Statement Opposing the Introduction of the Emergency Clause and the Extension of the Terms of Office of Members of the House of Representatives through Amendment of the Constitution of Japan
As the COVID-19 pandemic expands, there has been a growing view within the Diet’s Constitution Examination Board, etc. that the government should consider introducing an emergency clause and extending the terms of office of the members of the House of Representatives amending the Constitution of Japan to respond to situations such as this pandemic.
On this issue, the Japan Federation of Bar Associations (the “JFBA”) released “Opinion Opposing the Introduction of the Provision Regarding National Emergencies into the Constitution of Japan” on February 17, 2017. Also, between 2015 and 2017, 34 bar associations and federations of bar associations across the country issued opinions or their presidents’ statements opposing the introduction of an emergency clause (power to declare a national emergency) in the Constitution of Japan for any reason including disasters.
There is a high risk of abuse of power by the government with the emergency clause due to an excessive concentration of power because invoking the emergency clause will suspend the separation of powers and grant the government the power to legislate and pass budgets. In addition, since it will also suspend the protection of human rights, it could lead to significant restrictions on not only the freedom of business and property rights but also other human rights that constitute the foundation for democracy, such as the freedom of expression and the freedom of the press. In light of the history of past abuses of emergency clauses, the lack of an emergency clause in the Constitution of Japan should be interpreted as an intentional choice and that the drafters of the Constitution of Japan took the position that emergencies should be addressed by enacting individual laws for specific situations in advance during peacetime.
In the context of COVID-19, the situation can be duly addressed with the Quarantine Act and the Act on the Prevention of Infectious Diseases and Medical Care for Patients with Infectious Diseases, both of which apply in peacetime, as well as the Act on Special Measures against Pandemic Influenza, which applies in an emergency. Therefore, COVID-19 doesn’t necessitate the introduction of an emergency clause.
Also, the JFBA has expressed its opposition to extending the terms of office of members of the House of Representatives in the aforementioned opinion paper on the ground of potential abuse of authority by the Cabinet and harm to the principle of popular sovereignty (democracy). In “Opinion Calling for Revision of the Public Offices Election Law in Preparing for Large-Scale Disasters” released by the JFBA on December 22, 2017, we called for a change in the system to allow for carrying out elections even in the event of large-scale disasters. Focus should be on establishing a system to ensure that elections can be carried out during the ongoing COVID-19 pandemic, which can be seen as a type of disaster, rather than a system that might violate the principle of popular sovereignty (democracy) caused by extending the terms of office.
For the reasons above, the JFBA takes the position of adhering to constitutionalism and respecting the principle of popular sovereignty (democracy) and opposes introducing an emergency clause and extending the terms of office of members of the House of Representatives through amending the Constitution of Japan.
May 2, 2022
President of Japan Federation of Bar Associations