Tommaso Virgili, Postdoctoral Research Fellow, WZB Berlin Social Science Center
“We will come out of this better people”, was the Italian mantra recited when the COVID-19 pandemic erupted. Out of it, we are not yet; but worse people, we already are.
America Leads the Way
The unprecedented polarization in the United States is a good example: never in history had we seen a President of the United States inciting (or not halting, depending on different versions of the story) a riot against what is arguably the most sacred temple of democracy in contemporary world. And that was only the tip of the iceberg of ongoing radicalization on both the left and the right.
On the one hand, there were white supremacists, rifles in hand, cheering for the “boogaloo” and the race war; on the other hand, ANTIFA and radical BLM protesters torched public buildings and militarily occupying parts of cities to establish police-free dystopian enclaves, notably in Seattle and Portland. In other cases, we have even seen the two groups acting in concert, like in Richmond in July—yet another demonstration that extremists have more in common than the things that divide them.
The roots of this polarization are distant, but the pandemic has exacerbated social discontent and created a fertile ground for more chaos, as demonstrated by those Militias that, in Texas, embraced weapons to “defend” the shop owners who violated the lockdown.
Europe: Same Problem, Different Reasons
Is Europe doing better? Not at all, although for different reasons.
In a recent article for the Financial Times, Camilla Cavendish, former head of the Downing Street policy unit and Harvard senior fellow, warned that individual liberties and the rule of law are at stake due to anti-COVID measures, even in democratic Europe. What is worse, we are getting a bit too comfortable with the idea. Citing data from Freedom House, the author reported that no less than 80 countries in the world have used COVID-19 as an excuse to curb human rights. In Europe, the example that immediately comes to mind is Viktor Orban’s Hungary, where a March 2020 parliamentary bill gave the government the authority to rule by decree with no end date. While the law, in this form, was revoked in June, critics have pointed out that the new bill still grants exceptional and unchecked powers to the government. However, it would be delusively self-reassuring to relegate the authoritarian appeal to dictatorships and wannabe-autocrats. Good, ole Western Europe, albeit vaccinated, is still not immune to the virus of unchecked powers.
One such example is the United Kingdom, argued Cavendish—in good company with legal commentators from prestigious institutions who have advanced pointed criticisms against the U.K. Coronavirus Act 2020, both on procedural and substantive grounds. As to the former, they have pointed to the insufficient involvement of Parliament and the lack of transparency and of mechanisms of judicial review. As to the latter, they have denounced the abnormity of the measures allowing the government to suspend key democratic freedoms, such as the right to demonstrate, for as long as two years, and the police to administratively (i.e. without a judge’s order) detain “potentially [sic] infectious persons”. It would be interesting to know who is not potentially infectious, in an epidemic with a high toll of asymptomatic cases. And indeed—surprise, surprise—the review launched by the Crown Prosecution Service (CPS) has found that, at least between May and September 2020, “every single charge under this part of the act has been unlawful”.
Elsewhere in Western Europe things are no better.
In Germany, a proposal was forwarded to intern quarantine violators in “detention camps,” creating a sensation given the Germans’ record on such matters, and this dystopian measure was, on examination, as unnecessary as it was sinister, considering that less than thirty individuals have been found guilty of this crime between May and December 2020: hardly a national emergency among a population of 83 million.
In my home country, Italy, a system of de facto house arrests and other serious limitations on key constitutional freedoms have been imposed through administrative acts of the Prime Minister that are implemented without the scrutiny of either the parliament, the President of the Republic, or the Constitutional Court. We have thus become sadly accustomed to tragicomic scenes such as drones used to catch and fine lonely runners on deserted beaches, and police forces checking people’s shopping bags and deciding on the spot that a bottle of wine and a pasta box could not be considered valid excuses to violate the confinement. Perhaps adding tomato sauce would have avoided the fine? After all, everyone knows that no decent Italian would eat boiled pasta alone.
According to several jurists, including all former presidents of the Constitutional Court, and as confirmed by court decisions, these acts have gravely violated the Constitution on both procedural and substantive grounds. Among the most notable criticisms: the false equivalence between the sanitary emergency and a state of war (which grants wider power to the executive); the wrong premise of considering the right to health pre-eminent over all the others, rather than one to be balanced; the lack of proportionality and proven necessity of the restrictions; and, even more conspicuously, the use of an administrative act to interfere with personal freedom, which Article 13 shields by requiring a legislative act and the order of a judge for any kind of restrictions.
Legalism and Lockdowns
In fact, all around Europe courts have struck down different anti-COVID measures as lacking one or more of the justifications provided by international, supranational and domestic law for suppressing individual rights—namely: legal basis, proportionality, and necessity in a democratic society. These judgements follow, inter alia, the requirements of the Council of Europe on, “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis”. According to the Council, “even in an emergency situation the rule of law must prevail”, measures must be temporary, and they must observe the principle of necessity and proportionality. In a word “the power of the government to issue emergency decrees should not result in a carte blanche given by the legislator to the executive”.
And yet, state authorities have sometimes reacted even to judicial rulings in the same way they have done with whoever has dared question them in years 0 and 1 CE (COVID Era): ‘don’t bother our effort for the Supreme Good with such irrelevant trifles as the rule of law’. One striking case was that of the Dutch Prime Minister in February 2021: facing a court decision declaring a widely contested nationwide curfew illegitimate due to a lack of legal bases and necessity, he simply replied: “If the curfew would not have the right legal basis at the moment, it does not mean that it is not necessary”. Similar was the reaction of the president of the Belgian Chamber of Representatives: responding to an appeal about the legality of lockdown measures filed by the national Human Rights Leagues, she admitted that, “currently, indeed, there is no law governing [the ministerial decrees]”, before simply brushing off the rule-of-law complaint arguing that those measures are a “necessity” due the urgency of the situation: “il faut faire contre mauvaise fortune bon cœur”. Sic.
At the risk of appearing overemphatic, I believe the gravity of such words being proffered by the representatives of European democratic institutions cannot be stressed enough: unable to defend the legitimacy of the most severe restrictions of individual freedoms since the Second World War, their response is something along the lines of: ‘Okay, perhaps we aren’t allowed to do that, but it doesn’t really matter’. The constant justification is an apodictic “necessity” that is never proven to be the least intrusive means to attain the end.
A Shifting Target
The fact that this “end” is obscure in the first place is a conspicuous part of the problem. At the beginning of the pandemic, it was about facing the actual emergency of overwhelmed hospitals, and especially intensive care units. Lockdowns were hurriedly enforced in response to the dramatic perspective of having very soon to let people die in their homes. With the second wave, the threshold set by governments has progressively drifted away from the clear and present danger of overwhelmed hospitals, to the “bad tendency” in the infection rate (no matter the gravity) and, in the latest shift, to the future possibility of the diffusion of viral mutations and the unverified risks attached thereto.
This is the picture of a traumatized continent that has been caught unprepared by the pandemic not only once (which was excusable to a certain extent), but twice (which was less so), and that has been swinging between continuously changing rules and parameters, without any clear guiding light except a vaccination campaign that—with the exception of the U.K.—is unfortunately proceeding slower than planned.
In all this mess, the common objective has been lost: are we trying to go down to “zero infections”, as certain health authorities recommend? And, if so, where is the legal (or even moral) balance? As two jurists (a magistrate and a lawyer) have noticed, no restrictive rules have been suggested, let alone implemented, to avoid the 16,220 deaths from pneumonia in Italy in 2018. This is not to say that COVID-19 ‘is just a flu’—the official data show a six-fold increase in the fatality rate from COVID as against pneumonia—but if our aim is “zero infections,” then this parameter should apply to all kinds of contagious illnesses, and at least a fraction of the draconian and all-encompassing measures enforced against COVID should have been used to save as many as possible of those 16,220 lives.
Can societies afford “zero infections”, whether from a utilitarian or an individualistic perspective? Probably not. To quote German Health Minister Jens Spahn: “The goal for Germany is to prevent the health system from being overburdened—and not to avoid every infection. To get it down to zero infections and keep it that way comes at a disproportionate cost in other areas of life”. (And yet automatic lockdown measures in his country are not liked to hospital occupancy but to the mere infection rate.) According to Franck Chauvin, French President of the High Council for Public Health, the focus should shift from the “contagion rate” to the protection of the most vulnerable people (as data clearly show that the exceptional danger to life from COVID is mostly confined to people over-70 or with preceding health conditions), because imagining more months of lockdowns is both unsustainable and unethical from a medical perspective.
In fact, after one year of stop-and-go strict restrictions, it is high time to assess their positive and negative impacts, namely: their necessity and proportionality in a legal sense. Why does a measure such as the curfew, which is considered so “necessary” in the Netherlands to the point of defying a court decision, get ruled out so quickly in neighbouring Germany? And why did the latter decide to enforce a nation-wide strict lockdown and maintain it for months even after infection rates sharply decreased, while Italy has established a regional “traffic light” system which automatically allows most activities to reopen under a certain level of infections? And how to explain that, for months, we have been told that 50 cases per 100,000 citizens was the threshold to lift restrictions, only to find one day that the golden number has now decreased to 35?
It goes on. How come the tragic rankings of per-capita casualties in the world are headed by European states—Czechia, Belgium, the U.K., and Italy—which enforced strict lockdowns? This, while Sweden, a country constantly depicted as the black sheep of the continent on the brink of disaster for refusing to adopt the same policy, is much better off than her locked-down peers with the same population, despite the high density of people in urban areas. Finally, just to contain questions to a manageable number, what is the negative impact of lockdowns on the lives of people, when it comes to job losses, domestic violence, psychological damage and suicides, and delayed medical exams and future deaths? Where do we strike the balance?
It should be evident that these are not abstruse matters for lawyers, but concrete questions severely impacting people’s lives in the here and now. The questions are all the more urgent once it is realized that even in the scientific community, there is no consensus on lockdown policies. A recent peer-reviewed article of Stanford researchers found “no significant benefits” from mandatory stay‐at‐home and business closures, and concluded that “similar reductions in case growth may be achievable with less‐restrictive interventions”. As of 9 March 2021, the Great Barrington Declaration—a petition against the lockdowns strategy initiated by three experts in epidemiology, biostatics, and public health policies; professors of medicine respectively at Harvard, Oxford and Stanford—has been signed by 13,705 medical and public health scientists and 41,455 medical practitioners worldwide.
As everything else related to COVID, even these debates have become unfortunately highly partisan, with experts running to television shows and other media to defend the ideological position linked to their political and public “constituency”. In certain cases, they have even contradicted themselves, giving opposite readings of events that are politically various but epidemiologically identical, notorious example is public health officials who said things like: “the risks of congregating during a global pandemic shouldn’t keep people from protesting racism”, “white supremacy is a lethal public health issue that predates and contributes to COVID-19,” and “the public health risks of not protesting for an end to systemic racism ‘greatly exceed the harms of the virus’.” All these were given as excuses, indeed encouragement, for the BLM demonstrations by health experts who, until the day before, had publicly shamed people congregating for other reasons.
Before being crucified in the public square, and rightly so given the amount of all-round experts that emerged on social media, I would like to make clear that I am not a public health scientist, and I lack the epistemological instruments to comment on epidemiological debates. However, I still may, and must, have a word on the social, political, and legal response to the crisis.
I can quite confidently say that it is idiotic to scream “the virus is fake” or “it’s a plot by Soros, the Jews, Bill Gates, 5G lobbies, vaccine companies”—and the limit to fantasy is the sky. I can equally say that it is unscientific and pathetic to have sanctimonious luminaries tell us that we are contagious only insomuch as we don’t behave in conformity with their political agenda.
Above all, I can and must say that it is illegitimate and unacceptable, for a government, to randomly and indiscriminately enforce liberticidal rules such as our liberal democracies had never seen or conceived in time of peace, without due and detailed motivation in terms of legality, necessity, and proportionality.
Within a system of rule of law, there are no exceptions to the Constitution, but only exceptions within the Constitution. Otherwise, it means that the system has already changed irreparably.
European Eye on Radicalization aims to publish a diversity of perspectives and as such does not endorse the opinions expressed by contributors. The views expressed in this article represent the author alone.
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