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 by authors in this global symposium will undoubtedly be the subject of ongoing scholarly and policy debates as the effects of the pandemic are felt in different ways across the world for the foreseeable future. At the risk of over-generalization, I will synthesize some emerging themes here, and in another blog next week.
- The negotiation of difference and its implications for freedoms and entitlements is the central legitimacy challenge in modern democracies.
The pandemic has not only presented an acute challenge for democratic institutions to balance the heterogeneous health needs and other rights of diverse but theoretically equal members of their societies. It also has shown how governmental responses affirmatively create 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.).
Responses also invest new and often life-and-death meanings into differences, e.g., between “legal citizens” and migrant workers in India, between social citizens and indigenous communities who remain in a liminal status in Peru, and elsewhere.
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 internalized social practices (e.g. social distancing) as well as a range of intimate as well as public behaviors, and in turn how scrutiny upholding democratic pluralism can be applied to the new demarcations of deviance that ensue.
- 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.
The most 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 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 these 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., Finland reports continued, effective oversight). Access to justice and judicial review has also been dramatically affected. To date, when there has been litigation, courts across widely varying contexts have been largely been deferential to executive actions, e.g., dismissing protection writ actions, finding judicial review was inappropriate. It matters whether judicial reticence is due to the limited facts available and wide-ranging speculation required by courts, or to abdication of roles as guardians of constitutional values, but that is subject to dispute in each case. 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 simple. Some governments already have made decisions that dramatically change policy directions in ways unrelated to the pandemic, or encumber governments with new financial obligations. 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 global health threat.
Further, if the epistemic value of a democratic republic lies not just in the formal legal institutions of state, but in people governing themselves by reason, it will be even more complex to reanimate deliberation, and in turn legitimacy, as millions are driven into poverty and struggle for survival, and while freedoms of assembly and movement remain limited, and freedoms of information and expression are deliberately suppressed.
- 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 mattered a great deal with respect to the degree of 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/vigilantism.
Octavio 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 hundreds of state and thousands of municipalities passing normative orders. When Bolsonaro threatened to use a decree to end the quarantine, the Supreme Federal tribunal has twice ruled that the president has no such power in Brazil’s federalist system.
As countries move toward re-opening, it will be important to understand 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 substance behind legal promises regarding formal economic and social rights as well as social protection.