Japan’s legally questionable emergencies

While the Japanese TV has been getting giddy with excitement at the prospect of telling people to stay home and producing yet another round of eye-rollingly inane reports of irresponsible young people shamelessly socialising in central Tokyo, it’s conspicuously failed to notice a point made by two members of the national government’s Coronavirus Response Experts Committee, economists Fumio Otake and Keiichiro Kobayashi. In a document released on 11 November, they point out the law used as the legal basis for declaring the pointless states of emergency (SoEs) in prefectures described in my previous post (Novel Influenza Special Measures Law, SML) may no longer be applicable to Covid. This is because the case fatality rates in Osaka (大阪府) and Tokyo (東京都) in the 7th/BA4.5 wave for people under 60 (60歳未満) and over 60 (60歳以上) were comparable to those of the seasonal flu (季節インフルエンザ) (source).

They also point out that the SML states that in the case an infectious disease classified as a “type of novel influenza” (e.g. Covid) has severity similar to or lower than that of the flu, the response headquarters set up to decide measures to stop the spread of the disease is to be disbanded. In other words, the Experts Committee itself may no longer have reason to exist.

The only mainstream media coverage of Otake and Kobayashi’s opinion is by lawyer/commentator Hitofumi Yanai, who was similarly skeptical of the legal basis for the governemnt using the SML to impose another round of “intensive anti-coronavirus measures” (i.e., requesting bars and restaurants (B&Rs) to close at 20:00) in January.

But since the SML can only be applied for infectious diseases that have considerably higher severity/fatality rates than the flu, this raises another question: Since Covid has never been more lethal than the flu in Japan, how did the government legally justify using the SML before?

Death by Numbers

Possibly the nicest thing I’ve even written about Japanese government’s response to Covid is that, at least in 2020 and 2021, it wasted a lot less time, money, and effort on mass testing. But this also meant that a larger fraction of people who tested positive died, so the media told the public that Covid’s fatality rate was as high as 5%! Nobody ever bothered to tell the Japanese public that in 2020 the WHO published a study estimating Covid’s infection fatality rate to be 0.02-0.04% in Japan. That seems realistic since that the CFR in high-testing Singapore was 0.06% in mid 2020.

Obviously, as tests have increased, CFR has decreased. But the government still refuses to treat Covid like the flu because it uses the overall national data to claim Covid’s CFR is still too high among the elderly. But that’s because the fatality numbers are inflated by about 30-50% by counting people who die of other causes as Covid deaths if they test PCR+, as shown in Kanagawa’s data.

Red: Main cause of death (CoD) judged to be Covid. Green: Main CoD judged to be other than Covid. Yellow: Main CoD couldn’t be judged to be Covid or other.

The fatality rate issue alone makes the use of the SML legally suspect. But even if we ignore this, the SoE declarations themselves were problematic.

Inhospitable hospitals

The SML allows the ruling administration to set the criteria that must be met for invoking it. Under the four-stage scheme in operation during 2021, prefectural governors could use the SML to introduce “intensive anti-coronavirus measures” when the hospital bed occupancy rate for Covid patients exceeded 20% (Stage 3) or declare SoEs when it exceeded 50% (Stage 4).

But these bars were ridiculously low for two reasons: 1) Covid’s special status under the Infectious Disease Control Law means Covid patients are restricted to the beds local government’s have “secured” for them. For example, Tokyo has about 106,000 hospital beds, but Covid patients can only use 5283 of them.

2) Local governments have often filled these limited beds with people who didn’t need to be there because the national government has recommended the hospitalisation of people considered high risk regardless of symptoms. For example, when the governor of Aichi declared a SoE in Jan 2021, over 70% of hospitalisations in the prefecture were classed as mild or asymptomatic (軽症・無症状): 415 out of 692.

One of the purposes of using the SML is to prevent “disruptions to the provision of medical services”, which seems like a good way of describing what happens when filling limited hospital beds with mildly ill people. So Japanese politicians used the SML to fix a problem they themselves caused by giving Covid special treatment under another law.

But at least Aichi met the bed-occupancy criterion, no matter how ludicrously. In contrast, when Yuriko Koike couldn’t find enough ill old folk among Tokyo’s 14 million residents, she declared a “preventative” third SoE in Tokyo in April 2021 anyway. Again, Yanai was the only person in the MSM to notice the problem.

SoE declaration possibly illegal since criteria aren’t met. Tokyo’s bed occupancy rate is the 30% region.

And three weeks after the third SoE ended, a “preventative” fourth SoE was declared in Tokyo in July 2021. I don’t claim to be a legal expert, but the SML definitely doesn’t say politicians can ignore the criteria when they feel like it.

PM Suga says SoE declaration is a preventative measure, stresses significance of Olympics/Paralympics

NPIs on trial

But bending the law is forgivable if it gets results, right? Well, SML-based restrictions didn’t get any results, and I’m not the only one who noticed.

Japan also offers the only legal case I know of where both parties produced a statistical analysis of the effectiveness of Covid restrictions. I’ve already written about the Global Dining (GD) case in detail…

Tokyo's restaurant restrictions are found to be illegal.

…but it’s worth reviewing. After GD ignored the initial request to shorten operating hours, the Tokyo government ordered for GD to do so for the last four days (!) of Tokyo’s second SoE or pay a fine. The court found the order to be illegal because it didn’t meet the criterion of being shown to be necessary. During the trial, GDs expert witness Prof Satoshi Fujii had ripped apart the government’s amateurish analysis to show the SoE didn’t have a significant effect on infections.

Of course, the decision was about a specific order to one company, not the initial request to all B&Rs in Tokyo. But doctor and legal scholar Shigeto Yonemura says the restrictions focused on B&Rs in the third-sixth waves were legally problematic because their effect was so small.

Also, since the GD decision, the government didn’t use the SML the 7th wave in summer and doesn’t intend to use it in the 8th wave this winter. I can’t say if the court’s decision affected the government’s decisions, but I can say there’s a legal lesson for us all. Take it away, Lisa.