Court: Tokyo’s order for shorter opening hours was illegal


On May 16, a court ruled that the Tokyo Metropolitan Government’s order to a restaurant chain to close early during the COVID-19 state of emergency was “unlawful,” but the ruling dismissed the claim for damages and company interests.

Presiding Judge Norihiro Matsuda of the Tokyo District Court said the order did not violate the Constitution and the metropolitan government could not be held liable for damages for issuing the order.

But he also said the order was “not particularly necessary” and “unlawful”.

Despite claiming a partial victory, Tokyo-based Global-Dining Inc. appealed the decision, which would be the first regarding government measures to prevent new coronavirus infections.

Global-Dining had refused to comply with requests from the Tokyo government to shorten the opening hours of its restaurants after the declaration of a state of emergency in the capital in January 2021.

On March 18, 2021, the metropolitan government ordered the company to close its 26 restaurants in the capital early.

Global-Dining filed a lawsuit against the government, saying the order “violated the Constitution which guarantees free business.”

The district court denied that request.

“It’s hard to say this was an unreasonable method, given the revised COVID-19 Special Measures Act.”

But the court also cited the revised Special Measures Act to criticize the government’s action.

Under this law, such an order can only be issued “when it is recognized as particularly necessary”.

The Cabinet Office cited the risk of a cluster of infections as a reason for considering making such an order, the court heard.

The company’s restaurants, however, had already taken virus prevention measures, which significantly reduced the risk of an infection cluster, according to the ruling.

The metropolitan government failed to grasp the true nature of the company’s anti-virus measures, nor did Tokyo provide a logical explanation for the order, the court said.

Therefore, the court said it could not recognize the order as particularly necessary and ruled it illegal.

The order was also rather ineffective as it was issued just three days before the state of emergency was scheduled to be lifted, the court said.

But the court concluded that the metropolitan government was not liable for the damages.

He acknowledged that a Metropolitan Government panel had said the order was needed and that the issuance of the order was unprecedented.

The court also cited precedent: “Where an unlawful action is unforeseeable, the decision leading to such action is not considered negligence under the law of state liability for compensation. “

Tokyo officials disputed the court’s description of the order.

“I agree that the order was necessary and appropriate for infection control measures,” Tokyo Governor Yuriko Koike said in a May 16 statement.

At a press conference, a metropolitan official criticized the court for calling the order “unnecessary”.

“Even if (the targeted restaurants) implemented infection prevention measures, it was impossible to reduce the risk of infection to zero because customers could talk loudly.”

The manager also said the company’s challenge may also have sparked a sense of injustice in other restaurants, which could then decide to continue operating into the night.

The official also disputed the court’s statement that the order had limited effect because it was only in effect for four days.

“The state of emergency will become less effective if the court decides that (the company) did not need to comply with the order because there was not much time left,” the official said.

Representatives from Global-Dining said the decision was “virtually in our favour.”

Rintaro Kuramochi, a lawyer representing the company, told a press conference that it was important for the court to recognize that a local government has a responsibility to provide a reasonable reason for ordering reduced opening hours.

“Local governments will need to be aware (of the decision) from now on, and they will be disciplined considerably (if they don’t provide the reasons for these orders),” he said.

Keigo Obayashi, a constitutional law professor at Keio University, echoed that sentiment.

“Deciding on infection prevention measures requires global judgment based on the opinions of experts and others so that local governments have wide discretion,” Obayashi said. “But the court went deep, recognized (the order) was unlawful and showed its position of strict control of the case.

“Going forward, local governments will have no choice but to be even more careful when deciding whether or not to issue an order to shorten opening hours.”

(This article was compiled from reports by Kyota Tanaka, Taichi Kobayashi, and Yuri Murakami.)


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