Under the pressure of the pandemic, fundamental rights were restricted, parliaments did not meet, and injunctions replaced the struggle for consensus. What did all this mean for democratic legitimacy? And most importantly, what lessons for future crises can be drawn from the experience? To answer this, a major European research project analyzes the crisis responses of 31 states. Italian constitutional lawyer Francesco Palermo and Swiss constitutional lawyer Eva Maria Belser are leading the effort.
Did the measures in your own country - and how they were enacted - sometimes make you uncomfortable?
Francesco Palermo: There was some unease, yes. When fundamental rights are restricted, that’s always problematic from a constitutional point of view. Not that it shouldn’t happen - sometimes it has to. What matters is how these restrictions are made. In the case of the pandemic, it became apparent that most legal systems did not provide the right mechanisms for this. Existing regulations in Italy, like the law on civil protection, are actually tailored to short-term emergencies ̶ disasters such as avalanches, earthquakes, floods and the like. A state of crisis as long-term and comprehensive as the pandemic was and is not so easy to handle with these instruments - so some creativity was inevitable. Fortunately, it worked out to some extent, at least in Europe and other democratic countries. But now the key question is: what do we do in similar situations in the future? I’m thinking primarily of climate change as well as wars or energy crises.
Eva Maria Belser: At the beginning of the crisis, the reaction of the state came as a considerable shock, even to me. I had always taught emergency law, also at the University, but it was really more for the sake of completeness – I never thought it would become relevant. And suddenly all these mechanisms of power were actually used, and for a while it seemed that what both myself and the constitution are fundamentally concerned about, no longer applied: democracy, fundamental and human rights, federalism, the rule of law. In light of this drastic experience, we are now examining how individual states reacted, and what we can learn from this. Both in terms of each state for itself as well as from each other.
Are there any major differences in the crisis response of the 31 states you are investigating?
Belser: Absolutely, there were enormous differences in terms of constitutional law and legislation, and the reactions were also different. In addition, there was a great deal of dynamism ̶ initially, the approach was very centralized, but then this was immediately corrected. On top of this, there was a divergence between the legal situation and the practical situation ̶ even in highly centralized states, cities and municipalities solved problems locally. It may be that the distinction between federal and unitary states plays a less decisive role in the reactions than we initially believed. Unitary states also suddenly decentralized, using zones and traffic light systems to try to apply emergency legal measures in a quasi-tailored way only to the regions that were particularly affected.
“Even a wise solution, if dictated from above, is unlikely to be accepted to the same degree as a decision made locally.”Francesco Palermo
Palermo: One example of this was France, which as a rule is very centralized, but decentralized during the pandemic, so that the municipalities or departments were able to adopt really different regulations. In very decentralized countries, on the other hand, such as Switzerland or Belgium, where in normal times there is not always a culture of trust between the central government and the cantons or regions and communities, the various levels were very willing to cooperate in the emergency situation.
Belser: We may also discover quite different reasons for the differences in reactions - size, for example: The fact that Australia was more federal than ever during the crisis – even closing subnational borders, probably also has to do with the fact that this is possible in such huge countries. And Belgium and Switzerland may also have reacted so centrally because they are so small and interconnected.
So was the form of government not really relevant to the crisis response?
Palermo: In one important aspect, the structure of the states did play a role and that was in terms of how the decisions were reached. Was it a decision at the local or regional level, or was it a decision at the central one? In France, as in Italy, it was clearly the central state that decided what the regions or municipalities were allowed to do; in contrast, in Germany, for example, the states together with the federal government decided that the central state should assume certain powers. The direction in which power is exercised makes a big difference: even a wise solution, if dictated from above, is unlikely to be accepted to the same extent as a decision made locally.
Belser: That’s the central point: After all, we’re not only studying the various crisis responses and their efficiency, but also, and above all, the democratic legitimacy of the decisions.
How do you measure democratic legitimacy?
Palermo: By means of a whole series of indicators such as the participation rights of the general population and those affected, the involvement of minorities as well as economic sustainability. Trust in the relevant institutions will also be an aspect - colleagues in Antwerp are conducting studies on this. At the end, we will see how many of these indicators were present in the various cases, and to what extent.
“For human rights reasons, even a unitary state cannot impose restrictions on fundamental rights for the entire country if the emergency legal situation only prevails in some regions.”Eva Maria Belser
Belser: Because the principles of democracy, federalism and human rights are closely related, we will often come to similar questions from different considerations, I think. Let's take subsidiarity, that is, the principle of making decisions at the lowest possible level ̶ a federal principle, one would say. However, we have also noticed that to reduce restrictions to a minimum, to what is necessary is a matter of human rights ̶ not only in terms of the severity of the measures, but also in terms of their territorial application. So, for human rights reasons, even a unitary state cannot decree restrictions on fundamental rights such as school closures for the whole country if the emergency legal situation only prevails in some regions.
There were often objections to territorially tailored regulations: three different rules over 200 kilometers was not something people could understand.
Palermo: Of course, it makes no sense for each municipality to issue its own rules, just as it makes no sense for a state to determine everything uniformly for the entire national territory. What matters is the interplay between the various decision-making levels; what’s interesting is how they agree and coordinate ̶ not just because they think it makes sense, but also because there are procedures that govern these decisions.
Belser: But I also find it interesting that our tolerance for diversity seems to be decreasing. We can all think of regulations where diversity is absurd and unity is required, such as the mandatory wearing of masks on Swiss trains. A train from Geneva to Zurich changes cantonal territory every few minutes, so masks would have had to go up and down all the time... Of course, this does not make sense. But people often give too much importance to such examples and may have been too hasty in saying that differences are either not efficient or are ridiculous. Basically, diversity was positive because it allowed for tailored measures. Last but not least, it was a boon for research as it was the only way to ascertain how effective masks were for protection in certain areas or where the risk of infection was particularly high. With one-size-fits-all measures, the susceptibility to error would have been much higher, and the ability to learn much lower.
Palermo: Federalism is like a laboratory. If everyone has to decide something it is of course possible for some units to make a bad decision once in a while; but much more often, good solutions are made and are copied by others and spread.
“The climate crisis is going to be about weighing up fundamental rights against each other.”Francesco Palermo
One common topic in the public debate is proportionality of measures.
Belser: It’s a fundamental principle of the rule of law that fundamental and human rights may only be restricted in a proportionate manner. In the situation of the pandemic, this was particularly difficult because a wide variety of fundamental and human rights were affected at the same time: freedom of assembly, privacy, the right to life and health ... these are also very difficult issues to weigh up in normal situations. But in normal situations we have democratic and power-sharing systems that try to prevent things from going wrong and disproportionate restrictions from being imposed. Normally, there needs to be a legal basis, and we have courts that also review proportionality after legislature. But these mechanisms fail when Covid ordinances are issued on an almost daily or weekly basis. So, now we need to look at how to improve the resilience of our institutions and processes so that they can function under time pressure and other stresses.
Palermo: In Italy, for example, the Constitutional Court was practically excluded for two years because the measures were taken at the administrative level and the Constitutional Court has no jurisdiction to intervene in this case. It is problematic when the body that is supposed to review proportionality, among other things, in a constitutional state is de facto eliminated. The basic principles of the rule of law, such as the separation of powers and judicial review, can only exist together; you can’t simply eliminate one. So we have to see how the system can be maintained ̶ even in exceptional situations and how the instruments can be better adapted to the situation.
You mentioned climate change as a key challenge for which lessons need to be learned from the pandemic: where are the parallels?
Palermo: The climate crisis is going to be about weighing up fundamental rights against each other. Let’s take an exaggerated example ̶ say we’re considering banning skiing because it’s not ecologically sustainable, on the one hand you have the right to the economy, the right to sport, but then there’s the protection of the environment to consider, for whose sake should such decisions be made? What system, what procedures do you use? These are practically the same problems as in the pandemic. But we should be better prepared, and also legally equipped.
“Crises are the times of the executive,” it is said. We have to get away from that. We cannot put everything in the hands of a few people and hope that they will navigate us through the crisis.Eva Maria Belser
Belser: Indeed, after relatively quiet decades in our part of the world, a state of crisis sadly seems to be becoming almost normal: the climate, Ukraine ... That’s what makes our project so relevant now. Of course, every crisis has its own dynamics ̶ the climate crisis will certainly expose other weaknesses in our systems than the pandemic did. But there are also parallels, and we can certainly learn from the pandemic for future crises; especially in the constitutional, organizational area, where the old concepts are based on the principle of when things go massively wrong, the government moves to the center ̶ “Crises are the times of the executive,” it is said. We have to get away from that. Parliaments must also be able to put themselves in crisis mode; courts too must be able to function on a quasi-emergency basis. We cannot put everything in the hands of a few people and hope that they will navigate us through the crisis.
Was the concentration of power one of the more problematic aspects?
Belser: Absolutely. In Switzerland, at the beginning of the crisis, there was a centralization the likes of which the country had never seen before ̶ both horizontally, meaning a weakening of parliament and the courts, but also vertically, with weakening of local authorities and the cantons. Not even during the two World Wars was power in the hands of the national executive so concentrated.
“What certainly didn't work well in Italy was the discourse on federalism.”Francesco Palermo
What other particular weaknesses did the pandemic expose in your countries?
Belser: In Switzerland, we noticed that competing competencies don’t work so well and what we call negative conflicts of competence between the federal government and the cantons were present ̶ both would be responsible in themselves, but neither wanted to act. After all, anyone who decrees measures naturally exposes themselves to criticism, as well as to the pressure to provide economic cushioning measures. So both levels hoped that the other would take measures and pay for them. But some serious shortcomings also became apparent in individual policy areas, for example in the area of data processing. It was quite shocking to see how long it took this country to unearth even halfway reliable data on infections, test results or even available beds in hospitals.
Palermo: What certainly didn’t work well in Italy was the discourse on federalism. Because there is a very limited federal culture, the first reaction was: for God’s sake, 21 regional health systems, surely that doesn’t make sense ... A reasonable, non-emotional debate is much more difficult here than in Switzerland; if an editorial in an important newspaper demonizes federalism, it may be taken up in parliament and the mood becomes more negative. But because Italy, especially in the first phase, was affected in extremely different ways territorially, it was impossible to deny that the solution also had to be territorially different albeit with some coordination. And here it’s been shown that the coordination mechanisms can be expanded.
“If we believe in democracy and federalism, then that’s the challenge. It also has to work when stress affects the system.”Eva Maria Belser
At the end of the research project, you will make recommendations. Are any key points already emerging?
Palermo: In summary, I would really say: better coordination. That doesn’t just apply to Italy. Law is ultimately order. So how do you deal with a situation where order is disrupted? Here we need better mechanisms that are not only legal. To improve coordination but not to abolish diversity. To make coordination work better but also to not abolish diversity.
Belser: What has also not worked in most countries, I think, is the approach of having to do everything differently in a crisis. In Switzerland especially, we witnessed it where the cantons themselves are responsible for health care. Then the federal government took over; but know-how at the level of federal government is quite different, these people have never been in a hospital ex officio. This means that it is in all our interests if those who have certain competencies in normal times also bring these competencies to bear in crisis situations. It should be a goal that each player can function as normally as possible, even in a crisis, and can do what they normally do (and therefore do best) as much as possible. In contrast, being shuffled around and reinvented when nerves are on edge anyway should be avoided as much as possible ̶ if not, a lot of experience and know-how gets lost. In a catastrophic situation such as an earthquake, someone must of course be able to initiate all measures immediately at the push of a button, so to speak. But crises such as climate change will occupy us for years or decades, and I think the call for a strong stand-alone individual is completely misguided. If we believe in democracy and federalism, then that’s the challenge. It also has to work when stress affects the system.
LEGITIMULT (Legitimate crisis governance in multilevel systems) assesses the relationship between multilevel governance and governments’ crisis governance in the wake of the Covid-19 pandemic. The aim of the research is to develop a model of legitimate crisis governance. In doing so, it will assess the impact of Covid-19 measures on democratic governance in 31 European democracies (EU- 27, plus Switzerland, Norway, Iceland and the UK). The project is funded by the European Union under the Horizon Europe Programme and coordinated by Eurac Research. https://legitimult.eu/
Eva Maria Belser
Eva Maria Belser holds a Chair for Constitutional and Administrative Law at the University of Fribourg and a UNESCO Chair in Human Rights and Democracy. She teaches and publishes in the field of Swiss and comparative constitutional law, federalism, decentralisation and globalisation, human and minority rights and democracy as well as constitution making and conflict resolution. Eva Maria Belser regularly accepts mandates to serve as a Swiss expert in international cooperation and consultancy projects. She was member of the Swiss National COVID-19 Science Task Force.
Francesco Palermo is Full Professor of Comparative Constitutional Law at the University of Verona and Director of the Institute for Comparative Federalism at Eurac Research. He has taught at several European and American universities and has worked for the OSCE, the Council of Europe, and the European Union, particularly in the areas of autonomy and fundamental and minority rights. Currently, vice president of the Fundamental Rights Agency of the European Union and constitutional advisor to the Congress of Local and Regional Authorities of the Council of Europe in the framework of the Venice Commission.