The COVID-19 emergency in the age of executive aggrandizement: what role for legislative and judicial checks?

Abstract

Extraordinary limitation of certain fundamental rights seems necessary in fighting the COVID-19 pandemic. Many countries have declared a state of emergency for that purpose. Yet, there is also a risk of misusing the emergency for power grabbing, especially in the current era of executive aggrandizement, democratic decay and abusive populist constitutionalism. In this setting the legislative and judicial checks on the executive create a dilemma. Their standard operation in the state of emergency could control the executive, but might also impair its capacity to fight the pandemic effectively. This article therefore focuses on the desired role of the legislature and the judiciary in COVID-19 emergencies. Although many constitutions address emergencies, they are often vague and leave considerable room for the involved actors themselves to adjust their behaviour. This article asks how parliaments and courts should use this de facto room. I argue that they should show some deference to the executive, its level depending on the stage and severity of the crisis, but should not clear the field for governments. They must modify their activities but not suspend them. My main argument is that the deliberative and scrutiny functions of the legislature and the disputeresolution function of courts are crucial not only for preventing the abuse of emergency measures, but also for increasing the effectiveness of emergency measures by improving conditions necessary for compliance. The legislature and courts can contribute to the higher feasibility and legitimacy of the emergency measures and thereby increase voluntary compliance, which is crucial for tackling the spread of the new coronavirus. The article illustrates these issues by way of the case study of the Czech Republica country experiencing its first nationwide state of emergency amid tendencies towards democratic decay and managerial populism.

Pandemic backsliding: Violations of democratic standards during Covid-19

“…Uganda) ( Murphy, 2020 ). Therefore, we consider vaguely formulated laws that allow the executive to rule broadly by emergency decree an authoritarian practice ( Ackerman, 2004 ; Bar-Siman-Tov, 2020 ; Petrov, 2020 ). As previously mentioned, Hungary's new emergency legislation would fall into this category; as would more extreme cases like Zambia where the legislature was adjourned sine die for several months in 2020 due to Covid-19.…”

“…This suggests that as countries grappled with incomplete information and difficult choices about how to appropriately respond to a novel virus, those that chose the path of authoritarianism have fared no better than those adhering to democratic norms. This suggests that when leaders present a trade-off between democratic norms and public safety, their rhetoric may only serve to facilitate executive aggrandizement ( Petrov, 2020 ). As such, pandemic-related violations of democratic standards should be closely monitored, otherwise crisis-driven responses could erode democratic norms and lead to long-term backsliding.…”

Worth the Sacrifice? Illiberal and Authoritarian Practices during Covid-19

“…Therefore, we consider the adjournment or dissolution of a legislature in the pandemic to be an authoritarian practice in clear violation of democratic standards (Bar-Siman-Tov, 2020; Petrov, 2020). Similarly, vague formulations in emergency laws giving the government the ability to rule by decree on issues exceeding Covid-19 related issues are seen as problematic (Ackerman, 2004;Petrov, 2020) since they also have the potential to sabotage accountability.…”

Parliaments in times of crisis: COVID-19, populism and executive dominance

“…One of them is deviations from normal standards of law making, essential to maintain the legitimacy of government action (e.g. Petrov 2020). During the COVID-19 pandemic this became visible in the reduction of parliaments' policy-making power, defined as the formal ability of parliaments to constrain executive rule making (e.g.…”

“…The question to what extent parliamentary policy-making power defined as parliaments' formal capacity to constrain their executives, specifically the degree to which they can reject, modify and substitute executive measures (Arter 2006: 248-9;Baldwin 2004: 296;Norton 1990: 4-5), 2 can be maintained during emergencies is central to the resilience of European democracies that have been repeatedly exposed to crises in recent decades that altered countries' legal infrastructure. 3 In order to embed our puzzle in the context of broader academic debates, we approach the COVID-19 pandemic as an opportunity for 'executive aggrandisement' defined as a (temporary or permanent) weakening of fundamental institutional checking mechanisms in place to assure executive accountability within democracies through means of legislation and legislative reform (Bermeo 2016;Khaitan 2019: 343;Petrov 2020). We focus on parliaments as central checking mechanisms rather than courts given the role of the former as central law-making bodies in democratic regimes and their more immediate role in creating a legal and legitimate foundation for executive action when a crisis unfolds.…”