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An Inglorious Opportunity: Coronavirus and Emergency Powers

There has been a hurried spate of cancellations and suspensions of elections across the globe because of the risk posed by COVID-19. The trend is unsurprising. In the age of post-democratic process, suspending the procedure should only induce a cough of recognition. But it is troubling for those who take the ceremonial aspect of these things seriously. Such tendencies have worried Jon Meacham, who went to the history books to remind New York Times readers that President Abraham Lincoln, even during a murderous civil war, would still insist on having an election he could lose.

A state of emergency, in other words, need not be inconsistent with democratic practice, though Meacham conveniently sidesteps Lincoln’s tyrannical streak in suspending the writ of habeas corpus by presidential decree and his hero’s acknowledgment that the executive could “in an emergency do things on military grounds which cannot be done constitutionally by Congress.”

The short of it is that states of emergency are dangerous times for rights and liberties. To speak about the liberty of the subject during crisis is considered individualistic and indulgent. Put the collective and polity first and your silly notions of freedom a distant second.

States of emergency can be varied creatures. Declaring a state of emergency, writes Théo Fournier on the Italian example in responding to COVID-19, entails giving “the central government the possibility to intervene directly in the affairs of the sub-state administrations (regions, provinces, metropolitan cities and communes). The necessity of coordinated response to the crisis bypasses the principles of subsidiarity and division of competences applicable in normal times.”

Some infringements and containment of liberty may well be warranted, though the jurists warn about the need for time limits and proportionality. “Despite their severity,” comes Fournier’s assessment, “the Italian measures pass the test of a legitimate infringement.” The Italian Constitution contemplates limitations on the freedom of movement, and the measures undertaken were, for the most part, proportionate.

Pressing emergencies can furnish political opportunists with the means to fortify their positions. They seek the archive of executive justifications in times of crisis for assistance, claiming that the threat can only be extinguished with authoritarian measures. The use of the term “war” in combating infection, an erroneous formulation at best, has provided the convenient covering of an iron glove.

The German authoritarian jurist Carl Schmitt went so far as to suggest that states of emergency undercut the very idea of legal norms, repelling them as they take hold. States of abnormality demand certainty and focused responses, not vague measures heavily qualified by restraint.  The only certainty that can be provided is by the unchallenged sovereign who defines what Schmitt famously called “the state of the exception”. (This leads to a classic form of circular reasoning: to be sovereign, you need to be able to define that state of the exception; to define that state, you need to be sovereign.)

In France, President Emmanuel Macron’s heavy measures do have a duration of some two months. What has tended to be drowned out is the element of opportunity that has little to do with the virus, the sovereign exploiting the situation to make hay. Being an enemy of the 35-hour workweek and unfair dismissal provisions in the workplace, Macron’s COVID-19 measures give employers full rein to dictate working conditions. As Edward Lee-Six and Véronique Samson put rather tartly in Jacobin, France was witnessing what “seems closer to an opportunistic instrumentalization of the health crisis to intensify police impunity and the deregulation of labour.”

The authors also point out the most bitter of ironies regarding Macron’s measures: the weakening of the underfunded health sector which has left a shortage of qualified staff, beds and medical equipment.

Hungarian strongman, Viktor Orbán, is also aware of the golden chances. Coronavirus has presented him a stunning opportunity to shore up what was already an unassailable position. For years, through the formidable party machinery of Fidesz, the wily politician has been sounding the gong of patriotism and attacking institutions he deems disruptive to the Magyar project. Timothy Garton Ash, that veteran student of central European affairs, has gone so far as to label Orbán the foremost iconoclast of European liberal democracy, having spent a decade or so demolishing it. The independence of the judiciary has been compromised; electoral laws have been amended to keep Fidesz cosily in power; activists have been harassed.

For Orbán, the problem is less the virus itself than other familiar bugbears. “The government wants a strong Europe,” he said during a radio interview on Friday, “but the EU has its weaknesses.” Having failed to arrive at a unified plan to cope with the economic and financial impact of COVID-19, the Hungarian PM seemed filled with that I-told-you-so confidence. “In terms of coronavirus aid, for example, Hungary has received support from China and the Turkish Council.”

The “protecting against the coronavirus” law promises to give the prime minister near dictatorial standing. It vests the executive with unaccountable decree powers, which include extending the state of emergency declared on March 11 indefinitely. The bill enables the executive to overrule lawmakers. It suspends elections and keeps information on government actions in short supply, to be delivered via the speaker of the parliament and party leaders.  Journalists face hefty prison terms for reporting on information that might disturb the populace.

The Council of Europe, another one of those bodies Orbán tends to rile, has acknowledged that “drastic measure to protect public health” were warranted in responding to COVID-19. The letter by Secretary General Marija Pejčinović Burić addressed to the Hungarian leader is filled with legal reminders, though the field of states observing them is diminishing. Anti-pandemic measures still had to comply with “national constitutions and international standards.” Democratic principles had to be observed. “An indefinite and uncontrolled state of emergency cannot guarantee that the basic principles of democracy will be observed and that the emergency measures restricting fundamental human rights are strictly proportionate to the threat which they are supposed to counter.” Orbán’s snooty response was dismissive, urging the Council to “read the exact text of the law.”

The law in question also goes to show that the authoritarian can, when needed, adjust his position. Pro-government media outlets had, for instance, insisted earlier this month that the coronavirus pandemic was only deemed such by journalists engaged in “a worldwide experiment” of panic sowing. Whatever his previous views, Orbán is now gratified enough to accept the chances presented by this “invisible enemy” as, for that matter, are many others.

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7 comments

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  1. Neil

    Equity for equity – And let’s remember, this criminal political class got us into these crises. I’ll take the law seriously when Howard packs his bags for the Hague to answer a charge.

  2. nonsibicunctis

    The extreme measures being taken by the Australian government are a direct threat to our civil liberties and our democracy. The Coalition government has continually and steadily reduced those liberties and freedoms and the COVID19 pandemic has given it another mask for it to take even more drastic measures.

    The military should not be involved in quarantining people. Indeed, it is as though they were being interned, as was the case with Germans and others during WWII.

    The fines established for breaches of self-isolation measures, etc. are grotesque and represent a punitive approach to what is a health issue, not a criminal one. There is evidence in abundance that the most effective way to elicit a desired behaviour is by encouragement and reward, not by penalties. Allowing police officers to give ‘on the spot’ fines and imposing them at all is. counter productive and negative in the extreme.

    Fines are also a discriminatory penalty. They represent an entirely disproportionate penalty for the poor and are a trivial inconvenience for the wealthy.

    If punitive measures are considered necessary, those measures at the very least ought to be equitable across the community.

    This appalling government, whose tardy reaction and belated actions have almost certainly worsened our exposure to this pandemic, repeatedly shouts the message that we are all in this together and have to help one another and pull together collectively. Yet, at the same time it introduces divisive measures that are both inequitable and confusing.

    Even the subsidies it has offered are not distributed equitably, are (not unlike the monies allocated for drought and bush-fire relief) ridiculously slow in arriving and significant disadvantaged groups are ignored completely.

    An even greater disaster than the pandemic itself, is probably the diversion it has caused from the corruption. & incompetence of this government, the Prime Minister and other ministers in particular. Morrison and Hunt have been careful to voice that they are acting on the ‘best medical advice’, so that conveniently whatever happens they can blame it on others. The sports rorts exposures which were accelerating have disappeared behind the clouds of repetitive non-information relating to the Corona virus. The Coalition also now has a convenient excuse for the non-existent budget surplus becoming a very considerably existent deficit, to add to the national deficit which they had already doubled or tripled or more – I forget but do know that the last time I checked, they had been increasing the national debt at a rate at least 1.5 times that of Labor governments.

    So, Morrison and his right wing mates must be in heaven. Privately, so pleased that they have this massive crisis behind which to hide and within the shadows of which they can stealthily channel public funds to large corporations, private hospitals and other friends of theirs.

    As for our democracy, our freedom, our civil liberties and our (unspeakable, to them) human rights, well be quite sure that what is restored to us if and when this pandemic is over, will be less than what has been taken away.

  3. paul walter

    Thinking locally, I was surprised Qld let its council election go ahead.

    The real issue seems to be lack of transparency and some deliberate opaqueness, as leaders seem to get a bit more panicky and trigger happy.

    They want trust and do absolutely nothing to engender it.

  4. Andrew Smith

    Agree, and could add that many nations look (up) to the US however its own democracy has bj hijacked by oligarchs’ funding, influence and antipathy towards both transparency and democracy….

    Further, while various Australian MPs, former public officials and media types (Abbott, Andrews, Downer, former Ambassador to Hungary Mark Higgie and Greg Sheridan) view Hungary positively as an example of a good white Christian Nationalist nation, PM Orban (sharing political campaign advisors with Netanyahu) would probably be cautious.

    The EU provides significant funding, at least for the short term medium term, and with COVID-19 many Hungarians maybe compelled to return home due losing employment. Many of the same would be educated in the outside world and of the lower median age voting cohort, vs. many Videos and/or supporters. Further, as younger generations have showed in the past, they have fixed the government’s hand on e.g. a proposed ‘internet tax’ through hitting the streets.

    Again, Orban, and others, with a media about as diverse as Australia’s, merely need to replicate the constant political PR, media and campaigning strategies they see elsewhere e.g. the US, UK, Israel, Russia, Turkey etc. and Australia too.

  5. Florence

    Did I hear correct. Business in the USA shoring business premises up like on does in a cyclone? Expecting civil unrest? Many states closed down gun outlets. Appears the courts see guns as being essential, ordered gun retailers be allowed to open. Am I missing something. In times of civil unrest, obtaining a gun is essential?

    Civil unrest plus armed society leads to civil war.

  6. New England Cocky

    How will the COALition pay for the COVID-19 economic bailout of corporations seeking government handouts while paying little or no taxation in Australia?

    Something about corporate socialism comes to mind.

    Here are the accountancy figures that the MSM journalists cannot read for fear of losing their News Ltd jobs.

    https://www.michaelwest.com.au/cufflinked-comrades-neo-conservative-socialists-and-the-victims-of-the-big-bail-out/?mc_cid=aa1ba316c7&mc_eid=b7c8c98996

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