COVID-19 emergency measures and the impending authoritarian pandemic
COVID-19 has brought the world grinding to a halt. As of early August 2020, the greatest public health emergency of the century thus far has registered almost 20 million infected people and claimed over 730,000 lives across all inhabited continents, bringing public health systems to their knees, and causing shutdowns of borders and lockdowns of cities, regions, and even nations unprecedented in the modern era. Yet, as this Article demonstrates—with diverse examples drawn from across the world—there are unmistakable regressions into authoritarianism in governmental efforts to contain the virus. Despite the unprecedented nature of this challenge, there is no sound justification for systemic erosion of rights-protective democratic ideals and institutions beyond that which is strictly demanded by the exigencies of the pandemic. A Wuhan-inspired all-or-nothing approach to viral containment sets a dangerous precedent for future pandemics and disasters, with the global copycat response indicating an impending ‘pandemic’ of a different sort, that of authoritarianization. With a gratuitous toll being inflicted on democracy, civil liberties, fundamental freedoms, healthcare ethics, and human dignity, this has the potential to unleash humanitarian crises no less devastating than COVID-19 in the long run.
The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that causes the highly contagious1 coronavirus disease 2019 (COVID-19) was initially discovered in Wuhan, China, in late 2019, and was reported as a pneumonia of unknown cause to the World Health Organization (‘WHO’) on December 31, 2019.2 COVID-19 proliferated widely across mainland China, before spreading to almost every state in the world, with the WHO recognizing the outbreak as a public health emergency of international concern on January 30, 2020, and as a pandemic on March 11, 2020.3 As the rates of infection and mortality have risen exponentially on a global scale, health systems have struggled to cope with the rapid surge in infections and deaths, with both local and global shortages of testing equipment, personal protective equipment and ventilating machines, and insufficient local capacity of intensive care units and mortuaries.4 Communities, regions, and states have been severely affected with untold economic damage,5 accompanied by mass unemployment and welfare demand, supply chain disruption, panic buying, and a collapse in global financial and commodities markets.6 These have, to a great extent, been the result of measures taken by governments to stem the spread of COVID-19 infections, ranging from the compulsory closure of retail establishments and the imposition of home quarantine measures to the closure of borders and prohibitions on human contact and assembly, culminating in lockdowns of entire towns, cities, provinces, and even nations, inspired by the initial example of China’s Wuhan on January 23, 2020.7 The deleterious social and economic effects of this viral outbreak, many times greater than Severe Acute Respiratory Syndrome (‘SARS’) and Middle East Respiratory Syndrome (‘MERS’), will be felt for years to come, to say nothing of the extensive loss of human life.
There is no question that governments are confronted with a challenge of mammoth proportions, nor that many persons—healthcare professionals, public servants, and ordinary citizens—are endeavoring to do their utmost in an urgent and demanding situation. Nevertheless, as governments attempt to deal with the many adversities that the pandemic presents, there are alarming regressions toward authoritarian governance.8 Governments must be more interventionist in response to public health emergencies, sometimes even taking extraordinary steps such as the enforcement of social distancing, travel restrictions, and quarantine.9 In recognition of this reality, there is provision for derogation, and limitation, in key international human rights treaties during times of public emergency, including in the International Covenant on Civil and Political Rights (‘ICCPR’),10 the European Convention on Human Rights (‘ECHR’),11 the American Convention on Human Rights,12 and the Arab Charter on Human Rights.13
A public health emergency does not, however, give license to governments to cast aside their obligations to uphold fundamental rights and liberties, for governments are under scarcely disputable moral, and often legal, obligations to take seriously the burdens imposed on affected individuals, such as losses of personal freedom, of income, and of privacy, discrimination, stigmatization, and excessive stress.14 Not only are some rights non-derogable,15 according to the Siracusa Principles endorsed by the UN Commission on Human Rights in 1984, the ‘severity, duration, and geographic scope’ of any emergency measure that derogates from civil and political rights must be ‘strictly necessary’ to the relevant public health threat, and ‘proportionate to its nature and extent’.16 The Siracusa Principles also provide that measures dealing with a serious threat to the health of the population ‘must be specifically aimed at preventing disease or injury or providing care for the sick and injured’,17 and that a proclamation of public emergency and consequent derogations ‘that are not made in good faith are violations of international law’.18 In addition, mandatory measures should only be used as a last resort when voluntary measures cannot reasonably be expected to succeed.19 ‘[E]mergency declarations based on the Covid-19 outbreak,’ warned another UN body more recently, ‘should not function as a cover for repressive action under the guise of protecting health nor should it [sic] be used to silence the work of human rights defenders.’20
The COVID-19 pandemic has nevertheless sparked authoritarian political behavior worldwide, not merely in regimes already considered to be disciplinarian or tyrannical but also in well-established liberal democracies with robust constitutional protections of fundamental rights. Authoritarian governance in the name of public health intervention is understood in the present context as being characterized by diverse combinations of governmental and administrative overreach, the adoption of excessive and disproportionate emergency measures, override of civil liberties and fundamental freedoms, failure to engage in properly deliberative and transparent decision-making, highly centralized decision-making, and even the suspension of effective democratic control. In a nutshell, the pandemic has served as a powerful justification for authoritarianization—the process by which state authorities ‘slowly undermine institutional constraints on their rule’,21 through various combinations of the above—and populations have largely responded with obedience.
Global history has witnessed numerous instances of emergency powers serving as catalysts or facilitators of authoritarianization, whether in the use of emergency powers to consolidate presidential authority in the Weimar Republic,22 commit widespread human rights abuses in India under the tenure of Indira Gandhi,23 silence the political opposition in Cameroon,24 or promote the political agenda of the federal government in Malaysia.25 However, the COVID-19 pandemic is in modern times very different in being a global rather than a local or regional event, triggering legal or de facto states of emergency not just in one or two jurisdictions but successively in most of the world’s states. As states have hastily emulated measures adopted elsewhere, in particular through the imposition of curfews, nationwide lockdowns and travel bans, and escalation of citizen surveillance, a wave of authoritarian governance has swept the globe with profound, worldwide implications for democracy, the rule of law, and human rights, dignity, and autonomy. Reinforced by threats of criminal sanction, from fines to imprisonment, states have exerted tremendous vertical, paternalist power on citizens, despite serious questions as to the efficacy, sustainability, and proportionality of adopted measures. Day-to-day life was essentially suspended worldwide, with borders closed, social gatherings banned, business operations ceased, sports events canceled, and religious services suspended; no less than 1.5 billion students in 188 countries were globally affected by school closures.26 It is now clear, as the pandemic progresses through second and third waves of infection in multiple states, that governments have largely copied the authoritarian example of others, beginning in January 2020 with China’s unprecedented lockdown of tens of millions of people in Wuhan and other locations,27 buttressed by an uncompromising use of quick response code technology, facial recognition cameras, drones, and other means, to monitor citizens’ whereabouts.28
This Article studies a new, constitutional ‘pandemic’ that is rising in tandem with COVID-19: the regression of governance to authoritarianism, triggered by the invocation of public health emergency powers. This pandemic is constitutional because emergency powers, when abused, pose a grave challenge to the overarching objective of modern constitutionalism to limit state power in order to preserve liberty.29 The Article is organized as follows. Section II sets out an analytical framework comprising three domains in which authoritarian governance has manifested most significantly—namely, restrictions on personal movement, surveillance, and regression in healthcare ethics. Section III then considers the use of the COVID-19 pandemic as a pretext for the enactment of excessive and disproportionate emergency measures. While the ongoing nature of the pandemic and shortage of comprehensive national information necessarily preclude systematic and conclusive multinational case studies at this stage, examples are drawn from a reasonable geographical spread and regime diversity. These range from semi-authoritarian jurisdictions such as Cambodia and the Hong Kong Special Administrative Region of the People’s Republic of China, to established liberal democracies such as the United Kingdom and France, and illustrate that the multivariate inclination to authoritarian governmental and administrative overreach is not only found in more authoritarian regimes but also in liberal democracies, and that sufficient institutional mechanisms are needed to deal with governmental excesses and the psychological responses of populations in all states.
Section IV examines several examples of governments bypassing or suspending effective democratic control in the name of combating COVID-19, again drawing on experiences of both semi-authoritarian and liberal democratic states. Section V evaluates the imminent authoritarian pandemic brought about by the responses of governments and the international community to COVID-19, emphasizing a shift toward paternalist totalitarianism. Section VI sums up the key findings of the Article, concluding that a constitutional pandemic of this kind is not, and never will be, the right solution to a public health emergency. It must be stated at the outset, however, that this Article’s overall argument cannot be interpreted as a wholesale endorsement of a laissez-faire approach to pandemics, such as that adopted by Sweden,30 without committing the slippery slope fallacy. At issue is not the undesirability of implementing public health interventions but that of implementing disproportionate and excessive public health interventions that, through their content or manner of implementation, will systemically erode rights-protective liberal democratic values and institutions.31
II. FACETS OF AUTHORITARIAN GOVERNANCE IN THE NAME OF PUBLIC HEALTH INTERVENTION
As recently as in February 2018, the WHO classed Ebola, Zika, Middle East Respiratory Syndrome Coronavirus (MERS-CoV), and SARS among the 10 major threats to global health. These included a ‘disease X’, which envisaged that a ‘serious international epidemic could be caused by a pathogen currently unknown to cause human disease’.32 The following year would see ‘disease X’ come to life and, like SARS and MERS, it would be another coronavirus. COVID-19 was in this regard described by a WHO decision-maker as ‘rapidly becoming the first true pandemic challenge that fits the disease X category’.33