The corona virus pandemic has revealed the several fault lines in the state structure laid out by governments. One such is the condition of the rule of law which, as a pillar of democracy, already had a weak foundation. The equation of the pandemic to a war has made us tread down the path of Agamben’s ‘state of exception’. This state of exception has the capacity of becoming the state of normal with the end of corona virus no where in sight.
This essay will, thus, focus on ‘what the state of the rule of law is’ and ‘what it could be’ in this pandemic hit era.
1. Rule of Law- A Multi-fold Concept
Rule of Law is a multi-fold concept. Historically, it “emerges variously, as a “thin” notion entailing procedural restraints on forms of sovereign power and governmental conduct, … and as a “thick” conception involving the theories about the “good”, “right”, and “just” ”. However, this led to making the meaning of rule of law the ruling ideas of the epoch, thus, justifying domination, subjugation and persecution.
However, with the emergence of the democratic discourse, the idea of rule of law became more inclusive. Baxi also argues that rule of law provides “constraint-languages and facilitative languages”. The former provides a list of ‘ought tos’ that become its moral compass while the latter leaves “open a vast array of choices for the design and detail of governance structures and processes”.
Herein, one can see that rule of law has had a journey of its own regarding its identity. Yet, this pandemic era has again brought its meaning under scrutiny.
2. The Rule of Law Scenario (‘What is’)
The Hindu reported that “over 500 political and civil society leaders, Nobel laureates and rights groups warned that some governments were using the corona virus pandemic to “tighten their grip on power,” undermining democracy and civil liberties”. This is actually a marker of how deep the problem has taken root.
2.1 THE SECURITIZATION ASPECT
One couldn’t have imagined that a disease could also be termed as an aggressor of war. However, reality defies this. Spadaro points out references by Trump like “a war against the invisible enemy” and healthcare workers on the “front line” as well as the suggestion that the outbreak should be designated as an armed attack for the purposes of Article 5 of the North Atlantic Treaty. While using the Copenhagen School lens, one can understand the rationale behind use of such terminology. Buzan argues that “securitization classically legitimates the use of force, but more broadly it raises the issue above normal politics and into the realm of ‘panic politics’ where departures from the rules of normal politics justify secrecy, additional executive powers and activities that would otherwise be illegal”. Thus, this becomes the means to justify the ends i.e. blatant flouting of the rule of law.
2.2 HUMAN RIGHTS VIOLATION
This securitization has led to the reduction of the importance of human rights. For instance, the custodial deaths of P. Jayaraj and his son, J. Benicks in Thoothukudi district (India). According to The Hindu, “their offence would have only attracted Section 188 of IPC (for disobeying the time restrictions ordered by a public servant), but they were also booked under Section 383 (extortion by threat) and Section 506 (ii) (criminal intimidation). The inclusion of non-bailable sections for a lockdown violation indicates a perverse and prior inclination to harass the two and cause suffering.”
The World Justice Project points out that “in Africa, excessive police brutality has been reported in South Africa, Uganda, and Kenya, while press freedom has been curtailed in Ghana, Nigeria, Senegal, and Sierra Leone.
2.3 EXTREME MEASURES AT USE
Examples in this regard can be seen spread as far and as wide as the world itself. In El Salvador, “the airport was shuttered. Then came the lockdown, with the military on the streets to enforce it. Residents could only leave their homes twice a week for quick food runs. Thousands caught violating the quarantine and those who arrived in the country after March 12 were put in so-called containment centers.”
The Phillipines’s President Duterte’s expansion of emergency powers is another case in this regard. Further, Kukavica argues that even though the Government of Slovenia disbanded the highly opaque and unregulated ‘Crisis Headquarters’(formed to coordinate an action response to the Covid-19 pandemic), all of the most restrictive measures were adopted while the Crisis Headquarters were still operational.
Sidó points out that the Hungarian government’s emergency measures revolve around a new act, which would allow Prime Minister Viktor Orbán to rule by a decree, without any sunset clause and without any parliament oversight, essentially giving him unrestrained power. Further, making wrongful accusations against an Iranian student for being the first case in Hungary, the government highlighted that migration was to blame. Later on, the government put 13 Iranian students into the quarantine, and after alleged misbehaviour, deported them from the country; baselessly scapegoating a minority to fit the government’s dominant narratives.
Such measures always warrant the question- who will bell the cat and ensure that no excesses are committed? This era has increased what Foucault calls the government’s biopower, which has in turn increased the government’s control and thereby decreased the respect for rule of law.
3. The Rule of Law Scenario (‘What could be’)
An assessment of the current situation of rule of law always starts with the fact that it is under major threat. However, going down the same trodden path isn’t the way to reach the nerve of the problem and at least generate a hope for its resolution. What we need is a change of perspective. Thus, we need to start at the very beginning.
To protect rule of law from any violation, we first need a change in the ongoing narrative. The security narrative increases the stakes attached to the problem thereby justifying extreme methods. We need to see the situation for what it is. This gives us the first ‘what could be’ of the situation.
Sen argues that public programmes of intervention can protect vulnerable interests but they can also have regressive consequences if the battle lines are wrongly drawn, or if the remedies are wrongly devised. He believes that the military concept of ‘friendly fire’ can be used to describe this. While the intent of the measures taken is to end the pandemic, its formulative faults end up worsening the situation of the people. This guides us to the second ‘what could be’.
Critical engagements and dialogues are extremely necessary to erase the false consciousness that justifies such violations thereby giving us our third ‘what could be’.
Applebaum has a wise advice to walk pass this mirage into reality: “Ignore anyone who tells you that during a pandemic, their policy is above criticism, that politics don’t apply in a pandemic, or that accountability and transparency need to be suspended for some indefinite period of time. The opposite is true: all the decisions being made right now, whether medical or economic, deserve widespread scrutiny and debate”.