The thin line, between pushing out the virus, but not basic constitutional rights with it

The thin line, between pushing out the virus, but not basic constitutional rights with it

Since the lockdown of public life in Germany due to the corona outbreak the Berlin police has permitted exactly one demonstration. It was a demonstration by two people, standing 2 meters apart, that called upon people to keep on social distancing and upon the government to re-establish basic constitutional rights as soon as possible.[1] This demonstration of two stands to show that while in practice we currently live in exceptional circumstances that have led to prohibitive rules of all kinds, in principle rule of law is yet in place here. 

An identity built on freedom is now suspended

For people who grew up in post-war Western Germany, the right to travel abroad and move freely within the country, the freedom of association and the right to demonstrate have been constitutional elements of national identity as citizens of a democratic state. For former citizens of the German Democratic Republic these rights are what they protested for in the weeks leading up to the fall of the Berlin wall.

And yet, all of these rights are largely suspended now, and the government has imposed a curfew on an entire nation – a means often associated with authoritarian governments and their attempts to weaken opposition. This seems to be the only way to keep the virus from spreading too fast and preventing the health system from collapsing. Most people have accepted the limitations of rights imposed on them. Yet it remains to be seen for how long they will continue to accept the interference of the state in the private spheres of their lives. 

Nevertheless, the rule of law, democratic governance, the principle of the separation of powers and political accountability remain in place in Germany despite the new and often unprecedented limitations. Individual citizens have successfully challenged some of the restrictions imposed by regional governments. For example, the state of Mecklenburg-Western Pomerania wanted to ban any visits from locals to beaches and islands over the Easter weekend – but was overruled by a regional court.[2] For now, freedom of speech remains in place in Germany, and both media, civil society and opposition parties continue to openly discuss, question and sometimes challenge governmental measures. 

The consequences for democracy could be far-reaching

So, while in Germany, and in many other liberal democracies, there is legitimate hope that current restrictions will not become permanent and all basic constitutional rights will be re-established when the virus recedes, quite a few countries, within and outside of the EU, may very well be far less democratic after the coronavirus crisis than they were before March 2020. 

Even before the outbreak of the pandemic, the world was seeing a decline in freedom and democracy. In its most recent annual report, Freedom House – a US-based NGO that conducts research and advocacy on democracy, political freedom, and human rights – saw democracy in retreat worldwide. It recorded the 13th consecutive year of decline in global freedom with 64 countries being designated less democratic, and only 37 more so. [3]

In its report, Freedom House states that “many countries that democratized after the end of the Cold War have regressed in the face of rampant corruption, anti-liberal populist movements, and breakdowns in the rule of law.” At the same time, “even long-standing democracies have been shaken by populist political forces that reject basic principles like the separation of powers and target minorities for discriminatory treatment.”

Emergency powers can feed authoritarian impulses

In Hungary and Poland authoritarian and populist governments are making use of the state of emergency imposed due to the coronavirus outbreak to seize more power. The European Commission recently warned that any emergency powers assumed to combat the coronavirus outbreak risk upending democracy and must be subject to proper parliamentary and media scrutiny. [4]

Hungary’s Prime Minister Victor Orban secured an open-ended right to rule by executive decree and introduced a new law that gives the government authority to jail anyone spreading false information about the virus outbreak for up to five years. The gentle criticism of the European Commission is not likely to impress Orban. In Poland, the government is determined to go ahead with the presidential election, set to be held in May, with current president, Andrzej Duda, most likely to benefit from reduced campaigning and low voter turnout.

In the US, President Donald Trump, after hesitating to take the COVID-19 pandemic seriously at first, has declared the efforts to contain the spread of the coronavirus a “big war” – knowing full well that during a war democratic rights can be temporarily suspended and measures passed that extend state powers. By invoking the National Emergencies Act on 13 March 2020, Trump claims to now have “total authority” regarding lockdown regulation during the coronavirus outbreak – an assertion that constitutional experts find questionable.[5] Nevertheless, civil society advocates and liberal media see democracy at stake and warn that Trump could expand government control in a number of areas for unlimited time periods unless Congress and courts hold him accountable in case by case. 

We can defend our freedoms and public health 

All of this goes to show that we all must be vigilant and prepared to speak up and ask governments to ensure measures to contain the pandemic last no longer than absolutely necessary. Upholding and defending values such as freedom, democracy and the rule of law is not easy to do, but by signing online petitions, holding small political gatherings at a distance and with face masks or demonstrations with no more than a handful participants, we can ensure we maintain them. Constant reminders to keep on social distancing are as much required now as calls on governments to re-establish all basic constitutional rights as soon as possible. 

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[1] Redaktionsnetzwerk Deutschland: Zwei Teilnehmer: Erste genehmigte Demo während Corona-Krise, 31 March 2020. 

[2] NDR: Corona: Gericht kippt Oster-Reisebeschränkungen in MV, 9 April 2020. 

[3] Freedom House: Freedom in the World 2019: Democracy in Retreat.

[4] European Commission: Statement by President von der Leyen on emergency measures in Member States, 31 March 2020.

[5] New York Times: Trump’s Claim of Total Authority in Crisis Is Rejected Across Ideological Lines, 14 april 2020.