Health above all? Current challenges and the belated day after


The crisis strengthens existing reinforcing tendencies of the executive branch. As a constitutional expert, and as a social scientist in general, I find myself in an “epistemological aporia”, within the meaning of lack of “resources”, knowledge and experience towards this unprecedented for the generations inter vivos phenomenon of pandemic in our country and the (western at least) world. This "question" leans upon the regulatory science of law and the lack of explicit and specific rules of law, or previous case-law of the Court of Justice, which addresses ad hoc a phenomenon like the current one. For instance, most Constitutions- including the Greek- do not foresee specific arrangements for this rare occasion.

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Towards the commanding calls of medical science and especially epidemiology, this “question” causes confusion, and in some cases a partly justifiable “submission” of a great extent. Has the law retreated at this crucial moment? Is the technique of power and political decision-making required to pass - If not already passed- into the hands of quintessential experts, i.e. epidemiologists and it lies beyond political and legal scrutiny? Has the law already “left” (see Kamtsidou, The pandemic and the departure of  law, 5/4/2020) or are we in a "constituent moment" created by the extraordinary needs (see Venizelos, "Pandemic, Fundamental Rights and Democracy", 4.4.2020), which by definition lies beyond law and therefore the only analysis can only be based on politics?

Of course, political analysis is particularly interesting. It mainly deals with the analysis of empirical data. It studies what it actually is (Sein), and it differs from “regulations”, which focus on how things should be (Sollen) in accordance with law. Therefore, at an empirical and political level, it is important to examine the dynamic return of the State in its dealing with COVID- 19, and ask ourselves what the further course of globalisation is, and which is its direction, as well as characteristics to come after the pandemic in view of the possible emergence of other future viruses. At the same time, however, we should also admit that interconnectedness among all parts of the world caused a rapid spread of the new virus, SARS-COV-2. Maybe, for example, as a result of this, the volume of transported products will be reduced, and the local products will render more attractive, even if it is to the detriment of the available consumer variety. As a result, we observe two trends: the first, already emerging in the health crisis, is the strengthening of the role of the state, with the latter assuming a more dynamic role. This course of challenging the omnipotence of markets has already begun on the occasion of the economic crisis in 2008 and the debt crisis that we experience since 2009.The pandemic seems to aggravate these phenomena in this case as well, by revealing shortcomings and accelerating developments. The state is now forced, with a pandemic demand and therefore the necessary political legitimacy, to once again provide not only a safety net, but also support to businesses and workers, and even goods, in case that gaps are found in production along with an increased demand of goods, (Pagoulatos) with a view to dealing with the pandemic and of course to providing health services. The second trend as a shift in political economy is too early to be confirmed; it may simply remain a brief parenthesis in the continuing intensification of globalization, and certainly such a prediction goes beyond the possibility of predicting this intervention.

At the same time, it is indisputable that the measures taken by the states were vitally influenced by the World Health Organization and that- in the main- they seemed alike. Therefore, on the one hand, the states have taken on the burden of managerial responsibility, although on the other hand political decisions have been crucially influenced by global medical and epidemiological findings in the vast majority of countries. Federal states (such as Germany), but also unitary states form part of this example of multi- level governance; in Greece, for example, we witnessed municipalities taking action by closing- or not- their parks, prefectures turning against the central state for taking measures.

Nevertheless, apart from the great interest of political analysis, the assumption we made above (i.e. that politics and law have backed down and that no one has anything to say from a regulatory point of view) is not confirmed either on the basis of regulation or experience. Political power (democratically legitimized Governments and Parliaments) continues to have a choice, which is limited by the "real", due to these specific health conditions. Indeed, what is now called the "normative force of the real" ("die normative Kraft des Faktischen" according to Georg Jellinek), that is, the power of real data to enforce law or an interpretation thereof, has been sharpened, as in all critical circumstances. Nevertheless, it is the Government that, taking into account the views and knowledge of experts, decides the combination of measures taken, and therefore it is the one that maintains political responsibility, on which mistakes are charged and success is credited. Besides, the same applies for periods of “normality”. Experts warn of climate change, the dangers of mutations, atmosphere and sea pollution and contamination, deforestation; conditions that also entail various and harmful health consequences. Nevertheless, the measures and initiatives to be taken are ultimately up to political decisions. The pandemic crisis (as well as the fiscal crisis a decade earlier) sharpens rather than produces the most significant, the great value of technical and special knowledge.

Correspondingly and as long as decisions remain political, and due to that any political power in the modern constitutional state is controlled by legal and constitutional criteria, the law does not depart the scene. The fundamental values of the constitutional state, the personal autonomy in direct connection and link with collective autonomy, liberalism and democracy remain guideposts.

In fact, Greece has not even taken advantage of the two legal possibilities provided by the substantive law. Greece did not declare a state of siege, which is foreseen in "a case of war, conscription due to external dangers or direct threat to national security, as well as in case of an militant movement with a view to overthrowing the democratic regime", according to Article 48, and which would allow the suspension of certain freedoms, including the right of Article 5 par. 4 of the Constitution for a maximum of 15 days (prohibition to impose individual administrative measures, in relation to freedom of movement). Unlike other countries of the Council of Europe, Greece did not even ask for the activation of Article 15 of the ECHR, which allows a waiver of the rights of the European Convention on Human Rights (ECHR) in cases of emergent situations. 

What is more, in such crisis situations, the executive branch is strengthened against the legislative powers. A phenomenon which is familiar to us in times of normality, especially in parliamentary systems, such as the Greek one, where the political agreement between the parliamentary majority and the Government which the former supports, otherwise the latter would be deprived of its duties means that the Parliament votes almost always in favour of  the bills proposed by  the Government. At European level, the Commission has the sole legislative initiative, i.e. it proposes European "laws" (Regulations, Directives), and the legislative function is co-exercised  not only by one directly elected parliamentary body (European Parliament), but also by an executive body (Council), provided that it is composed of the ministers of the Member States. This phenomenon was exacerbated during the pandemic crisis to the extent that all laws took the form of "Decree- Laws” which are issued according to Article 44, par.1 of the Constitution, in "exceptional cases of extremely emergency situations and unforeseen needs" by the President of the Republic on the proposal of the Council of Ministers, i.e. by two bodies of executive power. This practice is essentially no different from that followed in other European countries, also known as "Rule by decree”. Hence, it provoked criticism on behalf of some constitutionalists (see, for example, Kaidatzis, The question lies on democracy, not rights, Efsyn 27.03.2020). However, Decree- Laws are ratified by the Parliament in retrospect (and in fact this was done in a short period of time for Decree- Laws during the period of the pandemic), at which time the relevant parliamentary debate and control by the political opposition takes place, which, however, as already pointed out, has very limited if not zero possibilities to veto some regulations.

The Restriction on Freedom of Movement
Concerning personal autonomy, the heavy blow was noted in the concept of personal freedom (article 5 par. 3 of the Constitution), in its manifestation as freedom of movement, as well as business freedom for the benefit of the health and life of every citizen on the one hand, and public health in its manifestation, and as a smooth operation of hospitals, on the other hand. According to article 5 par.3 of the Constitution, freedom of movement cannot be restricted "except when and as required by law”. In this case, the law (in its essential sense, as a general and abstract regulation) was the as of 20-03-2020 Decree- Law (Government Gazette A '68), whose Article 68 provided for a series of restrictive measures that could be taken by administrative bodies after the opinion of the National Commission for the Protection of Public Health against COVID-19 "for imperative grounds of urgency to address a serious public health risk with a view to reducing the risk of coronavirus spreading... “.These measures included among others: the temporary ban on entry into the Greek Territory of third-country nationals (not understood as such the citizens of EU Member States and the Schengen area) (para.1), the prohibition of public outdoor gatherings, in which a small number of people participate and imposition of administrative fines in case of violation of this prohibition (par. 2), as well as "restrictions or prohibition in whole or in part on the movement of citizens in the Greek Territory" (par.3).The latter prohibition excluded "movements of citizens with a view to serving their vital, personal or professional needs, which cannot be met in any other way." All the above granted through authorizations provided by administrative bodies, and specifically by the Ministers of Civil Protection, Health and Interior (par.1 and 3) and the Chief of the Hellenic Police (par.2), and as a result it could be argued that this fact is inconsistent with the urgent need that the Decree- Law itself is called upon to serve. Movement restrictions were further specialized through a system of statements (electronic via SMS to a state number, or handwritten  which the individual was obliged to carry with him/her, or under the form of certificate issued by the employer or the individual himself in case of self-employed persons).

According to the Constitution, any restriction on a right- in order to be lawful-  must be enforced by law (in this case by the Law- Decree), serve a legitimate purpose and not exceed the so-called "limitations of restrictions", in particular not violate the principle of proportionality and not infringe upon the essence of the right. In this case, it is self-evident that the measures served purposes not only legitimate but imperative according to the Constitution (according to articles 5 par. 2, 21 par. 3 passage a' and 25 par. 1 of the Constitution): the protection of human health and life and the maintenance of low mortality due to COVID-19 by reducing the spread of virus SARS-COV-2 and protecting the functionality of the health system, and preventing the need for selection among patients who need to be admitted in Intensive Care Units (ICU).This approach is inextricably linked to the famous harm principle introduced by John Stuart Mill in the book of liberalism On Liberty (1859), according to which every human being is free to do whatever he/she wants, as long as his/her actions do not harm other people. If the latter happens, then society can prevent these actions.

However, the extent to which freedom can be restricted is based on the principle of proportionality, which means that any restrictive measure of freedom must be appropriate to the purpose which it serves; it also needs to be necessary, in the sense that it does not go beyond the necessary measure, so that it is not obvious that the same goal could be achieved just as well with  less coercive measures, that is, with fewer restrictions; and ultimately, it must not overestimate the purpose served, not cause more harm than the one it attempts to prevent. The standard weighting and proportionality tools take into account the public purpose to be served, which is decided- as mentioned above- by the democratically legitimized government. In this case, the decision was obviously not to burden the health system at the same time and to such an extent that it could not be possible to meet the needs for intensive treatment of patients with COVID-19. As for the proportionality stricto sensu (the third stage of control based on this principle), it is seldom allowed to be judged by a court, because of the democratic legitimacy- as already highlighted above- that the Government has in making the choice between mortality on the one hand, and freedom on the other hand, but also the amount of the economic recession due to the suspension of most economic activities. In reality, however, it seems that the latter can be partially stopped, especially for countries like Greece that are heavily dependent on tourism, precisely because of the retention of the number of victims of the pandemic and their consequent good reputation.

Thus, in Greece, an intense measure of confinement was chosen that practically overturned the relationship of freedom, which is (or should be) the rule in a liberal constitutional state, and restraint, which should be the exception. Free movement, at this stage of the pandemic (22/03- 04/05), was allowed for limited reasons. Sending text messages (sms) to a specifically for this purpose created number, which did not store them but simply answered automatically, or completing a handwritten statement were the procedural condition for the exit, as a kind of self-check (Pierrakakis, Minister of Digital Government). Surprisingly, it was not forbidden to move to a place with crowded conditions, even if this would be absolutely necessary to prevent the virus spread, but a sole and dubious condition of the statement, which could not be checked for its truthfulness, was enough for the movement. This measure was imposed after the closure of schools, restaurants, etc., so it is difficult to measure its real impact on the suspension of the virus spread.

The fact that movement was provided for exclusively listed reasons was criticized as unconstitutional, in view of the reversal of the relationship between the restriction that became the rule and the freedom that became an exception (Kamtsidou, The pandemic and the departure of law). What has been reversed is, therefore, the presumption of freedom, which (should) be the rule in the liberal constitutional state, while restraint shall remain an exception. This restriction seems to be one of the strictest of those imposed on European countries, if not the strictest one. It was perhaps one of the reasons why Greece showed one of the smallest outbreaks of the virus across Europe, even compared to Eastern European countries that generally appear to have been affected by the pandemic less than those in the West (with 16 deaths per one million of residents just like  Bulgaria, below Serbia (26), Croatia (23) and Bosnia-Herzegovina (41) and above Montenegro (14), Albania (11) and Cyprus (14) [source: worldometres, 19/05/2020]

Although nobody can question the appropriateness of reducing the virus spread, the judgement over the necessity of measures is extremely difficult, as it depends on the scientific knowledge of epidemiological data (speed and modes of transmission, survival of the virus outside the human body, etc.), that is, a set of data that law experts do not have (both current theoretical interpreters of the law, and judges who may be called upon to adjudicate relevant appeals against imposed fines). Thus, taking into account the results shown in the research conducted in the USA for example, how can a law expert judge if physical distancing or confinement (implemented in a timely manner) save tens of thousands of lives, so that those measures are considered the necessary ones towards the protection of life? Or, should the judge himself/ herself decide whether in this dramatic conflict between freedom and health/ life, priority should be given to one or the other fundamental right and good? This decision is in fact taken by the democratically legitimized Government.

What may be disputed is the suitability of the movement statement (via sms or handwritten), as such statements could neither be checked (since the police had to keep the required distance) nor confirmed; they allowed on the contrary- if not encouraged- a misuse either by individuals or by control bodies. Thus, we also witnessed individual judicial disputes over fines for movements not foreseen within the list of limitations, sometimes with the misuse of controlling bodies power, as the essential conditions for avoiding crowds- but not the formal-procedural ones mentioned above- were met. In addition, the exclusive enumeration of the permitted movement was overly paternalistic, as it was based on very specific needs, ignoring others (e.g. the emotional need of two people who did not live together to meet each other).In the same suffocating framework, religious sites remained closed and the entrance was not allowed even with due observance of the measures adopted, the same way which applied in food stores or telecommunications service companies. Thus, the need of one person to communicate via the Internet was seen by the state as more important than the need of other people to communicate with God in the latter's home, if this was necessary for him/her, in his/her subjective experience, while observing in both cases the necessary measures.

Legitimacy and legalisation of the measures
The argument on judicial deference is further strengthened by the fact that lockdown measures have been well received by the majority of the population. In other words, they enjoyed legitimacy in terms of essence, and together with them, the popularity of the Government was strengthened, as recorded in two recent polls in the beginning and in the end of April 2020. These high percentages prove that the -political eventually- weighting that the Government made in favour of health/ life and to the detriment of freedom reflected the preferences of the citizens as well. Thus, although there were indeed less paternalistic models than the Greek one, that respected more the freedoms of the individual, it is difficult for someone to enter the balance between health/life and freedom in an objective way; that is, personal fears and experiences are always taken into account in this judgement.

Of course, this substantial legalization does not imply the removal of any doubts about their legitimacy, in view of the objections mentioned. However, it affects the essence, even unutterably, on the one hand because there have been no widespread and massive reactions to the measures, either in terms of movements or judicially, and on the other because the "common sense of justice" often, and even tacitly, affects judicial judgements. However, when this feeling is captured bluntly and without legal justification in adjudication, it undermines the rule of law, Professor Stamatis warns us (see K. Stamatis, "Common sense of justice"? Reconstruction and constructive counter-proposal, 14.12.2019). In the event that some issues have already been lifted before the court, the person making the decision should go beyond both his/her personal experiences and the common sense of justice in order to decide in a detached way, in case that there have been- a few or even individual- abuses either in law itself or in its application. Especially in cases where emphasis was placed, and a fine was imposed on the type of statement (non-existence or absence of exclusively listed exceptions) and not on the essence of the movement itself that did not pose any danger to anyone (e.g. swimming on a deserted beach).

Enhancing digitized entries
In the short time that Greece has already gone through as a state but also as a society, the administrative mechanism, Municipalities, electricity companies, banks, universities, schools, and all citizens have been digitally modernized at a rapid pace. This resulted in a digitization of services and functions that had been requested and launched since the beginning of the last decade, and having been abandoned, carried out within a two-month period at an impressive pace. This is certainly a positive development that would have been delayed for several more years but for the accelerator of confinement.

At the same time, of course, the so-called "capitalism of surveillance" was accelerated and strengthened (see Shoshana Zuboff, The Age of Surveillance Capitalism, 2019).Due to the pandemic, our tolerance for recording even our most private moments, for example who we met, tends to become tolerable in order to ensure our health safety. The well-known dipole "security and freedom" is becoming so dramatic, that not only more and more governments start digitizing our movements, but more and more people are happy to use coronavirus tracking applications in order to be safe, be able to move and travel. It is impossible to make the genie of our digital presence dissemination re-enter into its lamp. After all, through social media (facebook, Instagram, twitter, etc.) millions of people around the world have already chosen to show their personal moments in self-managed accounts. It is perhaps an oxymoron to talk about privacy and personal data protection when they are freely circulating in the clouds and we have little control (perhaps in its most painless versions) of their dissemination and sharing.

Europe: the next day
It is well known that the course of European integration has been marked by many ups and downs as well as crises. The current period is another similar crisis, while we are also called to deal with the recent Brexit, the crisis of the rule of law in Poland and especially in Hungary, and now with the confrontation of the COVID-19 pandemic. Like any crisis, of course, it can jeopardise the course of the Union or, on the contrary, be an opportunity for greater incentives. Let us remember that the fiscal crisis of 2010 boosted the coordination of the economic policies of the countries, as well as a dynamic and invasive policy of the European Central Bank. It is, therefore, a matter of political decision whether the current health crisis will give rise to policies of greater solidarity among Member States, or cause the questioning of the fundamental freedom of movement and settlement of European citizens. The German-French proposal for a "Recovery Fund" from the pandemic through common issuance of debt, control by the European Commission, and the balancing of state aid that undermines the single domestic market (see here) and the bond Purchase Program due to the emergency created by the pandemic (Pandemic Emergency Purchase Program) of the European Central Bank are positive indicators.

It is crucial to remember that in addition to natural phenomena or the actions and reactions of unregulated markets, there is also the political power and political voluntarism, which can turn the course of history as far as possible. Political power is now very effective provided that it is exercised at EU level, as no European state can face on its own the demands and difficulties of globalization, which -even if it changes in some of its features-, it remains unstoppable. Hence, what is needed is to strengthen Europe's political power and economy, so that it can play a decisive role in any effort towards global governance, even if this is functionally defined.




This article is part of the DOSSIER "FOCUS: COVID-19 - Political Debates on the Pandemic with a European Focus"