Power, Law and the COVID-19 Pandemic – Part I: The Year of Pandemic
Introduction
Since the declaration of the global health emergency the world has been in a state of crisis, but also – to many – it has been in stasis. Restrictive measures have kept us at home, in place, out of work, away from education, separated from friends and family for weeks and months, or even over a year. Even while mass vaccination programmes are heralded as the promise of a return to ‘normality’ and – for the law – a return to ordinary governance, many of the issues first identified a year ago have not been resolved, but rather have become more deeply entrenched. Executives now dominate decision-making to the extent that many appear to rule-by-decree. Parliaments have been marginalised, judicial scrutiny has been minimised, and restrictions on basic rights rest on an uncertain legal basis. There is now tangible concern that such changes and shifts in the balance of powers will become permanent. Socio-economic inequalities are expanding: the most vulnerable populations globally are the most at risk of COVID-19 but also most negatively impacted by measures adopted in response to it. The longer the pandemic extends, the more normalised such concentrated use of power and extreme measures limiting rights and civil liberties will become: a worrying ‘new normality’.
Involving over 100 contributors worldwide, the 2021 Power and COVID-19 Pandemic series builds on the 2020 COVID-19 and States of Emergency Symposium to again provide snapshot critical analysis of a world in continued crisis and extended emergency. This final commentary in the 2021 Symposium is divided in two parts: first, an analysis of the impact the pandemic has had on legal systems over the course of the last year; and second, an outlook on how to prepare for future emergencies by building on the lessons of the current one.
A Year Later: What Does It Mean to Be a ‘Successful’ Country?
As widely commented upon, top ranking states in health emergency preparedness according to the Global Health Security Index, have fared poorly in response to actual pandemic. To estimate (and rank) what is ‘successful’ assumes a common standard, and the inadequacy of global data sharing and reporting proves there is no objective measure. Ranking states’ response to the pandemic by use of indicators is always limited, as they are ‘bewilderingly diverse and mercurial’. Pertinently, ‘assessment frameworks are descriptive but not predictive: they can tell us the picture is bleak right now but cannot tell us what is to come.’
To prepare for that uncertain future, we can learn from global experience through comparative analyses and reports (of which there are now a wealth beyond the Verfassungsblog Symposia, including the CompCoRe, Lex-Atlas and COVID-DEM databases). Such data allows us, in turn, to advocate for the best practices which have correlated with the most positive outcomes, not only in management of the pandemic but in also securing the health and resilience of legal systems in the face of such pressures, and also those which embody the constitutional values of democracy, the rule of law and human rights. On this point too, I would endorse the position of Sheila Jasanoff and Stephen Hilgartner, leading the CompCoRe project, who argue that: ‘serious assessment of policy efficacy must look not only at health impacts but also at impacts on politics and the economy’. With this in mind, we may now consider the impacts of the pandemic on legal systems and governance, to identify continuing and emerging concerns as well as good practices.
Two Relevant Frameworks for Categorising State Responses
While globally, states have diverged in their responses to the pandemic, both in levels of restrictive legal measures and in abstract ideological terms, there are nonetheless common themes and modes of governance identifiable across the world. To understand such responses, two helpful frameworks have been advocated within the Symposium. The first, by Tom Daly, Director of COVID-DEM, categorises forms of governmental response among democracies (and recently demoted democracies, such as India) as follows:
- effective rationalists – suppressing the virus through rational fact-based policy, respecting maximal democratic functioning and the rule of law (e.g. New Zealand, South Korea);
- constrained rationalists – adopting broadly rational and law-abiding approaches but hampered by limited state capacity (e.g. South Africa);
- autocratic opportunists – capitalising on the crisis to further consolidate their power (e.g. Hungary); and
- fantasists – governments simply refusing to accept the reality of the virus (e.g. USA under the Trump administration, and Brazil).
The second framework by Sheila Jasanoff and Stephen Hilgartner identifies three modes of governance which can be used to understand both democracies and autocracies: control, consensus, and chaos. Countries such as Taiwan epitomised a control response, maintaining a coherent response and control over the key and interrelated areas of public health, politics and the economy. By comparison, Germany and the Netherlands exemplify the search for political consensus even as ‘trying to stall the epidemic entailed significant economic hardship’. A chaos response, paradigmatically the USA under the Trump administration, entailed conflict and contradiction over the policy in all three areas of public health, politics and the economy.
These complementary frameworks of analysis, with their varying emphases on democracies and autocracies, allow us to make sense of what might otherwise appear the bewildering diversity of responses to contagion across the world.
Power Dynamics – The Decision-Makers and the Domination of Executive Power
In such a complex, polycentric and multifaceted emergency as the global COVID-19 pandemic, a central question has been who should be the dominant decision-maker, and how should decisions be made. A majority of states’ responses have been primarily (if not exclusively) led by the executive powers of governments. This is unsurprising. The fast-changing situation of the virus necessitates an urgent response, one which is often not possible through (comparatively longer) legislative processes. Executive use of emergency powers continues to be the default for many states.
Executive dominance of decision-making in response to the pandemic is not necessarily an indicator of democratic deconsolidation or abusive practices (just as the declaration of a state of emergency is not innately problematic) but should nevertheless be treated with concern where it can create permanent changes to the legal system or a permanent shift in the balance of powers. In evaluating government action, we should always examine the use – not form – of law, and be aware of pre-existing national trends towards democratic deconsolidation and rule of law backsliding.
In examining the use of law, and particularly the widespread reliance on emergency powers and executive orders, we can see that executive aggrandizement has become an identifiable reality in many states, catalysed by the urgency of the need to respond to the pandemic, and the acceptance by a large majority of populations of the necessity of extreme measures. Such centralisation of power in the executive can be to the detriment of constitutional safeguards against majoritarian rule, and often such power is exercised abusively despite safeguards. Where manifest, this abuse of emergency powers continues pre-existing trends towards global democratic regression. In some states, the law has been ‘kept out of the way’ of political actors. In Sri Lanka the measures keeping millions under ‘quarantine curfew’ did not have a clear legal basis. A type of ‘executive arrogance’ in the Czech Republic culminated in an unconstitutional declaration of a state of emergency by the executive. In Poland, the presidential elections were cancelled days before they were scheduled to take place with the announcement by the government that the Supreme Court would find such an election ‘unconstitutional’. However, overconfidence in autocratic control of a situation – and the exclusion of expert advice – can easily produce drift and complacency, as evidenced to devastating and tragic effect in India and Malaysia.
By contrast to a focus on political control, in the Netherlands, the government response has been primarily led by the advice of epidemiological experts. On such expert engagement, South Africa offers good practice in the formation of Ministerial Advisory Committees (MAC), creating three in response to the pandemic on COVID-19, social and behavioural change, and on vaccines. While there is no obligation to follow the MACs opinion, the government indicated that it followed the advice 95% of the time, and has since made the advice public in support of transparency. However, such positive practice is not immune from criticism – particularly where the government has restricted disapproval of its pandemic management, even from within the MACs.
Moreover, reliance on expertise does not immunise decision-making from democratic and human rights concerns, particularly where meetings are held behind closed doors, the rationale is opaque or produced by only a limited number of expert opinions. The accountability of governments is ultimately to the electorate, whereas the responsibility (and accountability) of experts is to their field and their profession: the reasoning of both should be open to informed scrutiny. In human rights terms, the pandemic negatively impacts more than the right to health, but also liberty, equality, access to justice, education, livelihood, property, and privacy, and demands more than the (albeit essential) expertise of virologists. Broader and more interdisciplinary expertise is needed to inform response to the ‘shadow’ pandemics which are parasitic on the COVID-19 health emergency.
An alternative choice for the ‘decision-maker’ has been the military, particularly where military personnel have replaced medical professionals in decision-making. The justification offered for the militarisation of pandemic response has been efficiency and capacity, but (even if this is accurate) it risks undermining or otherwise delegitimising a civilian-led response, and can serve as a weight against the democratisation processes already weakened by a heavy-handed pandemic response. A consequent ‘militarised mentality’ can push executive choice towards ‘expansive, unaccountable emergency law’ reminiscent of dictatorship. Under such a regime, ordinary civilian administration can become marginalised, underfunded and dysfunctional. The Egyptian government expanded the jurisdiction of the military courts to include violations of coronavirus restrictions and other civilian matters. Under a militarised leadership, mere obedience, rather than offering justified reasoning and clear guidelines, is the strategy for public compliance. Hungary’s Prime Minister has been authorised to direct the military to use force against civilians ‘up to but not including death’ in the enforcement of pandemic measures.
A further and even more concerning trend has been weak or no pandemic governance altogether. A number of contributors have described chaotic decision-making indicating that executives are uncertain about policy choices or the objectives to be pursued which bolsters the perception that executive reasoning was not based on any sound scientific, economic or political rationale. Reliance on pseudo-scientific claims, or those with no scientific basis as in Brazil and Pakistan has correlated with the absence of central policy control, if not outright refusal to acknowledge the threat, and is connected with ‘policy inertia, poor messaging, and inconsistent enforcement.’ Where the governance is ‘chaotic, uncoordinated, inconsistent, and unpredictable’, public compliance is abandoned, and public trust is demolished.
Power Dynamics – Tensions between Centralised and Local Power
A continued tension during the pandemic has been between federal executives and regional or state governments particularly where it stems from uncertainty over the division of competences. For federal powers ‘to assume power is easier than to return power’, marking a reluctance in returning competences to devolved administrations when the urgency of the situation is relieved. Where political division exists – particularly ideological divisions concerning the threat of the virus – this can further undermine collective effort at control. Anti-epidemic rhetoric found support in regions of the Ukraine opposing the central government’s messaging. Potentially motivated by political desire to demonstrate autonomy, the Tigray region of Ethiopia departed from federal government action, which ultimately culminated in a military confrontation.
Uncertainty and a lack of coordination at federal level, or institutional incapacity to regulate regions undermines the efficacy of a national pandemic response as it necessitates local leaders to assume control without centralised or coordinated measures. The consequent intra-state inconsistency and a ‘patchwork quilt’ of regulations is confused, contradictory and unsustainable in the long term.
The Swedish model of decentralised powers and quasi-autonomous administrative agencies is positive where it enabled local expertise and fast response, but has nevertheless revealed areas which could not be regulated under existing provisions (for example, businesses could not be legally obligated to require employees to work remotely). Even where powers were speedily introduced at national level to coordinate the country’s response, they were not used. Opposing a trend of executive aggrandizement, criticism has centred on whether the central government had under exercised its powers. However, the country must nevertheless be lauded for a culture of consensus, the diffusion of power, and supporting localised expertise. Germany has been praised for intergovernmental dialogue, however, these discussions were held privately and regulations were still introduced through executive decree rather than through federal or Länder (state) parliaments. In Australia, the model of a National Committee – built on the principles of confidentiality and solidarity among committee members – mean that executive decisions are made behind closed doors, and so the decision-making process can be opaque. A positive outcome (as in Australia with near-zero infection rates) does not necessarily mean the best democratic processes are in place.
Where national policy is uncoordinated or poorly-managed, proactive local government can serve as a fast-acting, locally responsive body – particularly where the local governments coordinate civil society and private bodies and enjoy high levels of trust among local communities. However, localism can ultimately be hampered by a lack of resources, poor institutional management, or ‘the dominance of patronage politics, corruption and other problems’. Ultimately, what is most effective is a nationally coordinated response which is informed by intergovernmental dialogue, and which supports local innovation, expertise and response.
Rule of Law and Rule by Law – Legality and Legal (Un)Certainty
The rule of law values of legality and legal certainty are essential to the effective management of the COVID-19 pandemic. The early stages of the pandemic were characterised by extreme uncertainty as to which were the most effective strategies to limit risk and exposure – particularly where the virality and forms of transmission were uncertain. While far more is now known about the virus and the effectiveness of measures to control it, the same issues of legal uncertainty have been consistently reported across the world. We now have multiple vaccines, but it appears that a majority of states still do not know how to inoculate their legal systems against unhealthy practices.
Legal certainty means that law must be accessible, foreseeable, non-retrospective, consistent and stable in so far as possible. However, even a year later, measures continue to be introduced with little or no notice, published after they have come into force, or even applied without publication at all. The announcement of measures within hours of introduction or even with immediate effect has left thousands – sometimes millions – stranded abroad, forced to internally migrate, or queue for hours to receive a permit to commute the next day. Measures have been contradictory, and in some states, the public have had to rely on governments to explain legal orders in press conferences as they were unclear on the page.
The principle of legality requires that all state and government action is carried out in accordance with transparent and democratically enacted laws, and not the exercise of mere discretion. Nevertheless, many states have acted primarily with discretion resting on questionable legal bases for the most restrictive measures on the exercise of rights. Where constitutional provisions require that restrictions on constitutional rights must be based on express provision of statute, or through an act of Parliament, this has raised concerns about legality where executives have instead relied on secondary legislation or government-made orders. In some cases, executive measures have been retrospectively legalised where the legal basis for the measure was found to have been lacking or even non-existent at the point it was ordered. Laws pre-dating the modern era can be outdated but have nevertheless been used, and the unsuitability of the use of some pre-existing ordinary legislation has been highlighted in India and Cyprus, where colonial-era acts provided for arguably too much discretion for executive action without parliamentary oversight.
Good practices have been seen in New Zealand. Government has actively engaged in communication across a variety of media so that the population can understand the necessity of the measures adopted. In the early stages, the government and enforcement authorities were ‘circumspect’ in their enforcement where the legality of the measures was uncertain – and have engaged widely and broadly when remedying any legal deficiency.
Rule of Law and Rule by Law – Accountability through Parliamentary Oversight and Judicial Scrutiny
Parliamentary oversight and judicial review provide an essential function in every democracy by guarding against the potential abuse of power by government. One of the most concerning trends identified early in the pandemic and persisting more than a year later has been the marginalisation of the role of parliaments, as evidenced in inter alia Australia, Bulgaria, Colombia, Cyprus, India, and Iran. In some states, Parliaments have no role, or have been suspended. While deference in an emergency has served as justification for some of this lack of oversight, it also evidences pre-existing trends.
In France, despite the constitution of parliamentary groups to examine the government’s management of the pandemic, any effective scrutiny was weak and a reflection of 2008 reforms which gave the executive increased control over parliamentary business. In the UK, only five hours of parliamentary debate has been given to pandemic measures under the Coronavirus Act 2020 in the year since it was enacted. The Hungarian government, which had effectively become the EU’s first autocracy prior to COVID-19, capitalised on the situation of the pandemic to empower itself to all but rule by decree with limited possibility of accountability through either judicial review or parliamentary oversight.
Finland serves as an example of positive practices: immediate parliamentary scrutiny on the use of any emergency powers is required, as well as engagement with external experts, including independent constitutional law experts, by the specialised Parliamentary committees. The country also maintains a ‘continued commitment to the restoration of normalcy as a lodestar for any use of emergency powers.’ In Taiwan all control orders are subject to parliamentary oversight and must be submitted to Parliament ‘as soon as possible’. By contrast, in France, the new state of health emergency provides no such obligation for executive and administrative authorities to send copies of their acts to Parliament.
Even as a catalyst for the most concerning developments, the pandemic has also provided space for innovation in parliamentary practices. The government commitment in Singapore to promote the continued functioning of parliament and engagement with the public through live-streaming sessions, shows the potential and possibility for a ‘more robust form of democratic government’. These practices can and should be adopted: regular and mandated reporting to parliaments by ministers, the introduction of specialised oversight committees, and open and active engagement with the public through virtual sessions can manifestly improve democratic scrutiny and accountability.
The lack of parliamentary oversight, either by design or through deference, means that courts have become in some cases the only institution with direct oversight of government action. In some extreme examples, the courts have found astonishing numbers of penalties to be groundless (e.g. 90% of administrative proceedings in Ukraine; and in the UK, a cross-parliamentary group found that the offences related to infectious people under the Coronavirus Act 2020 have been so misunderstood and wrongly applied that all criminal charges under the Act are incorrect.)
However, issues have been raised where there is little capacity for judicial scrutiny, for example where an ouster clause can effectively block review of laws, or where a government removes access to the courts through pandemic-mandated closures. In Bangladesh for instance, all courts were initially shut down by the government, without further consultation, though later e-courts were allowed to operate during the pandemic. Even where courts are not closed, excessive deference to government control can ‘distort the requisite standards of judicial scrutiny’. On one interpretation, such deference could represent adherence to the ‘political question’ doctrine, acknowledging that democratic legitimacy on such issues comes from the legislature – not the courts. It can also implicitly recognise a lack of uniform standards based on scientific knowledge, or low awareness on the part of judges of how to weight relevant epidemiological evidence to make informed decisions on matters of public health. It is possible too that the speed and pace of change leaves little capacity for courts to develop a consistent line of judicial reasoning. Nevertheless, dissenting opinions on major constitutional questions of the legitimacy of government action have challenged judicial deference and majority reasoning particularly where it has had the effect of ‘watering down the principle of proportionality to mere rationality’.
The pandemic has provided opportunity for innovation-by-necessity, as the world has embraced an approach of ‘techno-solutionism’ through virtual proceedings in parliaments and court hearings. These innovations are not without practical challenges, as for example the lack of access to the internet. They also show the challenge of using technology to control the virus, while also protecting human rights. For example, the quasi-mandatory use of apps in Colombia without justification on their use or necessity raise concerns about privacy and surveillance. These challenges are not without solutions, and innovations should be embraced.