By Alicia Ely Yamin
The shape of the COVID-19 pandemic and legal responses to it are changing rapidly across different contexts. Nonetheless, many of the issues raised in this global symposium will undoubtedly be the subject of scholarly and policy debates for the foreseeable future. Here I synthesize three emerging themes regarding structural challenges and democratic design.
1. The negotiation of difference and its implications for freedoms and entitlements is the central legitimacy challenge in modern democracies.
The pandemic presents an acute challenge for democratic institutions to balance the heterogeneous health and economic needs, as well as differential effects of legal responses on privacy and other rights of diverse members of their societies, including women and disadvanatged minorities. Responses also invest new and often life-and-death meanings into pre-existing differences, e.g., between legal residents and migrant workers in India, and between full social citizens and indigenous populations living with liminal citizenship in Peru.
Moreover, governmental responses affirmatively create new axes of difference, such as by identifying workers as “essential” vs. “non-essential” and by policing boundaries of acceptability and deviance with respect to our behavior and embodied selves (e.g., physical proximity, purposes of movement, etc.).
As Stefania Negri points out in the context of Italy, as countries now begin to open up their economies, there will be further tests to the “limits of democracy.” Among these is certainly how “biopolitics” in Foucault’s term, will come to regulate populations through newly internalized social practices, as well as a range of intimate and public behaviors, and in turn how scrutiny upholding democratic pluralism can be applied to the new demarcations of deviance that ensue.
2. Already hypertrophied powers of executive branches are being strengthened, and will potentially have long-lasting effects on democratic legitimacy in many countries.
The speed with which the novel Coronavirus swept across the globe, and the magnitude of potential implications, called for rapid responses and, in many cases, sweeping changing to constitutional orders.
One dramatic example is India, where Anand Grover notes that with only four hours’ notice, and with one stroke of a pen, the government imposed a lockdown on the whole of the country. In virtually all of the countries included in the global symposium, “particular situations,” ”states of extreme danger,” “states of alarm,” “states of emergency” and the like were triggered pursuant to constitutional provisions or public health legislation in existence; sometimes powers were transferred through quickly enacted legislation, and sometimes without a clear legal basis.
Even when the arrogation of extraordinary powers by the executive was formally sanctioned by law, these country analyses show that the underlying level of citizen trust is crucial for the social legitimacy of measures enacted. Further, although executive decrees, regulations and “guidelines” have led to restrictions on an array of fundamental rights across the world, unsurprisingly, the tailoring and proportionality of measures, penalties for violation, and the extent of coherent explanation and sharing of information appear critical in supporting governments’ claims to obligatory power.
In the earliest responses to the pandemic, parliaments have largely been sidelined in terms of their oversight powers, although to varying degrees (e.g., Iceland’s institutions have continued to function; Finland reports continued, effective oversight). In some countries, legislatures must be consulted to extend emergency powers or specific orders while in others that authority is also transferred to the Executive.
Access to justice and judicial review have also been dramatically affected. As of mid-May, when there has been litigation, courts across widely varying contexts have been largely deferential to executive actions, e.g., dismissing protection writ actions, finding judicial review was inappropriate. Of course, it matters whether judicial reticence is due to legal challenges that ignore real public health evidence, the limited facts available, the wide-ranging speculation required by courts as to specific impacts, or to abdication of roles as guardians of constitutional values. Further, as the pandemic continues, co-equal branches of government may be expected to re-assert themselves. For example, Isabel Jaramillo Sierra reports the Consejo de Estado in Colombia will review 400 administrative acts related to the emergency.
Provisions for time-limited derogations from normal constitutional orders can be essential in sustaining the functioning of democratic institutions in the long-term. However, returning to a “normal” balance of powers — already often imbalanced before this crisis — will not be easy. History shows that “temporary” emergencies often become indefinite excuses for securitization. Some governments already have made decisions that dramatically change laws and policies in ways unrelated to health, as Csaba Győry notes in Hungary; others have structured economic mitigation and ‘bailouts’ in ways that will have lasting political consequences. Moreover, Executive branches are always charged with making policies regarding immigration, travel, and trade, among other things, which will continue to afford them enormous discretion in the face of an as-yet-untamed pandemic.
Further, the epistemic value of a democratic republic lies not just in the formal legal institutions of state, but in people governing themselves through reasoned deliberation. And it will be even more challenging to reanimate meaningful public engagement, if millions are driven into destitution, freedoms of assembly and movement remain limited, freedom of the press and information is deliberately suppressed, and privacy rights are infringed through surveillance technologies.
3. Institutional design in democracies has significant effects both for rights restrictions and protections, and for health and economic inequalities.
In particular, in federalist countries with differing distributions of legal competencies between federal and sub-national units of government — such as cantons, states, and provinces — the way competencies are allocated, and the scope of the authority reserved to each under the constitution has fostered significant heterogeneity in policies implemented during this crisis, as vividly demonstrated by Vanessa Gruben with respect to Canada.
In Australia, Paul Harpur notes that the indeterminacy of this complex matrix of inconsistent rules between the federal government, states, and municipalities has produced broad discretion of low-level “emergency officers” as well as “self-help” measures and vigilantism. In Mexico, Sofía Charvel argues it has led to states taking unjustified measures that violate human rights.
By contrast, in Switzerland, Jennifer Hasselgard-Rowe and Gian Luca Burci note that despite the supremacy of federal law in Switzerland, “Decisions whether to close specific public areas and the modalities of the individual and collective measures restricting individual liberties and freedom of movement were left up to the Cantons. Such reliance on personal responsibility is very rooted in Swiss political culture.”
Octávio Luiz Motta Ferraz recounts that federalism has had different implications in Brazil, where President Bolsonaro has consistently attempted to downplay the virus. Congress passed a federal quarantine law swiftly, which established a framework under which states and municipalities have passed orders. When Bolsonaro threatened to use a decree to end the quarantine, the Supreme Federal tribunal has had to rule twice that the president has no such power in Brazil’s federalist system.
Moving forward, it will be especially important to consider the effects of formal distributions of competencies, as well as other variables such as subnational and national electoral competitiveness and the existence of active civil society pressure, on the varying implementation of legal promises regarding economic and social rights and social protections in a post-pandemic reality.