Experts conclude Japan's Covid restrictions are ethically, legally, and socially unjustifiable

Last week, 15 of the government’s selected experts finally recommended that Covid be reclassified under the Infectious Diseases Act from its current status alongside Ebola to Category 5 alongside the flu, albeit “gradually”. Their "Views and Considerations” were published by Covid Response Advisory Board and have been widely reported. But the Advisory Board also published the opinions of another set of experts which hardly any media have mentioned. Led by Tokyo University medical sociologist Kaori Muto, these 9 experts discussed the ethical, legal, and social implications (ELSI) of Japan’s Covid response. Below is a translation of their views on the measures enforceable under Covid’s current status.

Enforceable measures to prevent Covid-19 infections need to be lifted

COVID-19 is still subject to enforceable measures under the Infectious Diseases Act (IDA).

Prefectural governors can recommend the hospitalization of infected patients based on Article 19 of the IDA. If the patient does not comply, a fine may be imposed under Article 80. If a positive case has a low risk of developing severe disease, the prefectural governor can request that the patient refrains from leaving their home or stays at other accommodation [e.g., designated hotels] based on Article 44-3.

In addition, prefectural governors are stipulated to actively conduct epidemiological surveys [i.e., contact tracing] based on Article 15. The intended purpose is contain infections by grasping the occurrence of outbreaks based on individual infections, to in principle retrospectively estimate the source of infection, and to proactively restrict the activities of close contacts.

One of the main principles of public health ethics is “least infringement” otherwise called “least restrictive or coercive means.” This principle is also respected by Article 5 of the Novel Influenza Act and Article 22-2 of the IDA, which state that measures that restrict freedom and rights must be the minimum necessary.

How many times have you read or heard about this principle in the last three years?

In "Views and Considerations,” concerning hospitalization and home/hotel isolation mainly intended for infection prevention, it was stated that “In fact, hospitalizations for such purposes are no longer taking place and the impact [of lifting this measure] is expected to be minor” and “Currently, more than 20 million people are confirmed to be infected per year, and hotels, which have a limited capacity, are less conducive to case isolation from the perspective of society-wide infection control.” In addition, regarding the tracing and isolating of close contacts by health authorities, it was stated that “In fact, it isn’t being conducted. We have shifted to voluntary measures, and the impact from the perspective of infection control is minor.” Such evaluations can be said to prove that these measures are in reality no longer the minimum necessary .

“No longer”? I’m pretty sure 20 million cases a year can be said to prove that the last three years of mandatory case isolation and contract tracing were in reality never necessary or effective.

However, there are regional differences in people's views about hospitalizations and contact tracing aimed at infection prevention, and in some regions, the main purpose of these measures is still to prevent infections [i.e., not treatment or monitoring]. In some areas, residents strongly demand that cases and contacts be quarantined at hospitals or other accommodation to prevent infections. In addition, the term "close contact" has become well known, and people have got into the habit of identifying “close contacts” and managing their behavior.

Such demands have been strongest in rural areas, where the media’s exaggerations of Covid’s deadliness are more widely believed. Even in August 2021 when almost all low-risk cases in metropolitan areas isolated at home, the vast majority of positive cases were still being put in hospitals and hotels in prefectures like Yamaguchi.

Measures whose primary purpose is infection prevention can be justified only when their effectiveness is expected to outweigh the disadvantages of restricting people’s liberty. Accepting an imbalance between the effectiveness of interventions and restrictions on basic human rights means that the government will continue to accept restrictions on basic human rights beyond the minimum necessary. Additionally, sufficient attention needs to be paid to the fact that continuing to subject cases and close contacts to coercive measures causes others to avoid, prejudice, and discriminate against them.

Therefore, we believe that the government should promptly declare that COVID-19 will be removed from the scope of measures to prevent infections.

If anyone can think of a single Covid mandate/restriction whose effectiveness outweighed its disadvantages, please let me know.

Overall, I support what Muto et al. are saying. Upholding the rights of cases and contacts has not been a popular position, and I think it shows even greater commitment to human rights than opposition to society-wide restrictions on healthy people. The main problem is that their request is 3 years too late.

The excessiveness and ineffectiveness of these measures for a flu-like virus were predictable and in fact predicted. In its 2019 pandemic response guidance, the WHO recommended voluntary isolation of sick individuals but stated “ethical concerns may arise when isolation interventions are mandatory; the main concerns being freedom of movement and social stigma.” It also recommended against both contact tracing and home quarantine of exposed individuals because these measures had “no obvious rationale.” Admittedly, the WHO has changed its tune a bit since then.

Muto et al. touch upon the social stigma faced by cases and contacts as a result of the government’s response, but that’s what many people fear most, not potential fines for noncompliance under the IDA. Japan is still Covid crazy, but it’s worth recalling the height of fear and loathing in 2020. A recent article in the magazine Post Seven reviews some of the lowlights of that time, which were most common out in the countryside.

• Positive cases were treated like villains. Their homes were graffitied and had stones thrown at them.

• Some people lost their jobs for being infected, and children of medical personnel were discriminated against.

• There were “crackdowns” by the “mask police” and people hunting for cars with number plates from other prefectures.

• When school events or other events were held after careful consideration, complaints and criticism poured in.

• Bars and restaurants that opened [during the first state of emergency] received harassment like abusive phone calls and posters.

• When city residents people visited their parents in the countryside, neighbours were harshly critical.

There’s a simple lesson here: if an infectious disease is classified alongside Ebola, people who are confirmed or are suspected to have it will be treated as if they had Ebola. It’s unsurprising that the media that created that social atmosphere has no interest in reporting the views of Muto et al.

In surveys, consistent majorities have prioritised Covid restrictions over human rights. Below is from the Asahi in May 2022 after Japan had gone through six Covid waves.

Sixty-eight percent of respondents felt closer to the first option of doing everything to control new infections even if that meant restricting individual rights. Twenty percent chose the other option of putting priority on protecting individual rights.

In last year’s survey, 83 percent felt closer to the first option, while only 10 percent sided with the second option.

Obviously, the question itself is a clear example of media bias since restricting rights doesn’t control infections. But because the majority of the public can be manipulated to support the government’s preferred policy, this makes constitutional restraints on government powers even more important.

The ruling Liberal Democratic Party has long wanted to revise the constitution to remove such restraints during declared emergencies. The wording of its proposed emergency clause says constitutional provisions “relating to fundamental rights shall be respected to the greatest extent” during declared emergencies, but this leaves the door open for the government to restrict rights if an excuse is available. If the way Japanese politicians have interpreted “least infringement” is a guide to how they’d interpret “respected to the greatest extent” given the chance, they should definitely never be given the chance.

And during Covid, Japanese politicians haven’t just stretched the meaning of “least infringement”; they’ve bent the meaning of “emergency” completely out of shape too.

Japan’s legally questionable emergencies