Emergency Clause

The Emergency Clause gives the government or the Diet greater authority temporarily during a state of emergency, such as a terrorist attack or a disaster. The so-called “national emergency powers” formed the basis for this legal provision. Opinions are split over whether or not national emergency powers are stipulated in the Constitution. Those who believe that they are not stipulated argue that they should be prescribed through constitutional revision. Those who reject the necessity to stipulate national emergency powers proactively argue that those powers are not stipulated in the Constitution. On the other hand, according to another interpretation, national emergency powers are stipulated in the House of Councillors’s emergency meeting clause in Article 54, Paragraph 2. That clause states that, “When the House of Representatives is dissolved, the House of Councillors is closed at the same time. However, the Cabinet may in time of national emergency convoke the House of Councillors in an emergency session.” That clause stipulates that if the House of Representatives is dissolved and an emergency occurs before the end of the general election, the Cabinet may convoke the House of Councillors, which can act on behalf of the House of Representatives, in order to avoid a non-functioning Diet. Although Japan has adopted a bicameral system, the House of Councillors has more power than the House of Representatives. The House or Representative can be dissolved, but the House of Councillors cannot be dissolved. In Japanese there are two terms for an emergency situation that are used interchangeably: “crisis” (kinkyū jitai) and “emergency situation” (hijō jitai). Here, we make no distinction between the two terms and simply refer to any emergency situation as an “state of emergency.” 

In 2012, a year after the Great East Japan Earthquake, The Liberal Democratic Party (LDP) announced a new draft of the constitution with a new chapter entitled “State of Emergency.” In that draft, a state of emergency would not have to go through the Diet. It is enacted as a cabinet order. The prime minister is also given the right to decide on government spending and give instructions to the heads of local governments. Then, in December 2012, the LDP was back in power and the second Abe cabinet was formed. The Abe administration continually brought up the idea of creating an emergency clause until Abe resigned in 2020. However, there was strong opposition to the LDP’s proposal on the grounds that it gave the prime minister too much power and unjustly restricted the rights of the people. People once again had a growing interest in the emergency clause in 2020 during the Covid-19 pandemic. The prime minister was given the authority to declare a state of emergency. Up until that point, such declarations were based on the Police Law, Basic Act on Disaster Management, and the Act on Special Measures Concerning Countermeasures Against the Novel Influenza (the Novel Flu Special Measures Act). During the 2020 pandemic, a state of emergency was declared based on a revised version of the Novel Flu Special Measures Act. Prefectural governors took measures to restrict some private rights, such as using land and buildings to open temporary medical facilities without the consent of the owners. This also made it possible to order medical supplies to be expropriated or stored. Because the suspension of business operations was based on a request that was not legally enforceable, demands from within and outside the government to give the state more authority during an emergency increased. On the other hand, some people grew more cautious, warning that the Abe administration was taking advantage of the pandemic to revise the Constitution and add a new emergency clause.

A proposal by conservative groups that promotes constitutional revision called for both the establishment of an emergency and the inclusion of the people’s duty to defend the nation (Shinkenpō Seitei Suishin Iinkai Junbikai) and the people’s duty to cooperate with the national government and local public entities (Sunrise Party of Japan). This occurred during a time when conservatives were criticizing the Constitution for encouraging excessive individualism and destroying the family in traditional Japanese society and the country’s strong social ties.