Covid-19 and (vs.) the Rule of Law

The current Coronavirus Crisis has been with us for way too long not to mention it. Today’s comment will be the first to address significant developments, mainly in a bad direction, that SARS-CoV2 is taking us to. That much can be said without invoking any ill feelings among those who may read this, but it’s too little to serve as a useful introduction to this vast domain of our current time and age.

Before we dive into the subject at hand, a few guidelines are necessary.

So much has been written about it that I cannot possibly cover everything. Any such attempt would inevitably fail to provide anything meaningful, hence the limitation to the ‘rule of law’, sprinkled with examples from Central Europe.

Full disclosure: I am currently a resident in one of the few ‘lucky’ countries in Scandinavia that have revoked all Covid-related restrictions in everyday life: most sanitiser dispensers have been removed, all barriers and placards are gone, and the public Covid test sites are out of service. It almost feels like 2019, or does it?

Lest you, dear reader, now wish to tell me how I should not talk about a dry topic such as the rule of law, please keep in mind that whatever one thinks about one or the other public health provision of the past 18-19 months, this post (and the ones that follow this one) are dedicated to documenting the grave problems the Coronavirus Crisis has placed in front of us, which, for the most time, remain unaddressed by most mainstream media outlets.

My general thesis goes like this:

Whatever the origins of SARS-CoV2, its most societally most drastic consequences may be its contribution to the continued, if accelerated, decay of the rule of law throughout Europe’s liberal democracies (this statement warrants a more circumspect debate, and we’ll get to it, in due time). Like in previous (historical) instances of rapid, if hap-hazard, increases in state authority (which is what I study professionally), this shift has come about by governments resorting ever more frequently to executive action, or secondary legislation.

Now, it’s no secret that every government known to History loves authority, and it’s equally unsurprising that to increase its powers, the powers that be typically seek to benefit from whatever happens in the world, as so eloquently put by power-hungry politicians from Winston Churchill to Obama’s former chief of staff and one-time mayor of Chicago, Rahm Emanuel: ‘never let a good crisis go to waste’.

In practice, virtually all ‘western’ governments have hit the metaphorical pause button, with MPs tripping all over themselves to empower governments to deal with the Coronavirus Crisis. While I could go on about this in terms of its sheer madness, there is perhaps no better example of this than what transpired in spring 2020 in Switzerland.

At the height of the ‘first wave’—remember this one when our politicians told us that it would take ‘two weeks to flatten the curve’ and we’d be done with this?—the Swiss Federal Council (government) resorted to the Epidemics Act of 2010, which arrogated a vast array of special extraordinary powers to the government.

With the population mostly in ‘lockdown’, by late May 2020, the government floated the idea to consult parliament about the measures put into place, an idea so seemingly outlandish that leading parliamentarians at first deemed it unnecessary. When parliament eventually assembled in mid-June 2020, they did so in the capital’s Convention Centre to ensure ‘distancing’ could be performed during the 14-hour-session. Once over, and considering all the work they had done, MPs than congregated in one of the Convention Centre’s restaurants to have a drink or two, all without wearing face masks or practicing ‘social distancing’, as reported by the tabloid Blick on 13 June 2020.

The overall situation hasn’t improved much, with many restrictions still in place across most of Central Europe. The secondary legislation, or Covid-19 Regulation, has been amended so many times now, in part to reflect the changing circumstances arising from the rollout of the mass vaccination campaign and the staggered, if incomplete, ‘re-opening’ of Swiss society.

The most consequential measure of these is, without a doubt, the introduction on 13 September 2021 of Covid Passports for any of the following activities:

Do you realise what is happening here before our eyes?

The government amends the regulations—again: not a law in the sense of having been discussed, amended, and voted on by parliament—to introduce a measure, Covid Passports, for a wide variety of activities, even though there are a number of questions that remain unaddressed, if one elects to use the power of logic and deduction, which include, among others:

Why the need to require information about one’s vaccination status for Covid-19 but not for other diseases (such as, e.g., measles, which are much more contagious [r0 of 12-18, according to a systematic review in The Lancet])?

Mind you: this isn’t about the safety and/or efficacy of any of the injections but about the question ‘why now?’, and not in any (every) other vaccination-related instance?

What’s happening with those who elect to use a smart phone app with respect to their personal and patient data? As a follow-up, where and how long are the data to be stored?

As citizens with inalienable rights, we should, I think, all be very concerned about the combination of personal ID, patient data (health records), and geolocational pinpointing.

While it is certainly necessary to have a public debate about the pros and cons of such policies, in many ways, once introduced, as the Israeli case shows: by 24 August 2021, Haaretz reported that the government ‘may deny green passports to people who have not received COVID booster’.

I have absolutely no idea how a government may arbitrarily withhold inalienable and constitutionally enshrined civic rights and not be considered a tyranny. Also, don’t make this about Israel, for there are ample examples of comparable, if no less tyrannical impositions by governments elsewhere, from France and its pass sanitaire (instituted on 9 August 2021) to the Italian Certificazione verde (from 4 August 2021 onwards, now also required to go to work) to comparable plans all over the place.

On top of this, there are ever more vaccination mandates, which clearly fly in the face of the fact that all Covid-19 vaccines are experimental and subject to so-called Emergency-Use Authorisations by the competent regulatory bodies (with the exception of ‘Comirnaty’ in the U.S., which has been approved on 23 August 2021, but it is not [yet] commercially available). According to the law, no-one can be coerced into taking non-approved substances, hence the repeat ‘encouragement’ (strong-arming) from politicians (see, e.g., here for a particularly appalling example) is both disingenuous at best and very well worthy of anyone’s contempt.

Now, with most of these absurdities rolled back and the like, let’s consider the core issue:

Long story short, for this listing could continue ad infinitum—why should you care about the rule of law?

As citizens, ‘the law’ is our only defence against the arbitrary (ab-) use of authority, public and private. Everyone, I think, should be concerned about the decay of parliamentary oversight, however imperfect it is (was), the timidity of the judiciary to uphold the law, and outraged about the blatant disrespect ‘our’ politicians afford it.

The rule of law, unfortunately, is the scrap of paper, so to speak, that delineates anarchy from freedom under the law—and tyranny on the other side.