization or participation in an investigation, or withholding information, entails a risk of receiving a “criminal” label, people infected with COVID-19 may hide the fact that they have contracted the disease or are suspected of COVID-19 infection, which may even contribute to the spread of the pandemic.
   
   The analyses have shown the high transmissibility of COVID-19 from asymptomatic carriers unlike in common influenza infection, and cases suffering serious subsequent complications have also been reported. These analyses have produced anxiety with regard to transmission of COVID-19 in the entire nation and have already given rise to unjust discrimination and prejudice directed at those infected with COVID-19 as if to accuse them of having contracted the disease. If criminal punishment is imposed without careful deliberation on people infected by the virus while such unjust treatment is not eliminated, the discrimination and prejudice against them may escalate to the point where extremely serious violations of human rights are induced.
   
   When it comes to the origin of the legislation of the Infectious Diseases Act, it was enacted by abolishing the former Infectious Diseases Control Act on the basis of the remorse for what had been done in the past. In its preamble, the Infectious Diseases Act enunciates the aims of the law as follows: “. . . there was groundless discrimination or prejudice against patients suffering from leprosy, acquired immunodeficiency syndrome (AIDS), and other infectious diseases, and those suffering from similar illness. The Japanese public must take these facts seriously and apply them as a moral lesson for the future[,]” and “[. . . it is desirable to] ensure high-quality and appropriate medical care for such persons and to promptly and appropriately address infectious diseases, while respecting their human rights.” Anyone may contract COVID-19 because of its significant transmissibility. People infected do not deserve blame for their contraction of the virus, whereas the amendment bill presented this time ignores such circumstances and seeks to impose obligations by means of punishment without adequate deliberation. It neglects the aims of and the historical background to the legislation of the Infectious Diseases Act and makes light of the fundamental human rights of those who are affected by infectious diseases.
   
   
2. Second, according to the Special Measures Act amendment bill, the prefectural governors are mandated to request and order, under “Priority Measures for Containment of the Spread of Infection,” that business operators change their operating hours or take other measures and, in the event of non-compliance with the order, the governors can impose petty fines and publicize the fact of having issued the request and order.
   
   However, the amendment bill provides neither clear criteria for issuing the request and order nor specific contents of the order while the scope of the authority granted to the prefectural governors is quite extensive. Consequently, we fear that the request/order may be used arbitrarily. There is also no assurance that individual circumstances of each business operator will appropriately be taken into account in deciding the sanction for refusal to obey the order requiring the changing of hours of operation and so forth.
   
   Furthermore, for business operators that were impacted too significantly by the pandemic to shut down their operations and stayed open in a challenging business environment, receiving the request or order brings immediate grave consequences that people working there, including those operating the businesses, will lose their livelihood or even their lives. The businesses involved in dine-in food service or serving alcoholic beverages, namely the major target of the request/order, are not engaged in operations which are harmful in themselves. It is too cruel to require them to change operating hours (which could be critical to their trade), etc. only because there are risks of spreading infection in food and drink establishments regardless of how hard they try to contain it. If such request or order is due, it must be combined with the necessary and adequate compensation defined in the Constitution of Japan as “just compensation therefor” for businesses that are affected, and hence the specifics of the compensation must be clarified at the same time as when the amendment bill passes the Diet.
   
   Additionally, the indifferent issuance and publicizing of the request/order may produce unjustifiable reputational damage or discrimination and prejudice, and entails violations of the business operators’ honor, right to privacy, and freedom of business.
   
   What is needed to contain the spread of COVID-19 is not the heedless introduction of sanctions; what is crucial to achieve the objective is to build a testing system and a healthcare delivery system which, on the basis of the understanding and trust established between the Government and municipalities and citizens, ensure that those who are infected with COVID-19 can receive the necessary treatment without anxiety at the hospital and that they can participate in epidemiological investigations without concern.

Thus, in view of the foregoing, the JFBA registers its strong opposition to the Infectious Diseases Act amendment bill and the Special Measures Act amendment bill approved by the Cabinet this time unless they are fundamentally altered.