6/4/2020
Evangelos Venizelos
The pandemic as a challenge to liberal democracy and the protection of fundamental rights*
Thank you very much for the invitation. I am delighted to be here, among world-class theologians.
The concerns we have here in Greece, are also global concerns. In fact, I would dare say that the Greek Constitution is one of the most “careful” constitutions in Europe, one of the most liberal in the political sense of the word. Personal freedom and personal security are fully guaranteed. Issues related to states of emergency are regulated in an extremely restrained manner.
In other countries, even in EU Member States, it is easy, sometimes dangerously easy, to apply the so-called state of emergency (état d'urgence) or state of exception (état d'exception) which culminate in the most well-known exception, the state of siege (état de Siege/ Martial law). In France, a country with a liberal tradition, a law was passed due to the pandemic on the state of sanitary emergency (état d'urgence sanitaire) in recent days.
Imposing temporary restrictions on certain fundamental rights due to the health crisis under the relevant constitutional provisions that establish the rights and provide for the possibility of imposing certain restrictions this is a totally different legal situation to the suspension of the constitutional provisions which establish the protection of certain fundamental rights.
The proclamation of a national state of emergency has led some Member States of the Council of Europe (11 out of 47) to request a derogation (dérogation) from the ECHR. In other words, it leads them to resort to the application of Article 15 of the ECHR, which provides that in cases of war or serious threat to the life of the Nation -which may also be due to health reasons- a Member State may request a derogation from the protection offered by the ECHR -with the exception of the protection of human life, the prohibition of torture, the prohibition of slavery and the prohibition of retroactive effect of criminal law.
Among these countries are EU Member States such as Romania and Estonia, while Hungary has not initiated the formal procedure for the derogation from the ECHR, but has declared a state of emergency pursuant to its Constitution. The Hungarian Constitution has the most intense ideological references, with a strong nationalist spirit. It is perhaps the most biased in these matters and provides for five different exception regimes: not only a state of siege and a state of war, but also a state of emergency and other situations, which, surprisingly, do not explicitly include matters of public health. Nevertheless, with an apparently proportional application, the Hungarian Parliament decided to implement this regime, the state of emergency and suspended its operations, which is practically unnecessary. The Orban government controls the majority of 2/3 of the Parliament , so it has the ability to pass whatever it desires. However, the symbolic value of suspending the functioning of the Parliament is very significant. It sends a strong message of questioning the effectiveness of the institutions of the representative liberal democracy, during a pandemic.
While challenging the acquis of modernity, the COVID-19 pandemic as a global phenomenon that began in China, highlights a very important part of this acquis: the state itself, the nation state. Everyone is expecting that the State will take on the role of a crisis manager and they will expect financial support from the state even more, in Keynesian policies. This State is both powerful and powerless at the same time. Its sovereignty is exercised and challenged by a small and invisible hybrid enemy, that is the coronavirus.
Thus, this state must now manage the crisis regardless of the internal political system. Authoritarian regimes such as those of China or Russia, democratic regimes of various kinds, from the USA to Greece, are called upon to manage the crisis. Democracy must prove that it can manage the crisis, while respecting as much as possible the fundamental rights and the institutions of democracy. Thus, it is very important that there are certain counterweights in place; counterweights within the rule of law. This means that all our rights that are not linked to the pandemic, such as freedom of speech, freedom of research, freedom of teaching, freedom of information, should be exercised intensively. The democratic institutions -that is, the Parliament in particular- must also continue their operation, even with the appropriate health restrictions in place.
In Greece, therefore, the extreme point which the « constitué » Law of Necessity reaches as a coordinated situation provided for by the Constitution and the rule of law, (the « constituant » Law of Necessity that exceeds the provisions of the rule of law is another matter), culminates in a very mild institution like the Acts of Legislative Content of Article 44. The executive legislates primarily, but its acts must be submitted to Parliament for ratification, otherwise they cease to apply. The Act of Legislative Content is subject to judicial review on its content, -and not on the reasons which led to its issue. In this way, the court reviews the measures imposed in terms of constitutionality and compatibility with the ECHR and EU law.
In France, several decisions have already been issued by the Council of State in relation to the constitutionality of acts or omissions on part of the government, related to the control and management of the pandemic. Even before the imposition of the so-called lockdown, the association of new doctors called for stricter measures: for example, bans on movement or at least a ban on the operation of farmer markets, and the performance of diagnostic testing, at least for health personnel. The French Council of State allowed the political authorities to escalate the measures on the basis of the experts' recommendations and did not want to replace it, in this case, in its role.
Where are we standing today? Strict restrictions on freedom of movement have been imposed with the so-called lockdown. Freedom of movement is the what gives birth to the public space, the territory, the market as a political forum, the market as a economic activity , it gives birth to representative democracy, it gives birth to religious freedom and it also gives birth to the capitalist mode of production. Because without movement, you have no trade, without trade you have no accumulation of capital, you have no industry and of course you do not have the corresponding political institutions created through these processes. Freedom of movement is the main component of individual, physical freedom [Article 5 (3) of the Greek Constitution]. The Greek Constitution explicitly provides for the possibility of imposing restrictions for reasons of protection of public health and the health of patients (interpretative clause under Article 5). Of course, the legislator never imagined that we would reach such extreme measures, in both intensity and duration, but the proportionality of the measures depends on the epidemiological data, on international scientific assumptions, which are further specialised in each country. We saw that the countries that did not follow this model were led to a dead end, as in the case of the United Kingdom, the United States and the social-democratic Sweden.
In Greece the measures are therefore constitutionally based mainly on the interpretative clause under Article 5 which is an ordinary and equivalent constitutional provision. All these are provided for in the ECHR for health reasons, if the following conditions laid down by the Convention for each restrictive measure are met: the law should provide for it and the principle of proportionality should be respected, that is, it should be a measure appropriate for the purpose the legislator invokes, a measure necessary in a democratic society and as mild as possible.
But we are always talking about restrictions, we are not talking about suspension of rights. As we have said, there are EU Member States which have already suspended the relevant protective provisions of their national constitutions. In Greece, this has not happened, nor will it happen. Article 48 of the Condtitution concerning the state of siege cannot be applied. The war on the virus is a metaphorical war, not a literal one. It is not a war or a real military mobilisation that justifies a state of siege- and this is very important. Elsewhere, the various concepts may be used with ease, rhetorically, philologically, but when we are speaking about the Constitution and the matter at hand is the restriction of rights, we speaking literally, therefore the situation is neither war nor a military mobilisation. This is a national and global effort, but not a military one, not due to war.
Of course, what remains a major threat is the matter of privacy and personal data and their protection, now that medical records are being set up or digital detection mechanisms are in place to detect someone who is ill, in order to limit the transmission of the coronavirus. This issue is regulated at three levels for the EU Member States: First, at the level of the Council of Europe, namely through ECHR and the so-called Convention 108, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108) . Secondly, at the level of the EU, through the Charter of Fundamental Rights of the EU, the General Data Protection Regulation (GDPR) and the directives governing digital communications and transactions and the protection of telecommunications privacy. Third, at the level of the national Constitution and national legislation. The levels of independent authorities and bodies with responsibilities related to the protection of personal data are similar.
I hope that these mechanisms will prove to be sufficient and that big providers of infrastructure and services in the field of telecommunications and the Internet will respect the institutional structure of Europe in this sensitive area. The pandemic can be addressed through the use of all digital capabilities without compromising personal data, with the exception of cases provided for and passed at an unsuspected time. The next few weeks will be particularly critical in this area.
I now come to the question of the relationship between the state and the church and religious freedom under conditions of extraordinary legislative measures for reasons of protection of public health due to the pandemic. The pandemic does not bring about a change in the legal status of state -church relations (especially of the church of the prevailing religion ) . Nor does it change the relations of the state and all other religious associations, of all religions and denominations. Nor does the law impose restrictions on religious freedom. The law does not impose restrictions or a complete ban on participating in the sacrament of Holy Communion.
The law, as an expression of the state power and the responsibility of the state to deal with the health crisis, imposes restrictions on the freedom of movement and the freedom of assembly of all citizens, all individuals in the Greek territory. It does not impose restrictions on the faithful, on the members of the Orthodox Church, but on everyone, regardless of religious or philosophical beliefs. The ban on movement and gathering in open or closed spaces leads to a ban on gatherings for religious purposes- not to a ban on worship. If worship does not presuppose the gathering of citizens subject to the legal order of the state , it is practised completely freely .
The question arises: why are there exceptions for supermarkets or banks and there are no exceptions for places of worship? The former are excepted for reasons of food supply and for absolutely necessary financial transactions or small movements; for strictly defined practical needs and reasons. There are no exceptions for purely spiritual reasons (religious, philosophical, educational, artistic). The sacrament of the Holy Communion is performed, but those subject to the legal order and the Constitution are obliged to respect the ban on movement, whether it concerns religious freedom, economic freedom, freedom of education, cultural participation, etc.
The church, as expressed by the synodal decisions of the Ecumenical Patriarchate, the Church of Greece, the Church of Crete, realizes that “the pandemic does not threaten the faith but the faithful”. The Christian communities of the first centuries betrayed the faithful by offering hospitality to the great pandemics of the time. There are no persecutors of the faith now in Greece and the other EU member states. The voluntary participation in the martyrdom is forbidden ecclesiastically. The so-called heroic statements of some, that they are not afraid of the virus and want to take part in church gatherings of worship, despite the legislative bans on freedom of movement are deeply irresponsible and selfish. The health of each one of us is connected to the health of the other, to the spread of the virus, the solidarity and love that lies at the foundation of society (κοινωνία), but also of communion (κοινωνία).
Note:
For a further analysis, see: Evangelos Venizelos, "Pandemic, Fundamental Rights and Democracy - The Greek Example" Published on COVID- DEM, April 2020 [PDF] & [Link]
*Speech at the international webinar, organized by the Center of Ecumenical, Missiological, and Environmental Studies (CEMES) at 6-11/4/2020, on «FAITH AND COVID-19»
Published:
Evangelos Venizelos, “The pandemic as a challenge to liberal democracy and the protection of fundamental rights”, in Petros Vasiliadis (ed), The Church in a period of Pandemic, (CEMES Publication 2020) pp 19-24
In Greek, see here [link]
