How to prevent the virus crisis from becoming a fundamental rights crisis?

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Allar Jõks. Source: Siim Lõvi /ERR

Provided we do nothing to strengthen judicial review, offer mitigating measures for businesses next to restrictions and avoid unnecessary ones in the coronavirus crisis, we will become jointly responsible for having defeated the virus at the extent of the rule of law.

Various international studies show that the level of fundamental rights and democracy in the world has deteriorated during the pandemic.

Ivan Krastev has found that COVID-19 has put democracy on hold, at least in Europe, with many countries enacting a state of emergency; but by doing so, it has increased people's desire for a less authoritarian government. One consequence of civil rights and liberties being frozen will be a rejection of authoritarianism, rather than an embrace of it.

Today, I will discuss how the government's virus policy has affected fundamental rights and how to prevent the virus crisis from turning into a fundamental rights crisis. The following is not an indictment of the government but an impassioned description with some possible solutions.

In order to not become an armchair virologist, I will not address how Estonia has coped with the fight against the pandemic and which measures worked and which did not.

Link between crisis management and fundamental rights?

It can be argued that, as a rule, fundamental rights are guaranteed in a country where the quality of governance is high. Good governance and fundamental rights can enhance each other. If, for example, the government's capacity to organize vaccination is weak, this will lead to the need for further restrictions (restrictions on movement, restrictions on events, business restrictions, school closures etc.), which in turn will seriously undermine fundamental rights. And on the contrary, if different fundamental rights are carefully considered when controlling the virus, the measures implemented will also be more targeted and effective.

Virus management quality

Francis Fukuyama has highlighted three key factors affecting the success of virus control:

  1. The capacity of the state, including both fiscal and administrative capacity;
  2. Social trust, i.e. public trust in state institutions and people's trust in each other;
  3. The level of political leadership.

Administrative capacity to manage the crisis

The capacity of the state is measured by the government's use of its power and resources to plan, coordinate and effectively implement policies.

Administrative capacity depends in many ways on the management model. At the beginning of the crisis, the management model for crisis control in Estonia was centralized around the Health Board, now the center of gravity of decision-making has been transferred to the government.

What impacts have been brought about by the political governance model of crisis management?

1) All political convulsions can spill over to the coronavirus front. Imagine a passenger plane called the Republic of Estonia that two or three pilots want to steer in different directions depending on the number of parties in the government coalition. During the first and second waves, a significant part of the government's steam was spent on a referendum on marriage. In the spring/summer of 2020, anti-virus laws were modernized on Toompea Hill, but despite this, in the autumn of 2020, the government had to justify the incomplete norm for wearing a mask on the grounds that "it was not possible to foresee everything in life."

The rules necessary for the obligation to wear a mask were not laid down in Estonia until spring 2021. This, in turn, made it difficult to monitor and shape public attitudes.

2) Members of the government from different political parties compete with each other in terms of who is the first to announce a new restriction or mitigation. The public and those concerned will learn about many of the new guidelines in a Facebook post by members of the government.

3) In dealing with day-to-day crisis management, the government may lose sight of the bigger picture and fall prey to micromanagement. The government has succeeded in imposing bans and orders. However, there are difficulties in drawing up and implementing an exit-strategy, organizing vaccination and offering mitigation measures to the most affected companies. However, none of this can be done if, for example, the prime minister has to deal with establishing a quarantine in the Raatus dormitory in Tartu.

4) The inevitable consequence of political leadership is populist crisis management, where restrictions are made on the basis of public opinion rather than scientific and evidence-based arguments.

5) Ambiguity in the chain of responsibility. It is not clear who is responsible, for example, for poor organization of vaccination or the overheating of the [Health Board's] cold storage. Let us recall that when €3 million worth of vaccines were destroyed in the cold storage of the Health Board, the minister of social affairs stated that he alone should not be held responsible for this. This was followed by the statement of the director of the Health Board that he should not be held responsible either.

Norms with gaps and controversial communication make it difficult for healthcare professionals, police officers and local authorities to fight the virus. Incomprehensible restrictions, however, cause defiance even when they are necessary.

It can be argued that the strength of the Estonian state officials and the digital state is a myth. Perhaps, as former EV President Toomas Hendrik Ilves so strikingly put it, "We have become complacent, fearful and staid. How else to explain the ministry's stubbornness in maintaining that an Excel spreadsheet from the 1990s and a couple of vans from the Health Board can arrange for the distribution of vaccines.

In conclusion, one can wonder with considerable concern – how prepared are we for future crises?

Social trust in crisis management

Without social trust, the government cannot successfully repel the crisis. Public support and collective behavior, including social solidarity and self-discipline, are key to successfully solving the virus crisis. Strong social legitimacy encourages compliance with government measures and thus the containment of the pandemic. And, reversely, low legitimacy increases the public's unwillingness to comply with established rules. Trust between people increases solidarity and public control over the activities of the government.

According to public opinion surveys, the credibility of the Estonian government and institutions has increased during the crisis. Certainly, trust has been positively influenced by the involvement of scientists and specialists in the fight against the virus. At a time when the weight of the words of scientists has increased significantly, the question of responsibility and honesty also arises.

Paradoxically, the pandemic initially restored trust in expert know-how and science, while at the same time it produced some of the most shocking conspiracy theories.

The same cannot be said of trust between people. Low social trust between people leads to polarization and devastating consequences for society, such as intolerance of different opinions. As a result, freedom of expression and opinion and public control over the government's actions have suffered. Most people do not want to know what the government is doing wrong in the crisis. There is a call for a stricter approach and a softer attitude towards government.

The justice chancellor has aptly said that the pandemic has highlighted the origins of savagery in Estonian society. This results in the intolerance of different views, fear of asking critical questions about government policy and the humiliation of so-called virus dissenters.

Questions about the objectives and impact of the restrictions have come to be viewed with contempt, as Chancellor of Justice Ülle Madise has pointed out. Without delving into the content, anyone who thinks that the government must respect the law is equated to a virus denier in the (social) media. From here, we are only a step away from a society where the majority believes that the government is not bound by constitutional requirements.

Reading certain critical opinions about government restrictions, I find myself wondering where the author of the article found such courage. And this in Estonia in 2021!

What other factors have influenced social trust?

Paradoxically, the involvement of scientists and experts has made it more difficult to balance different fundamental rights. The explanatory memorandum of the government orders does not show how restrictions affect education, entrepreneurship or cultural consumption patterns. Alternative restrictions such as dispersion, limitation of opening hours or occupancy have also not been considered.

Instead, the explanatory memorandums are teeming with references to the practice of different countries in order to justify various restrictions. Ivan Krastev has succinctly said, "I do believe that if there is one dictatorship in the world, then it is the dictatorship of comparisons… Trying to compare the performance of your government to other world governments." Chancellor of Justice Ülle Madise has also explained that "disproportionate restrictions cannot be justified by the argument that restrictions are stricter in other countries."

And here I do not blame the scientists. It is not their duty to consider the impact of different restrictions of fundamental rights.

It's the government's responsibility. As the well-known thinker Yuval Noah Harari explained in the Financial Times: "When deciding whether to impose a lockdown, it is not sufficient to ask: 'How many people will fall sick with COVID-19 if we don't impose a lockdown?' We should also ask: 'How many people will experience depression if we do impose a lockdown? How many people will suffer from malnutrition? How many will miss school or lose their job? How many will be battered by their spouses?'"

Antoine de Bengy Puyvallée has stated that the solutions of professionals and scientists for defeating the virus tend to simplify the equation, focusing on a single issue: limiting the spread of the virus. Policymakers, however, have to take into account the side-effects of public health measures and other interests at stake.

Is it up to the Science Advisory Board to consider the different fundamental rights and take the bigger picture into account? No, it must be done by those who are chosen and appointed. Moreover, there is no scientific method for balancing and considering the impact on different fundamental rights and values.

How to put political responsibility where it should belong, i.e., how to force the rulers to act as the government of the republic? The president of the republic has something to think about. And not just him.

Social trust is also undermined by a lack of judicial control over the legality of the restrictions and by almost non-existent parliamentary oversight of the government's actions in controlling the virus.

One explanation, for why judicial review is weak, may be the fact that nationwide and universal restrictions are imposed by government regulation, not legislation. As a result, the justice chancellor cannot challenge the restrictions through constitutional review and everyone will have to challenge the restrictions individually. If I, for example, successfully challenge the obligation to wear a mask in court, then I won't have to wear a mask, while those who did not contest the order still do.

Social trust can also be undermined by the fact that parliamentary oversight and the participation of the Riigikogu in shaping virus policies are marginal. It is surprising that we are at the beginning of the third wave but the Riigikogu has still not established a special committee in relation to Covid-19.

Political leadership

There are different theories, but in summary, political leadership can be evaluated by examining how the decisions and messages of political leaders are implemented and received by the public.

Dr. A. S. Bhalla has based his assessment of political leadership on cooperation between three so-called "players," (1) political leaders, (2) agents from both the public and private sectors and (3) followers, or the public.

According to Bhalla, the leadership of politicians is judged by how they have handled planning and preparedness for the virus, designing and formulating strategies and communication. The success of the agents is assessed on the basis of how decisions are implemented and compliance with the rules is ensured. Followers will be judged on the level of trust in government actions, the level of self-discipline and social solidarity.

Cooperation between players is assessed on a scale – cooperation, competition or conflict.

A conflict or competition between political leaders, agents and followers, lack of preparedness, poor mobilization of medical resources, low confidence and politicization of the pandemic is considered a failure.

Leadership can be considered a partial success if there is at least limited cooperation between only two out of the three key players, good resource mobilization and moderate public trust and confidence in government measures.

Political leadership can be considered a success if there is full cooperation between leaders, agents and followers; excellent resource mobilization, effective communication with the public and a high degree of trust and confidence in leaders and the government.

What is the level of political leadership in Estonia on this scale? Let it be up to each reader to decide.

The management model applied in Estonia has led to competition between different players. For example, during the "first wave," the public often felt that there were disagreements between the Health Board and the government on the assessment of the situation and the planned measures. As a result, the role of the Health Board was significantly changed, which is why, with changes in legislation in the spring of 2020, the role of the Health Board was reduced and greater authority shifted from experts to the political level, i.e. the government.

It is increasingly noticeable that the assessments of the proposed measures by scientists and the government have diverged. This is evidenced, inter alia, by the fact that while previous explanatory memorandums on government orders contained references to the views of the Science Advisory Board, on August 23, 2021, there was no mention of it. Nor was it overlooked that the government made wearing a mask mandatory, although the Science Advisory Board thought that this could remain a recommendation.

Competition can also be seen between members of the government. For example, ministers from different political parties compete with each other to see who can be the first to announce a new restriction or a decrease in measures against the virus.

Legal obedience will certainly be influenced by the example of political leaders. In the presidential elections in the Riigikogu earlier this week, it was evident that a majority of the members of parliament did not use a protective mask.

The quality of political leadership is also negatively characterized by the fact that public sector cooperation with the private sector is weak. Let us recall the enthusiasm with which ministers have consistently rejected private sector offers to better organize vaccinations, for example.

In view of all of the above, it is no wonder that purposeful restrictions alternate with illogical ones, and the individuals concerned will learn about many of the new guidelines from Facebook posts by members of the government. It often remains cloudy, what exactly is forbidden and what is allowed. This, in turn, affects legal awareness and obedience.

Solutions

Ivan Krastev has said that in the early stages of the crisis, people willingly granted extraordinary powers to their governments, but they will become increasingly uncharitable as economic concerns begin to supplant public health ones. This is the changing nature of the COVID-19 calamity: a health disaster that turns into an economic one makes the political consequences of the crisis incredibly difficult to predict.

So, what can be done to ensure that the virus crisis does not turn into a fundamental rights crisis? In order to prevent the virus crisis from turning into a fundamental rights crisis, the quality of governance, social legitimacy and the quality of political leadership must be increased.

In particular, the model for virus management should be changed by strengthening the capacity of the Health Board and by attaching the Science Advisory Board to the Health Board.

Parliamentary oversight of the main constraints and the preparation and implementation of the exit strategy, vaccination organization and the provision of mitigation measures should be increased.

It is necessary to abandon the notion that virus management means only the imposition of commands and restrictions.

We should stop blindly following other countries. Raul-Allan Kilvet, professor of health management at the University of Tartu, has emphasized that the fixation on restrictions is a global problem, because all governments want to show themselves to be effective and decisive, but Estonia does not need to copy the stupidity of others. Restrictions on movement only work in the early stages of the epidemic, when it is still possible to prevent the spread of infection and only as very strict and total measures, such as in China. Nowhere else have the restrictions brought the expected benefits but increasingly more unrest. His recommendation was to put restrictions and testing aside and focus on what is important – boosting the rate of vaccination.

On August 24, 2021, Toomas Asser, rector of the University of Tartu, called on the government to stop jumping from one place to another with unjustified restrictions.

It should be a rule that any new ban will be accompanied by a mitigating measure for businesses or at least a clear message of the government's willingness to offer a helping hand.

In order to strengthen judicial review, a solution should be created through which constitutional review is extended to restrictions applied by the government.

Of course, we can also do nothing. But in this case, we will become jointly responsible for the fact that when we defeat the coronavirus, we will have done so at the cost of the rule of law.

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Editor: Marcus Turovski

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