Japan's nightlife, such as that offered in Shibuya Ward, Tokyo, is under renewed threat from Covid-19's resurgence. Photo: AFP

The Northeast Asia democracies – Japan, South Korea and Taiwan – have so far resisted China- or Europe-style lockdowns in their major cities to counter the spread of the novel coronavirus.

Now, Tokyo is quietly making preparations for exactly that.

However, Tokyo’s governor, lacking legal mechanisms, may have to rely on Japanese culture to empower her move.

As a result, it is not clear whether the lockdown – if, indeed, it happens – will come in the form of a polite request from the city governor for Tokyoites to stay home, or will be backed by tough measures with police on the streets and public transport at a standstill.

The postponement of the 2020 Summer Olympics on March 24 eased immediate pressures for Tokyo to put a good face before the world. That is just as well, for Covid-19 infections in Tokyo have shot up since. The capital now has 443 cases, and with the Hokkaido crisis seemingly mastered, Tokyo is the viral epicenter of Japan.  

Koike versus Abe

A lockdown is a drastic step requiring strong legal grounds – legal grounds that Tokyo Governor Yuriko Koike is finding she does not possess as she consults advisers.

She needs Prime Minister Shinzo Abe to first declare a national state of emergency based on influenza laws, which were revised in March. A state of emergency would hand local leaders considerable powers, but Abe is reluctant to make the declaration, for fear of the damage it would do to Japan Inc – already hammered by the virus.

Still, pressures are building. 

At a Monday press conference, Satoshi Kamayachi, an executive board member of the Japan Medical Association who also belongs to a government expert panel on Covid-19, said: “I personally feel it’s time (Japan) declares a national emergency,” and indicated other experts agree with him.

Hirofumi Yoshimura the governor of Osaka, Japan’s second city, also expressed his belief that Tokyo and Osaka need emergency measures to stem the tide of infections from unidentified routes. The purpose of a lockdown would be to stop the rapid spread of the virus, to avoid overloading medical facilities and to keep deaths and associated problems in check. 

Short of state-of-emergency powers, Koike has a number of levers at her disposal.

Requests or orders?

Koike’s repeated mentions of lockdowns has ignited a national debate and sent the national rumor mill spinning out of control.

It is a notable turnaround. “Lockdown” was absent from Koike’s vocabulary until the IOC postponed the Olympics on March 24. But if one had existed before, any pretense that Tokyo was all cherry blossoms, good cheer and low numbers of infected now no longer exists. 

At a press conference on March 25, Koike stated: “Nobody is out in [the streets of] Paris and New York. We need your cooperation to make sure Tokyo doesn’t end up the same way.” 

In France, people can’t leave their homes without a valid reason. Violators can be fined and if they are repeat offenders, arrested. In New York, museums, cinemas and public entertainment facilities were closed on March 13. Companies were ordered to let employees work from home. 

Was that a threat? Probably not, because while Koike can talk the talk, she is going to find it difficult walking the walk.

The legal hurdles Koike must leap before a full lockdown can take place are high. There is no comprehensive single law that makes a hardcore lockdown – closing the city’s points of entry or exit, restricting people to their homes and mandating the closure of businesses – possible.

City authorities can request people to stay at home and avoid infectious circumstances. But as lawyer and strategist Yoshikazu Tagami wrote an article on March 31 in Toyo Keizai Online, requests are not legally binding. Nor are there penalties for violations. 

But sources in the Tokyo Metropolitan Government – speaking on condition of anonymity – told Asia Times they are working out the contours of a lockdown and drawing up plans.

Currently, Koike is in the “polite request” phase.

Residents have been asked by the governor to refrain from situations where they will be in close contact with others, in poorly ventilated areas, and crowded venues. In a Monday press conference, Koike asked people to avoid night clubs, hostess bars and musical venues. 

But though the Ministry of Health warned people to avoid public transport, Koike did not mention Tokyo’s subway.

Famously overcrowded, densely packed and poorly ventilated, subways are potentially a major vector of the virus, carrying it across the city. Carriages, where the virus can live for hours on poles and hand-straps, are essentially fast-moving incubators.

And while Tokyo has requested companies to allow employees to work from home and introduce flexible commuting hours, many firms have not complied.

Still, last weekend, Koike ran a lockdown “test run.”

The long weekend

Japan is noted as an extremely orderly society with citizens responding positively to their government. This was visible in the aftermath of the disastrous conglomeration of earthquake, tsunami and nuclear crisis in March 2011. Looting was extremely rare and public order was maintained without difficulty. 

And there is a more recent precedent. Hokkaido – the northern prefecture which was formerly the epicenter of the coronavirus in Japan – put in place a lockdown after declaring a state of emergency. Despite there being no legal basis for the state of emergency, most people complied with the requests made. 

The Hokkaido ploy appears to have worked.

Last weekend, Koike’s request to Tokyoites to refrain from going out, partying or traveling unnecessarily resulted in reduced transport usage, emptied the streets of Ginza and left the iconic Shibuya crossing almost empty. Many businesses and malls voluntarily shuttered their doors. Formerly bustling nightspots were empty or near-empty. 

Though the cherry blossoms were in full bloom, few carousers enjoyed them. 

Weaponizing shame

But that was just for a weekend and it is unclear whether Tokyo merchants would shut down for a longer or indefinite period. Although there is nothing to force businesses to comply with a request to limit the usage of their facilities, they could be shamed into doing so, one expert said.

“The government will announce the names of businesses and institutions asked [to comply with limiting access, etc] and that will result in a high level of social pressure,” Tetsuro Kawamoto, a professor of criminal law at Doshi University, said in an interview with the Mainichi newspaper

According to a member of Tomin First No Kai, Koike’s political party which effectively controls the Tokyo Assembly, social pressures – including a police presence – could be upped.

Despite Japan’s vaunted social order, the constabulary should have no difficulty finding an excuse to hit the streets of a deserted city in force, the source told Asia Times.

“In order to prevent cat burglars and others from looting or taking advantage of the situation, the Tokyo Metropolitan Police will be on patrol,” he said, without as much as a nudge or a wink.

“Anyone found walking alone can be questioned by the police, as to why they are out. They can’t be arrested, but it will make people think twice,” he added. “If you have to justify your outing to an authority figure, that will make some people hesitate.”

A ‘real’ lockdown

Kawamoto told the Mainichi that a lockdown is currently difficult, but that could change with a declaration by Abe of a state of emergency. Under that scenario, Koike and local governors around the country would be massively empowered to restrict the spread of the virus.

In such a case, Tokyo’s government is considering asking all transportation operators to cease and desist – or severely limit – operations, if a state of emergency is declared, the source told Asia Times.

Members of the ruling Tokyo Assembly coalition say that Article 45 of the revised Influenza Laws would grant the city power to name transport operators “designated entities” that must comply with Tokyo’s “request.”

Tokyo runs its own subway system, allowing it to set a precedent. The other major subway system is run by Tokyo Metro Co, Ltd, a private company. However, its shares are held by the central government and by City Hall.  

Tokyo is a vast city, and if the subway were closed, many salarymen might climb into cars. In that case, City Hall has another weapon up its sleeve – the use of cars could also be halted by asking gas stations to shut up shop. 

Moreover, a state of emergency empowers the metropolitan government to use land and buildings for medical institutions and quarantine without the consent of their owners.

The city government has already debated creating a new ordinance that could possibly restrict movement and impose penalties for those who violate restrictions. However, legal advisors felt that an ordinance enabling a lockdown of the city would be a violation of the constitution. 

Absent a state of emergency, Koike has one more possible option

Devil’s alternative 

Tokyo could force a total lockdown of parts of Tokyo for at least 72 hours – and possibly longer. Very recent changes in the law have made that possible. 

In the Diet on March 11, Japan’s Economic Revitalization Minister, Yasutoshi Nishimura, who is in charge of the revised law enacted to fight the outbreak, admitted that a city government could use Japan’s Infectious Disease Law to limit movement and lock down a city.

Article 33 of the law allows for a local government to limit transportation to an area where a massive infection is taking place. It also empowers it to stop all transportation into and out of the location.

Nishimura asserted that the current law was intended for use in cases of Ebola and other limited infectious diseases and that coronavirus was not included. But on March 26, the law was revised to include the coronavirus.  

And – theoretically at least – the 72-hour timeline could be lengthened. 

Still, most experts feel it would be a draconian measure and the precise mechanism of enforcement is unclear. Nishimura on March 31 reiterated his stance – also Abe’s – that a lockdown of Tokyo would deal a major blow to the economy. 

So unless Abe shifts stance, Koike’s options are limited.

However, at a time when global privacy advocates are already concerned that some crisis laws and practices could continue well after the pandemic passes, some in Japan fear that Abe might defy the business lobby and call a state of emergency – to satisfy his own agenda.

Power grab?

It is no secret that Abe’s LDP is pursuing the politically Herculean task of constitutional change – notably to overturn restrictions on the state’s armed forces

Carl Goodman, an expert on the legal system in Japan, in his 2017 essay The Threat to Japanese Democracy: The LDP Plan for Constitutional Revision to Introduce Emergency Powers, explains the history of the LDP’s push to revise the constitution by adding a clause that would grant the prime minister and cabinet vaster powers than they hold at present.

In early March, LDP lawmaker and Abe ally Hakubun Shimomura said: “Human rights are important, but public welfare is also important. We should start discussions on constitutional revision in the parliament in order to handle the current situation.”

That rang alarms.

Even the conservative Nikkei Shimbun, on February 25, warned the LDP and Abe against harnessing the coronavirus for political purposes, publishing an editorial that urged the prime minister to more reasonably adapt the influenza laws to the situation. 

While there are no signs of any such power grab, if Tokyo did lock down, it would likely kick off protests against legislation granting Abe and his team sweeping new powers.