This article belongs to the debate » Power and the COVID-19 Pandemic
15 May 2021

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:

  1. 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);
  2. constrained rationalists – adopting broadly rational and law-abiding approaches but hampered by limited state capacity (e.g. South Africa);
  3. autocratic opportunists – capitalising on the crisis to further consolidate their power (e.g. Hungary); and
  4. 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 wo