Men wearing Japanese imperial military uniform visit the Yasukuni Shrine in Tokyo, Japan August 15, 2019, on the 74th anniversary of Japan’s surrender in World War Two. REUTERS/Kim Kyung-Hoon TPX IMAGES OF THE DAY
According to Japan’s Ministry of Health, Labor and Welfare, 18,515 people had lost their lives
to the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) by 24 January 2022. Of those deaths, four were minors, i.e., 19 years of age or younger. At this point, nobody can say exactly why the Archipelago of Japan has emerged relatively unscathed by the virus, but it has been clear for many months that Japanese have little to worry about.
Somehow, however, this has not translated into victory celebrations or a round of applause for government health officials for preventing a public health disaster, or much praise for the residents of Japan for their very diligent cooperation with government health guidelines. Indeed, the panicked language continues, such that we were recently told by journalists that Japan is “bracing” for the omicron variant. The government is now considering vaccine booster shots for everyone, not just health workers. The Nation’s borders were sealed quickly and tightly when omicron emerged in November. And even now we are told that we need greater security, and that local and national government agencies are willing and able to provide it, as long as we all trust and obey them.
With full awareness of the relatively low lethality of the virus, there is still widespread fear and a (mis)recognition that we are all in an exceptional situation now, one that will require, for our own health, greater austerity and sacrifices, and even more violations of Japan’s constitution. Nicknamed the Peace Constitution and promulgated in 1947, it is not yet clear whether it will be weakened through a “state of exception” in which the constitution is set aside “temporarily,” or through “amendment by interpretation,” or through actual legal revision, but what now appears almost inevitable is that elite ultranationalist forces in government will continue to take advantage of the present crisis to weaken the human-rights-defending potential of the Constitution, deprive the people of their civil liberties, and dismantle Japan’s fragile democracy.
With awareness of COVID-19’s impact on class struggle, we are now beginning to get a picture of who the losers and winners in Japan might ultimately be. Some of the key winners may include pharmaceutical and biotech companies, big business in general, universities and companies with public-private partnerships, liberal intellectuals in the fields of medicine and economics, pro-U.S. factions, and the ultranationalist political party Nippon Ishin no Kai (“Japan Innovation Party”), who are considering calling for the creation of an emergency situation clause in the Constitution. The losers will probably include not only the working class but also single mothers, victims of domestic violence, homeless people, small business owners and employees, immigrants, asylum seekers, and children without parents or with parents who cannot take care of them.
Healthy hygiene is important for us all, but we have to be careful that this discourse does not cause a loss of freedom, such as what we saw with the obsession with terrorism and national security after 9/11. Many people believe that a nation-state is supposed to achieve health security in the same way that it is supposed to achieve national security, i.e., by annihilating the enemy. If we are not careful, a similar bloodthirsty logic can take over, whether the enemy is a country, a terrorist, an insect, or a virus. Whether you use a nuclear bomb, a pesticide, or an mRNA vaccine, when the people are in a warring mood, the goal becomes annihilating the foreign Other. This is key to understanding COVID-19 deceptions.
Giorgio Agamben (1942-), the philosopher who, for many years, has deeply probed the question of the political uses of movements for greater “biosecurity,” emphasizes how the state exaggerates the bio-threats, just as it exaggerated terrorism and advertises itself as the savior of the people. He writes that “We could argue that, once terrorism ceased to exist as a cause for measures of exception, the invention of an epidemic offers the ideal pretext for widening them beyond all known limits” (Where Are We Now? The Epidemic as Politics, Valeria Dani, trans., Kindle edition [Rowman & Littlefield, 2021] p. 13). The “limitation of freedom” that is imposed by governments seems limitless, just as the desire for security is limitless (Where Are We Now? p. 38). Governments tell us that we need more security, we believe them, we desire more security, and then they intervene to satisfy that desire. (I have previously discussed the state of exception in Japan here). Just as governments were supposed to be the only ones who could protect us from terrorism, especially after 9/11, now they tell us that only they can protect us from nature.
The following quote often attributed to the Nazi war criminal Hermann Göring (1893-1946) seems appropriate for today. “Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.” Many advocates of peace are aware of this problem, how states gain power by exaggerating threats from the outsiders within our communities and from people in foreign countries. Fear of the unknown plays into their hands.
More specifically, the system or the “regime” that we are now struggling under is the modern ideology of the plague that was famously described by Michel Foucault in Discipline and Punish: The Birth of the Prison (1975) and other works. This is aptly explained by Carlos Salzani:
It has been noted that the COVID-19 pandemic is a biopolitical dream (or rather nightmare) come true—and in fact Foucault’s poignant analyses of the intertwined evolution of politics and medicine in modernity have been evoked from the very beginning. To describe the mutations of power between the seventeenth and eighteenth century, Foucault tellingly used three models based precisely on infectious diseases. In the lecture on 15 January 1975 of his 1974-1975 course at the Collège de France titled [“Abnormal”] and, more in depth, in the opening of the chapter on panopticism of Discipline and Punish (published a month later, in February 1975), he counterpoised the management of leprosy and that of the plague as two distinct modalities of control and organization: whereas the former required the leper’s exclusion from society, the latter installed a disciplinary mechanism that mobilized society in its totality. Both models, Foucault noted, are very ancient, but in a sense at the dawn of modernity the plague model became prevalent. According to Foucault’s by-now famous distinction, the exclusion of lepers (premodern power) is a negative model based on rejection and prohibition and pursuing the dream of purifying the community; the plague model (modern, disciplinary power), to the contrary, is a positive technology of power demanding the inclusion of the infected within a space meticulously analyzed, partitioned, organized, and controlled, with the concomitant production of an appropriate knowledge. Exclusion is replaced by quarantine, rejection by inclusion and the assignment to each individual of a proper name and a proper place. The goal is no longer that of purifying the community but rather of producing a healthy population. This model contradicts the “literary dream of the plague,” all those political fables (like Camus’ or Saramago’s) which liken the plague to orgiastic outbursts of lawlessness, disorder, and confusion; the “political dream of the plague” is instead precisely the contrary, “the marvelous moment when political power is exercised to the full. Plague is the moment when the spatial partitioning and subdivision (quadrillage) of a population is taken to its extreme point.” In truth, the plague is met by order, discipline, hierarchy, control: “The plague-stricken town […] is the utopia of the perfectly governed city.” (Author’s italics).
Salzani explains that Foucault defined biopolitics as “the peculiarly modern political focus on the preservation of life,” and notes that this goes back to Cicero’s words, Salus populi suprema lex esto. (The health/safety of the people should be the supreme law). In “An Essay concerning the True Original, Extent and End of Civil Government” (1690) John Locke wrote, “Salus populi suprema lex is certainly so just and fundamental a rule, that he who sincerely follows it cannot dangerously err.” And every American knows from our “Declaration of Independence” that we have the right to “life, liberty and the pursuit of happiness.” Many people are familiar with the words, “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” And ominously from the perspective of government officials, the Declaration also told us that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”
But the “Declaration of Independence” does not claim that safety and health are supreme, that they are far more important than liberty and the pursuit of happiness. There are limits to how much safety should be demanded, especially in times and places where governments do not respect human rights or democracy. Too much emphasis on safety can permanently damage democratic institutions. As the Japanese internist Dr. Irohira Tetsurō has argued, it is not possible for a society to simultaneously enjoy freedom of expression, freedom of profit, and zero [coronavirus] infections (Japanese weekly magazine, Shūkan Kinyōbi 1322 [26 March 2021] p. 34). Just as in China, some politicians in Japan have advocated the dangerous social goal of “zero corona.”
Kiuchi Minoru, like many politicians of the largely ultranationalist ruling party LDP, expressed worry about what would happen if Japan’s national legislative assembly did “not function when an urgent response is required.” Many Japanese believe that quick responses from the government will be necessary in the future when pandemics and natural disasters occur. This kind of concern was behind the 2020 revision of the 2012 Act on Special Measures against Novel Influenza, etc. (Shingata infuruenza tō taisaku tokubetsu sochi hō), which is now often abbreviated as the “Special Measures Law” in English. (The English translation of the law can be found on the page entitled “Japanese Law Translation” at the website of the Ministry of Justice). This Special Measures Law was revised on 13 March 2020 by the Diet (i.e., Japan’s national legislative assembly). In the midst of the crisis presented by the new coronavirus, the Diet granted the prime minister “the authority to declare a state of emergency in the event of the spread of an infectious disease that could gravely affect people’s lives.”
The next day, on 14 March, the revision came into effect, and Prime Minister Abe Shinzō gave a speech saying that the new law would prevent the spread of the virus and that the government would be asking the public to accept “substantial difficulties and inconveniences.”
At first glance, this new Special Measures Law sounds like a fair and reasonable response to a dangerous virus, until one recalls that the “state of emergency,” or “state of exception,” is precisely how the Nazis of Germany got their start. Some Japanese scholars of law have pointed out the danger of such a thing happening in Japan, such as the scholar of modern German history, Professor Ishida Yūji at the Graduate School of the University of Tokyo. The Weimar Constitution was once thought of as the most democratic constitution in the world, but it was through the abuse of the state of emergency clause (Article 48), which gave the president the power to issue an emergency decree, that Adolf Hitler rose to power. According to the Holocaust Encyclopedia,
Embedded within the Weimar Constitution was an article that encompassed the right/left political tension and would be fundamental to Adolf Hitler’s rise to power. This was Article 48, which stated that “If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces.” It also allowed the President to suspend civil liberties guaranteed in the Weimar Constitution.
This was the Constitution’s “fatal flaw,” and it is probably also what Asō Tarō referred to as the “Nazi Trick.” Asō, one of the right-hand men of the former prime minister Abe, is presently the Deputy Prime Minister and Minister of Finance. In 2013 he made the notorious suggestion, “Why don’t we learn from that (Nazi) trick?” (Various translations appeared in English). He made this statement in connection with the debate over the revision of the Constitution.
The fact that a minister who made such a comment and undermined the trust of the nation is able to retain his post shows the true nature of the [Abe] administration. The LDP [Liberal Democratic Party] will use this experience to try to write an emergency clause into the Constitution… A state of emergency gives the government the authority to suspend the normal constitutional legal order (i.e., separation of powers and the guarantee of human rights) and take emergency measures in emergency situations such as war, civil war, depression, and major disasters.
Ishida is the author of two books in Japanese relating to this fatal flaw in the Weimar constitution. He is the author of Hitler and Nazi Germany (Hitoraa to Nachi Doitsu [Kodansha Gendai Shinsho, 2015]) and the co-author with Hasebe Yasuo of Nazi “Tricks” and the State of Emergency Clause (Nachisu no “teguchi” to kinkyūjitai jokō [Shūeisha shinsho, 2017]). Thus it is not surprising that he was one of the first to raise the alarm when the Special Measures Law was revised in March 2020. For Ishida it was “incomprehensible” that all of the opposition parties, with the exception of the Communist Party and the Reiwa Shinsengumi, voted in favor of this law, when it does not require the prime minister to obtain prior approval from the Diet, who are the representatives of the people, when declaring a state of emergency. He said that the original 2012 law should have been corrected regardless of the fact that it was passed under the administration of the Democratic Party of Japan (Minshutō, a liberal opposition party to the left of the ruling LDP). This law gives the executive branch the authority to place restrictions on the fundamental rights of the citizens. He argues that it could easily wind up allowing Japan’s ultranationalist government to completely abandon the Constitution.
Hitler’s government, formed in January of 1933, was a coalition between the Nazi Party and the German National People’s Party (who were traditional conservatives). The Nazi Party had received 33.1% of the vote, so Hitler’s government initially came into power as a minority government. On 27 February 1933 the parliament building went up in flames. This was the famous “Reichstag Fire,” which happened just before election day (on 5 March). An atmosphere of panic and terror followed, and the Nazis blamed the fire on the communists.
On the day after the fire, the “Emergency Decree for the Protection of the German People” was passed. This was a declaration of a state of emergency. Democratic institutions were suspended, freedom of speech was restricted, and the right to own property and the right to trial before imprisonment were removed.
A month after the state of emergency was declared, on 24 March, the Enabling Act (Gesetz zur Behebung der Not von Volk und Reich, or “Law to Remedy the Distress of People and Reich”]) was rammed through the Reichstag. This law granted legislative power to the Hitler Cabinet. Hitler could now rule by decree. By July, Hitler and the Nazi Party had managed to establish a one-party system, with the Nazis as the sole ruling power. This was only six months after the Nazis had taken the reins of government. The parliament gradually ceased to function as a true legislature, to the extent that people wondered why the Reichstag even existed.
Ishida suspects that the government of Japan is likewise doing rehearsals for a state of emergency clause that would allow prime ministers to side-step the constitution. His warnings about Japan’s state-of-emergency legislative changes echo the those of Giorgio Agamben, who warned in 2020 and earlier that making the state of exception as permanent as possible is one of the primary goals of getting people to panic about biosecurity. According to Agamben, health security used to be “at the margins of political calculations” but is now becoming an “essential component of state and international political strategies” (Where Are We Now? p. 55). What certain politicians may now be hoping for is a permanent state of emergency.
Former Lower House Speaker Ibuki Fumiaki said at a meeting for an LDP faction on 12 March 2020, the day before the Special Measures Law was revised, that we must not “play too much or drink too much.” Suzuki Miho, the Mainichi journalist who interviewed Ishida, wrote that this statement reminded her of the World War II-era slogan in Japan “We will sacrifice everything for the victory” (Hoshigarimasen, katsu made wa), and she sensed anxiety about the virus among the people. With little known about it, there is an atmosphere of people coerced into enduring their suffering.
It does seem that when people are so focused on contributing to a “war effort,” they can easily lose awareness of the fact that their rights are being stolen from them. On 7 April 2020, a few weeks after the Special Measures Law became law, Abe did declare a state of emergency, making use of his new power under the revised law. Even at that early point, Abe wielded the mighty authority to restrict people’s right to freedom of movement and assembly. Yet, Ishida notes, a poll conducted by the Mainichi on the following day, indicated that 72% of the respondents approved of Abe’s declaration, and only 20% disapproved.
Another troubling feature of the Special Measures Law for Ishida is that it allows for a wide range of compulsory measures to be taken, such as requests to refrain from mingling with other people outside one’s home; restrictions on the use of schools and assembly halls; the prime minister’s new power to give instructions to NHK (Japan’s national broadcaster); and his power to expropriate land, buildings, and supplies. He warns that the day may not be far off when rallies and demonstrations become impossible, when people “clam up” no matter how dissatisfied they are with the government. In his view, too, Japan’s Diet is now weak, as was the Reichstag when Hitler became chancellor.
Many lawyers have made statements against the Special Measures Law, too. The Japan Federation of Bar Associations (JFBA), an organization of lawyers with 42,991 members, opposed it, in fact. Their concern was not with the parallels with Nazi history or the state of exception but with the negative effects on COVID-19 patients and businesses. They worry that patients may be stigmatized and human rights may be violated:
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.
This is exactly the situation that Agamben describes when writing, “the citizen no longer has a right to health (‘health safety’) but is instead forced by law to be healthy (‘biosecurity’)” (Where Are We Now? p. 56).
As the JFBA statement explains, in the past “…there was groundless discrimination or prejudice” against patients suffering from Hansen’s disease, (AIDS), and other infectious diseases in Japan. That is “the historical background to the legislation of the Infectious Diseases Act.” (The full name of the Infectious Diseases Act is the “Act on the Prevention of Infectious Diseases and Medical Care for Patients with Infectious Diseases,” or Kansenshō no yobō oyobi kansenshō no kanja ni taisuru iryō ni kan suru hōritsu. This law has been part of Japan’s infectious disease surveillance system since 1 April 1999. The JFBA opposes both these laws, the Infectious Diseases Act and the Special Measures Act). The JFBA statement also cites violations of worker’s rights, such as dismissals of unvaccinated workers; increases in hate speech against minorities; and people infected with COVID being unable to vote.
The Special Measures Law was established at a time when Japanese perceived, correctly or incorrectly, that Japan needed more biosecurity, and many people were unaware of the fact that a “state of exception,” in the sense of an ideological operation, was in the works. Although historians like Ishida and lawyers such as those with the JFBA have raised concerns, Japan’s journalists are not problematizing this law.
Yet, the Special Measures Law may be the greatest threat to Japan’s Peace Constitution in decades. This is because it opens the way for a state of exception in which prime ministers and prefectural governors possess the authority to issue decrees that have the effect of a law. While the Peace Constitution still exists, prime ministers and prefectural governors are able to do things during an official state of emergency that they could not normally do. However weak or gentle such decrees may appear, they could set the stage for much more Draconian decrees in the future, and there is no guarantee that future prime ministers and governors will not abuse their new power.
This Special Measures Law may even weaken the authority of the Diet, and violate Article 41, which says, “The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State.” Contrary to Article 41, the Special Measures Law gives the prime minister the authority to suspend certain articles of the constitution whenever there is a war, economic crisis, or pandemic. Setting aside the constitution in this way is dangerous because there is no clear end in sight. Japan has had at least three major crises in the last two decades: 9/11, “3/11” (the 2011 Tōhoku earthquake and tsunami), and the 2020 coronavirus crisis, and as a result of all three, the Constitution has been violated and rights have been trampled on.
Who can be sure, for example, that what happened to Japan and Germany during WWII, where people like Adolf Eichmann (1906-62) and Tōjō Hideki (1884-1948) went about their work calmly and confidently organizing massacres as if they were harvesting cabbage, will not happen again. Under a state of exception, when the constitution is repeatedly ignored, powerful officials are often in a position where they are able to say with a straight face that they are just following orders. No illegal acts are committed because the constitution is no longer in effect. In the case of Japan now, coronavirus justice depends solely on the judgment of a small number of individuals, primarily the prime minister and the regional governors.
Governors can “request” a state of emergency for their prefecture from the prime minister. The way this process seems to work is that the Ministry of Health, Labour, and Welfare distributes information to prefectural government offices and, based on that information, if the number of COVID-19 cases is sufficiently large, governors single-handedly make a decision to request a state of emergency for their region from the prime minister. If the prime minister is convinced (as he always is), he complies with the governor’s request and issues a state of emergency for that prefecture. It is a win-win situation for the prime minister and the governors. This system of declaring states of emergency empowers governors of regions with large case numbers, including ultranationalists like Tokyo Governor Koiki Yuriko and Osaka Governor Yoshimura Hirofumi (who has been likened to Adolf Hitler), not only liberals like Aichi Governor Ōmura Hideaki and Okinawa Governor Tamaki Denny. This overly empowers a small number of elite officials; encourages unconstitutional and undemocratic governance; and hurts the lives of many people, such as those working in the restaurant industry.
The lawyers group JFBA predicted the last problem. Governors, with the cooperation of the prime minister, can force business operators to “change their operating hours or take other measures and, in the event of non-compliance with the order,” they “can impose petty fines and publicize the fact of having issued the request and order,” which hurts the reputation of the business operator/owner.
There is a lack of regulation of governors as they punish businesses for not cooperating with their biosecurity protocols. The JFBA explains that the law does not provide clear criteria for issuing the request or order, “while the scope of the authority granted to the prefectural governors is quite extensive.”
Such orders from governors can cause “immediate” and “grave” consequences, they warn, for people who work at businesses operating under severe conditions, and those people could “lose their livelihood or even their lives.” They emphasize the difficult situation that restaurant owners find themselves in:
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 there for” for businesses that are affected.
What compensation will be given to affected businesses has not been spelled out and, in the future, governors could theoretically lash out at certain persons in an arbitrary and unjust way, e.g., attacking the restaurants that are on the side of their personal enemies or political opponents. Orders from governors could impinge on the rights of business owners to provide products and services. “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.” For restaurant owners, employees, and many others, the new emphasis on hygiene, sanitization, and biosecurity presents them with the danger of worsened health, stigmatization, and the loss of human rights. One person’s safety is another person’s danger.
Tokyo Governor Koike has, in fact, already ordered four restaurants to pay 250,000 yen (USD $2,000) fines for refusing to shorten their business hours, which they were ordered to do under her state of emergency. While it may be fine to call Japan’s biosecurity policies “lockdown lite,” these fines demonstrate that the Special Measures Law does have legal teeth in it. In the words of the JFBA, this law grants “broad authority to the prefectural governors for the purposes of containing the spread of COVID-19.” According to Japan’s constitution, people have the right to work (Article 27) and the right to own property (Article 29). Article 31 states that “no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” Under Article 21 Japanese are also supposed to enjoy the right of assembly and association. One could argue that the rights of the above four restaurant owners have been violated.
The political scientist and activist Douglas Lummis has underscored how dear the Constitution has been to the hearts of millions of people throughout the Archipelago of Japan:
Under the protection of the human rights provisions of the Constitution, Japan developed a politically active civil society, and this civil society in turn made protection, or better, full realization of the Constitution its principal piece of business. The country’s ruling elites made the amendment of Article 9 and the remilitarization of the country its first goal as far back as the 1950s; the civil society has so far prevented this. If the Constitution was not legitimized by the Diet vote in 1947, it surely was legitimized in the decades of struggle by the civil society to preserve it.
One of the most dramatic examples was the 1960 US-Japan Security Treaty Uprising (or “Anpō” protests. “By the time the protests climaxed in June 1960, an estimated 30 million people—about one-third of Japan’s population at the time—participated in some manner in cities, villages, and towns all across the nation”). These were protests for peace and the sovereignty of the people, against the US-Japan Security Treaty, which is the treaty that continues to this day to allow the U.S. to station troops on Japanese soil.
Peace-loving people and others throughout the Archipelago have often brought out the best in the Constitution, using it during the three quarters of a century since it was promulgated to build a foundation of peace, democracy, and human rights. Now the question is, “Will Japanese civil society stay strong, maintain a ‘politically active civil society,’ and continue to breathe life into the Constitution? Or, does the Constitution have one foot in the grave already?” For the sake of the people of East Asia and future generations of Japanese, let us hope that the former is true, that Asō Tarō’s ultranationalist dream of the death of the Peace Constitution does not occur. He was ignorantly but cunningly plotting for its death on 29 July 2013 when speaking before an ultranationalist audience: “It should be done quietly. One day everybody woke up and found that the Weimar Constitution had been changed, replaced by the Nazi Constitution. It changed without anyone noticing. Maybe we could learn from that. No hullabaloo.”
Lummis points out Asō’s ignorance: “The Weimar Constitution was never amended by the Nazis; the Nazis did not take over the government ‘quietly’.” Indeed, it was not “amended.” It was state-of-exceptionized. It is not necessarily true “that the LDP is aiming for a Nazi-type regime. They have their own, local, model for authoritarian government: the Japanese government as it was before 1945.” It is an undemocratic and militarist past that nobody in East Asia except former colonizers and colonizer-collaborators looks back on with nostalgia.
Many thanks to Olivier Clarinval for answering several questions about how current government health policies in the Global North are threatening democracy.
The post Annihilating the Virus Enemy in Japan
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