Around the world governments are adopting broad-ranging powers to battle COVID-19. But what will these powers mean for our democratic societies once the pandemic is over?
Author: Sonsoles Arias-Guedón, Full-time Professor of Constitucional law and Administrative law at IE Law School
We are slowly getting used to this new situation of confinement that we are experiencing on a global scale. Every day that passes is a day less in compulsory quarantine and, perhaps, another day closer to the end of this pandemic. As mere spectators, we observe events as they unfold and watch as they announce myriad measures to combat this terrible plague that is claiming thousands of lives around the world.
Measures such as closing airports and borders, blocking goods at customs, declaring states of emergency in all its forms (forms (whether that be a state of alarm, emergency, health crisis or national emergency), limiting and/or suspending freedoms as the free movement of certain goods and persons, closing or limiting the activity of public institutions essential to democratic life (such as parliaments and courts), and the centralization of all powers in favor of the national or federal executive (and therefore in detriment of the regional and local governments), are the common denominator for strategies adopted by different governments around the world.
Before the pandemic, we would have never let this happen
Yet no one seems surprised by the decisions that have been taken, which at another time would have jeopardized the basic structures of any democratic system. In normal times of peaceful and social coexistence, these actions would be sanctioned and rejected as direct attacks on our most basic constitutional and democratic principles. They would have been considered by many as populist, opportunist, radical and anti-democratic measures.
Actions which could, in principle, be labeled as anti-democratic restrictions on individual freedom are now the only ones, it seems, that can save us from this pandemic. After several weeks of isolation, this has gradually been accepted among public opinion.
These actions, which could, in principle, be labeled as anti-democratic restrictions on individual freedom are now the only ones, it seems, that can save us from this pandemic.
Panic: the best of anesthetics
Under these circumstances, widespread panic often functions as the best anesthetic.
No one questions the almost automatic extension of the state of alarm declared by the president of the Spanish Government, Pedro Sánchez, barely ten days after his initial announcement, or the lockdown of the various parliamentary committees that will not be able to control the government’s actions during this crisis.
The absolute ban on carrying out any professional activity considered non-essential by the government was put into effect by a special regulation (Real Decreto-Ley) and was also obeyed by all citizens within less than twenty-four hours. Likewise, the Italian government’s decision to grant extensive powers of public control and safety to the army has not been questioned.
Angela Merkel, calling the shots
There has been no apparent opposition to the German Chancellor Angela Merkel’s decision to centralize all health-related competences, bringing into question the effectiveness (and also the constitutional autonomy of the Länder) in managing this crisis.
Curfews imposed in countries as Chile have hardly been covered by the media. Similarly, the complete suspension of air traffic in Finland—a decision take by the Finnish prime minister Sanna Marin which allows only nationals and residents to return to the country—has been accepted silently.
Even British Prime Minister Boris Johnson—who wanted to stay away from his former European allies and the rest of the world—has had no choice but to order the complete closure of businesses along with the self-isolation of UK citizens. He has even hinted that more drastic measures are on the horizon, as the number of those infected and deceased increases.
China and the restriction of rights
Almost all of the aforementioned countries are those with democratic roots. Yet others have implemented measures that are even more extreme. China, for example, is an extraordinary case. The Chinese communist government has managed to control and contain the virus by developing a technological framework that keeps all of its citizens under strict control, both physically and virtually.
China’s big data system is capable of identifying citizens while they walk down the streets, taking their body temperature so that they can be tracked if infected. Thereafter, measures have been deployed in quick succession, with the concurrent restriction of individual rights and freedoms. These measures included a ban on the free movement of people, compulsory self-isolation at home and the categorization of citizens using a three-tier signal system: green, yellow and red, according to their level of infection.
The Chinese communist government has managed to control and contain the virus by developing a technological framework that keeps all of its citizens under strict control, both physically and virtually.
Hungary, Israel and Venezuela
Hungary has also been in the spotlight after its parliament recently approved a law which extends its state of emergency sine die and gives Viktor Orbán absolute executive power in order to manage the crisis. These powers include the ability to pass any measure through government decree.
Israel is not only dealing with the health crisis caused by the spread of the virus, but also with a political crisis sparked by the various tactics implemented by its prime minister, Benjamin Netanyahu, to prevent the opposition from gaining control of the Knesset (Israel’s legislature).
Of course, there are countries where political leaders and the pandemic are impacting upon citizens with the same intensity. This is the case in Venezuela. Unfortunately, the constant violation of human rights and freedoms in the South American country has meant the containment measures recently put into place by Nicolas Maduro and his government are nothing more than an additional order for citizens to incorporate into their daily lives.
Apart from China and other authoritarian regimes—where these severe adopted measures are simply another means for leaders to strengthen and consolidate power—, we will see if all these desperate actions (which involve handing over maximum powers to our leaders to the detriment of the most elementary democratic principles) are efficient measures against this new scourge.
And once all this is over, we will also see if our societies and institutions can gradually return to normalcy—something greatly desired by all.
Sonsoles Arias-Guedón, lawyer specialized in private and public law, teaches Constitutional and Administrative law at IE. Her research interests lie in the field of Constitutional law -more specifically in vertical separation of powers and unitary and federal systems. Her doctoral thesis obtained the recognition of the Centro de Estudios Políticos y Constitucionales (CEPC, Ministerio de la Presidencia de España) in 2015, and received the Premio Nicolás Pérez-Serrano para tesis doctorales, one of the most important Awards in this matter. She has conducted research at Harvard Law School, Bucerius Law-School (Hamburg) and Ludwig-Maximilians Universität (Munich).
Note: The views expressed by the author of this paper are completely personal and do not represent the position of any affiliated institution.