COVID-19, The Rule of Law and Democracy. Analysis of Legal Responses to a Global Health Crisis

Abstract

The COVID-19 pandemic caused a severe strain on health systems globally, while simultaneously presenting a social, economic, legal, political, and regulatory challenge. Where the efficacy of pandemic laws adopted by governments are a matter of life and death, the urgency with which action needs to be taken during a pandemic creates a law-making environment which incentivises rapid action without scrutiny and the use of power without restraint. Under such conditions, adherence to the foundational values of democracy and the rule of law come under increased pressure if not threat. The demands of emergency provide a convenient guise and means of justification for the use of power which only serves to consolidate power within the executive to the detriment of the separation of powers and weakening of the institutions of liberal democracy. This article provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the specific examples are drawn from across the globe to highlight common trends and concerns, specific highlight is given to the EU and its Member States. It offers an outlook on how to prepare for future emergencies by building on the lessons of the current one.

National governance and excess mortality due to COVID-19 in 213 countries: a retrospective analysis and perspectives on future pandemics

“…Government communication in a transparent manner helps individuals to understand the reason for implementing the government measures adopted [ 45 ]. Therefore, in a country with a strengthened rule of law, this understanding may have influenced citizens’ perception that their rights and freedoms were not being violated [ 46 ]. The rule of law provides legitimacy to the government’s restrictive measures.…”

The Impact of China’s Legal System on Public Health and Quality of Life during the COVID-19 Pandemic: An Empirical Study

“…Therefore, the government’s protection of the quality of public health and life through administrative law enforcement activities is reflected not only in its necessary regulation of social public affairs according to the law based on the need for pandemic prevention and control, but also in the punishment of acts that infringe on the quality of public health and life according to the law, thus realizing the important value of law enforcement actions in this protection. In addition, since government departments were given extensive law enforcement space during the pandemic period, such authorization not only maximized the social and public management value of government departments, but also highlighted the risk of damaging public interests by illegal or excessive exercise of power [ 30 ]. To avoid the situation where the government only pays attention to the effect of pandemic control and neglects the demands of public health and quality of life, it is necessary to emphasize the legitimacy of government law enforcement activities in realizing a connection between the two concerns.…”

‘We were the Guinea pigs’: Police uncertainty enforcing coronavirus regulations in the UK.

“…Knowing the police can, and do, use their discretion to enforce the regulations ‘can be both a blessing and a curse’ ( Alcadipani et al, 2020 ), and officers discussed a spectrum of ‘enthusiastic’ over-enforcement and ‘toothless tiger’ under-enforcement (P9). Legislative shortcuts, where laws are amended with little to no parliamentary scrutiny, leads to misinterpretation, diminishes respect for the law, and ultimately reduces compliance ( Grogan 2022 ). Officers were cognisant about members of the public ‘getting wise’ to what they could and could not do within the regulations: “Well, the scumbags have now started going to people’s houses and saying, ‘I’m living here now’, well mate, that’s the fourth house you’ve been living at in the crisis, so here’s your ticket.” (P5, 2020) “I think people know now.…”

“…This initial plan did not work as well as hoped, and a few weeks later in late March, the government rushed through a bill to enable the enforcement of emergency powers. Boris Johnson instructed people to ‘stay at home’, imposing a full national lockdown and new coronavirus regulations were announced without any parliamentary scrutiny, approval or subject to the usual democratic processes under the Public Health (Control of Diseases) Act 1984 ( Grogan 2022 ).…”