Dr.Gerstenfeld’s article was originally published at The Begin-Sadat Center for Strategic Studies (BESA) and republished here with the author’s consent.
THE PROBLEMATIC CORONA IMPACT ON CIVIL RIGHTS
As a reaction to the Coronavirus pandemic many governments have pushed aside, almost wholesale, a variety of civil rights. One wonders whether what has happened during the emergency will change the attitude of these nations to fundamental rights long-term and if so, in what way. For many weeks the limitation of civil liberties as a temporary measure was de facto accepted by many populations.
During the crisis various governments have also approved tracking ability and privacy-breaching capabilities. This may also have long-term consequences. Albert Fox Cahn of the Surveillance Technology Oversight Project was quoted as saying: “We could so easily end up in a situation where we empower local, state or federal government to take measures in response to this pandemic that fundamentally change the scope of American civil rights.”1
Once most of the emergency measures have ended, the discussion about the abolition of many civil rights during the crisis will continue. Robert Seegmüller, chairman of the organization of German constitutional judges has said that courts in the future will have to investigate whether parliament was entitled — according to his country’s constitution — to transfer so much of its operational competence to the executive branch. Seegmüller also said that it is also not known whether the closure of many institutions in the first weeks of the crisis was unproblematic from a legal point of view.2
For the record, it is important to identify and list which fundamental rights were cancelled or limited. The most important is the right to move freely in the streets of one’s own city. Lockdowns in many places abolished or limited this right. This also meant that the freedom to visit others was limited or abolished. A highly publicized illustration: During the lockdown, a top British government adviser on the virus issue Prof. Neil Ferguson, an epidemologist, had to resign from his position after it became known that he had allowed his lover to visit him at his home during the lockdown. This at a time when he was advising the public on the need for strict social distancing.3
The obligation to wear a face mask outside one’s home – to minimize the danger of infection – represents another major limitation of civil rights. This is not only an issue which impacts on private freedom. Face masks makes people difficult to recognize. In Western societies, facial recognition of people is part of culture. One cannot detach this issue totally from earlier debates in these societies about some expressions of Muslim fundamentalism. In various European countries the wearing of face veils is forbidden.4 Under the social distancing measures it is also prohibited to shake hands. There are religious Muslims who refuse to shake hands with women. This is often viewed negatively because shaking hands is part of Western culture.
It is part of the culture of Western society to be able to socialize in physical proximity. The obligation of social distancing has had many additional consequences. People in southern European countries kiss good friends on the cheek when they meet. This habit also had to be abandoned. Social distancing in public will go on in many places after the end of the Corona crisis. British Chief Medical Officer, Professor Chris Whitty, has said that social distancing would last for another year.5
Related to movement, not exactly perceived as a civil right, but certainly something which was previously considered normal, was that one could cross into other countries with or without border control. Several European countries closed their borders during the pandemic. The European Union closed its external borders to foreign nationals.6
Lockdowns and social distancing impacted heavily on religious freedom. While the individual person can say prayers at home, meeting for religious services is still prohibited in many countries. This is irrespective of how important community meetings are for specific religions. In the United States, multiple lawsuits have been filed arguing that Corona-related restrictions violate the First Amendment’s guarantee to freely exercise religion. 7
The Coronavirus crisis did not lead to limitation of freedom of speech. The right to demonstrate was often permitted during the lockdowns. The German Constitutional Court decided that health concerns linked to the coronavirus outbreak are no grounds for a general ban on demonstrations.8 In various German cities demonstrations against the prohibitions took place toward the end of the emergency, some even violent.9 There were also public protests against the lockdown in various places in the United States.10
Privacy is another fundamental right. Data protection is of increasing concern.11 Even before the Coronavirus, it was generally known that companies such as Google and Facebook have access to a wealth of data on many individuals. Facebook had to pay a 5 billion dollar fine to the US government for deceiving users about its ability to keep personal information private. This occurred as a result of the Cambridge Analytica data breach.12 The triangle – security, freedom, and privacy – will probably become a significant issue for debate.13
The more populations distrust their government, the more problematic tracking applications are. Governments claim that the data will be anonymized. As the data will be held at a central database, this casts doubt on full anonymity.14
The fear of the abuse of power by governments in some countries is substantial. Belgian Minister of Interior Affairs, Pieter De Crem, sent a letter in early April to mayors and the chiefs of police in which he called on them to apply rigorous and overt measures to people who went to stay in a second home. Drones were used to find offenders near the coast. Liberal politicians reacted by saying that the emergency conditions should not be used to organize a police state.15 The danger of police overreach is a topic frequently discussed in media in various countries.
Another civil rights issue concerns the equality of people. In places where there are more people in need of respirators than apparatuses available, choices have had to be made. Equality would mean that those who come first are given the respirator. Yet in fact, in many places priorities are determined according to the state of health and age of individuals. In the past in various countries there have already been protocols in place for triage for critical care provision during a pandemic.16 This is a clear policy choice concerning the right to life of particular people.
Major economic intervention will be necessary to mitigate a huge economic recession in many countries as much as possible. Government measures in pre-Corona society often run into public protests combined with legal problems. Governments may well decide that they cannot afford to delay measures to restart the economy. This may lead to emergency measures, which will limit civil rights. Yet, it would be very problematic if parliaments were not allowed proper verification procedures, provided that they do not stall decision-making.
The Hungarian parliament has given up part of its rights. This has led to a limitation of speech. Prime Minister Victor Orban can declare emergency measures by decree. If he wishes, he can prolong the emergency measures without the approval of parliament. These measures also allow jail sentences for up to five years for distribution of fake news about the pandemic or about the government. The Hungarian government has in the past released claims of fake news against independent media.17
Thirteen members of the EU have signed a declaration warning about damaging fundamental rights in the framework of the Coronavirus emergency. They express their concern about the risks for the state of law, which can occur as a result of certain emergency measures.18 The declaration doesn’t mention any specific country. Yet it is generally understood that this warning targets the emergency measures accepted by the Hungarian Parliament. It is however telling that about half of the EU member states have not signed the declaration.
A more fundamental question has to be asked even if one cannot answer it now: Is it by chance that the great majority of sick and dead were registered in Western liberal democracies? In other words, is there something inherent in the societal modus operandi that causes their governments to have more difficulty in reacting and controlling an emergency situation than elsewhere?
8 www.reuters.com/article/us-health-coronavirus-germany-protests/germans-have-right-to-protest-during-coronavirus-pandemic-court-idUSKCN21Y220; www.lemonde.fr/planete/article/2020/04/25/stopcovid-comprendre-le-debat-sur-les-espoirs-et-les-craintes-du-tracage-des-francais-par-leur-telephone_6037766_3244.html