CTN Blog: "Constitution transformation in the wake of COVID-19"

By Prof Cheryl Saunders

The pandemic that swept the world from the start of 2020 has affected many aspects of life in most places. Constitutional government is no exception.

Already, it is possible to see some of the implications of COVID 19 for the operation of constitutional systems and for the relations between states and other orders of government. Other implications can be expected to emerge over time. ConTransNet identifies 5 such implications, so far.

  1. Most predictably, some governments have taken the opportunity presented by the serious current crisis to further consolidate executive power and silence accountability mechanisms, including legislatures. These cases further deepen the phenomenon of democratic decay that already was evident in many parts of the world. Hungary is a case in point, where Prime Minister Orban has now acquired power to, effectively, rule by decree. Other cases may be less obvious but, ultimately, also troubling. Postponement of elections, as in Sri Lanka, or constitutional change with limited public consultation, as may happen in Samoa, can be justified as a response to the immediate crisis but may have harmful effects in the longer term. This troubling offshoot of the pandemic has caused ConTransNet colleague Tom Daly to develop a COVID-DEM Infohub, in an important evolution of his well-known DEM-DEC project.
  2. Also predictably, the social distancing measures for which control of the spread of the virus is assumed to call have been put in place through regulations that severely restrict civil liberties and other practices that are taken for granted in the course of normal democratic life. In the short term, these are widely accepted as necessary responses to an existential threat. Their constitutionality depends on being proportionate to the purpose, however and, in the longer term, on being limited in time. Already, a small body of jurisprudence is emerging: examples from Germany are here. As might be expected, only a minority of challenges succeed in current conditions. Greater vigilance is likely to be needed on this score, as the crisis passes.
  3. More positively, while the crisis has led to restrictions on the use of legislatures including, in some cases, postponement of elections, creative solutions also have been devised. In South Korea, elections went ahead, with the assistance of distancing and other precautions to prevent the spread of the virus. Elsewhere, steps have been taken to enable legislatures to fulfil their key role of scrutinising executive action and holding governments to account. Typically these involve, in the short term, virtual sittings, smaller parliamentary delegations, repurposed or tailor-made parliamentary committees or a combination of all three. New Zealand is one of many cases in point. No doubt some legislative arrangements will be more effective than others. What is heartening, however, is the widespread acceptance and assumption in the countries where this has occurred that provision must be made for the involvement of legislatures, however dire current circumstances may be.
  4. The fallout from COVID 19 also has cast new light on how federal democratic forms of government work in situations of this kind. An effective response to the pandemic typically involves action by both (or all) levels of government. These range, for example, from closing external borders to the procurement of medical equipment, to developing the capacities of hospitals, to organising distance education for communities in lockdown and to accurately and transparently reporting statistics of cases, transmissions and deaths. In these circumstances, federations offer the advantages not only of enabling collaboration to pool resources, achieve co-ordinated action and ensure responsiveness to local conditions and also of providing checks and balances, through which one level of government can compensate, at least in part, for deficiencies of another. These insights will repay more careful study, once the current crisis is over.
  5. In the short and, perhaps, longer term, the pandemic has reinforced the role of the nation-state. Populations have returned; borders have been closed; states have exercised, or sought to exercise, the protective function that is their raison d’etre. Much petty, ideological bickering has been put aside, in the face of a genuine threat. The environment has enjoyed an unexpected reprieve. There is a series of questions, however, about what the future holds when the health crisis subsides and as economic imperatives take over. These include the following:
    • Which states responded most effectively to the pandemic and why? Effectiveness should be understood here to include not only managing the threat to health but doing so in a way that was responsive to the needs of the people as a whole and accountable for outcomes.
    • To the extent that the role of states has been reinforced, what governance changes are necessary or useful to overcome the pre-pandemic problems that were all too obvious and to renovate our democratic forms?
    • What will be the relationship between states and levels of government above the state? Should this change and, if so, how? Are changes to international and supra-national government indicated as well?