The Covid Purge

The End of the Austrian Second Republic, Pt. 2

One of the main facets of the current Coronavirus Crisis is its multi-pronged attack on the constitutional and institutional framework of any national state. Citing extraordinary circumstances, virtually all (mainly western) governments have both applied existing laws (such as the German Infektionsschutzgesetz of 2001 or the Swiss Epidemiegesetz of 2012) and rushed through parliament a plethora of new emergency legislation. The latter is quite prominently visible in the Austrian case, where the ‘original’ act, published on 15 March 2020, has been amended twelve times so far (with the last amendments passing parliament on 22 Oct. 2021).

I’ve already noted the house arrest for ‘the unvaccinated’, which will enter into force on Monday, 15 Nov. 2021. Again, we’re talking about government by press conference, in violation of all constitutional norms and procedures, such as the careful preparation and proposition of new legislation by the government, at least three debates and votes (in Austria) in the lower chamber, followed by a debate and vote in the upper, federal chamber where the representatives of the federal states discuss the legislation.

None of these steps are actually conducted by the current government, which at least allows for the veneer of ‘respectability’ by other means, such as, perhaps, putting the new ‘executive order’ (decree, in Putin-speak) up for ‘discussion’ in the Select Committee (Hauptausschuss). As Chancellor Schallenberg and Health Secretary Mückstein told the public yesterday, this was still unclear, according to state broadcaster ORF:

‘It is not yet known how exactly the lockdown for the unvaccinated will be designed and how it will be controlled. The checks are to be carried out “on a random basis”, said Schallenberg. People can leave their homes when they have to go to work, run errands or “stretch their legs”. However, the Chancellor explained that there could not be tight controls: “We do not live in a police state and cannot and do not want to control every street corner.”’

Hear, hear.

Mückstein, in a different ORF report, was a bit less hyperbolic:

‘The decree [Verordnung] for the partial lockdown in Upper Austria and Salzburg will be issued by the Ministry of Health. The legal basis for the measures going beyond this, announced by the provincial governors, is made by the two provinces themselves. In Upper Austria, all events will be banned until 6 December—with the exception of events in the “professional cultural and sports sector”. Restaurants and the like will be closed, Advent markets can take place, but with compulsory masks and a ban on consumption.

Mückstein was also very cautious about the question of how a lockdown for the unvaccinated only should be controlled. Rules would also apply without complete control, he said, referring to 30 km/h zones around schools. These would not all have to be controlled and would still be a sensible regulation.’

Of course, constitutional law experts and university professors were outspoken, as far as that can be said, about the questionable legality of these measures. As reported by (self-identifying) left-liberal daily DerStandard, ‘constitutional lawyer Funk questions whether a lockdown like the one planned in Upper Austria is proportionate and in conformity with the constitution due to the heavy surveillance requirements’. The main problem with house arrest for ‘the unvaccinated’ third of the population, however, is something else, for (my emphasis)

‘in order to guarantee proportionality, it must be ensured that the scope of movement of people without immunisation is actually limited to home, workplace and walking.

According to the legal scholar [Funk], there would be fewer constitutional objections to a lockdown for everyone, with a reasonably verifiable rule for the entire population. On Wednesday, [Upper Austrian Landeshauptmann, or governor] Stelzer had still ruled out such a measure. A “lockdown for the vaccinated”, which would then also include the unvaccinated, would be “highly problematic in terms of constitutional law”, he said.’

You see, house arrest for ‘the unvaccinated’ is problematic because it places too much of a burden on already-strained police and other state security forces (which was one of the reasons cited by Chancellor Schallenberg when he declared this ‘policy’ earlier this week). But the problem is also, as elucidated above, that one must not lump both ‘vaccinated’ and ‘unvaccinated’ together, which would also create ‘constitutional’ problems. It’s a Catch-22 situation, if there ever was.

Yet, there’s also another angle: what about those who are supposedly going to enforce these house arrests? I’m glad you asked, for in their response, the Police Unions are adamant about the ‘true’ problem. Appearing in the late news of state TV, Social-Democratic Police Union Chair Hermann Greylinger ‘on Thursday strongly criticised plans for the police to control the lockdown for the unvaccinated’, as reported by Die Kleine Zeitung (my emphases):

‘This is the task of the health authorities, the police come when there are problems. Moreover, these controls would not work in practice.

The trade unionist stressed that this was not the opinion of the social democratic group, but the unanimous opinion of the police union as a whole, that these controls were not the task of the executive. Greylinger spoke of a variety of tasks of the police and stressed: “We are at the limit. It has to stop.” The trade unionist further criticised: “We are not involved in these measures.” The Ministry of the Interior is going its own way, “we learn what is planned from the media”.

This is the consequence, or fall-out, of the now-entrenched ‘practice’ of government-by-press conference. Established procedures, norms, and expectations of conduct have vanished since early 2020, and now the police unions are responding to the problematic consequences.

These problems include, hilariously enough, the following nuggets, courtesy, of all places, Austrian state broadcaster ORF. Speaking on the evening news, well-known and respected political science professor and political pundit Peter Filzmaier, known for his wit, is on the record as follows:

‘“It is a communication disaster”, said Filzmaier. “After all, the magic word in crisis communication is—in English—One-Voice-Policy. That means speaking with one voice”, Filzmaier continued. This has never worked out perfectly: “But compared to such contradictions, the dispute over the federal gardens in Vienna between the state and the federal government was still a trifle [see below*]. Now there are fundamental contradictions, “even though credibility and trust are the highest good”.

(…)

There are only two possibilities, according to [Filzmaier]: “Firstly, the coordination of government communication does not work unintentionally, i.e., it is not managed. Or secondly: It doesn’t work intentionally, you play political strategy games in the middle of the peak of the pandemic”, Filzmaier continued. “Both are equally bad.”

(…)

According to [Filzmaier], the government is already facing the “next problem”. If the current measures are not enough, the government—both the one under Schallenberg and the one under Kurz—has “manoeuvred its communication into a dead end”. Either it would have to take measures that would make it look like a “breach of promises made" or “even a liar” (for example, a lockdown for everyone or a general vaccination mandate)—“or it would not do so, then [the government] would have nothing left in its hands and would have to accept more deaths if the current measures do not work”.’

In short: there are no ‘good’ options left, and the only way forward is more confusion, erosion of public confidence, and a further deterioration of political discourse.

As temperatures are falling, discontent is rising, with Chancellor Schallenberg frequently adding fuel to the fire due to his, frankly, unacceptable tone.

We’ll explore the consequences of these actions over the next weeks, for at some time, everyone sits down at a banquet of consequences. Stay tuned.