In the book, you write on one hand about the solidification of the Executive’s power and their rising presence in the media. The Parliament on the other hand didn’t play a huge part in the decision-making process concerning corona measures. In what ways did the Parliament fail to exercise its prerogatives, especially its control over the executive branch?
After legal preparations and government responses had been neglected in February and even after the warnings from Iceland regarding the source of infection Ischgl/Tyrol, it became necessary to react very quickly in mid-March. It became the work of just one weekend. Therefore, there were collective laws, there was no review. This still can be argued in such an emergency situation, but what was missed was the immediate establishment of an accompanying monitoring committee (in Austrian parliament: a subcommittee e.g. of the Health Committee). Here, parliamentarians could have called for information and documentation of the legislation that was tabled. However, the opposition parties did not demand such a control committee at all. They joined the “team Austria” in closing ranks – as demanded by the governing parties. And they were praised by the government for this “constructive cooperation”. The alarm bells should be ringing for an opposition party when being praised so much.
Moreover, if Parliament does not exercise control, mistakes are more likely to occur, which ultimately have to be remedied by the judiciary branch. Furthermore, it is important that opposition to government action can already be exercised in the institutions provided for this purpose, i.e. parliament and opposition parties. If it is not possible there, the protest is much more likely to be articulated by conspiracy theorists and on the extreme fringes of the political spectrum.
You focus on the fundaments of liberal democracy, which include the need for alternatives to every legislation proposal. To what extend is it essential in a democracy to have those alternatives amid the legislation process?
As just mentioned, if it is not possible to even articulate alternatives in parliament, the protest is much more likely to be articulated by conspiracy theorists and on the extreme fringes of the political spectrum. Additionally, we have to know: There is no state of emergency foreseen in the Austrian constitution. The government or the federal president cannot decide alone. Even in times of crisis, the constitution obliges us to follow the normal law-making process. This can be speeded up, but it requires the consent of the opposition. And that is where the issue was given out of hand. You have to react quickly, but you can also monitor the process, and parliament has not done that. It was not until a month later, in April, that resentment began to rise among the opposition parties and the mood changed.
You also point out another issue in Krisendemokratie, neglected laws (schlampige Gesetze), which lack clarity and can be misinterpreted. Why is legal technicality (juristische Spitzfindigkeit) essential for the Rule of law?
Let’s go farther back here: Chancellor Sebastian Kurz accused critics of negligent legal provisions as being “spitzfindig” and ridiculed them for their attentiveness. I would translate “spitzfindig” as being professional to a fault. This is essential to the rule of law. I would even say it’s a precondition of the rule of law. Indeed, being professional to a fault can be annoying among your colleagues because it often means longer hours, more discussions, more work, but it’s a good thing regarding the rule of law. We all want police officers, public officials or judges to professionally obey the law. Just think about the opposite: sloppiness, carelessness? Then it’s only one step away from arbitrariness. And in terms of a political scientist arbitrariness regarding the law is not so far from despotism. As citizens we should expect and ask for public officials to be professional to a fault.
In the book, you describe disinformation as one of the biggest challenge facing the Austrian democracy during lockdown. You criticise the way the government chose to communicate. The lack of transparency got to a point, where even the police acted upon fake laws. What role did the judiciary branch play in regards to the fake laws and disinformation strategy?
In political science there are several methods to measure the quality of democracy. With CoViD19 we have seen a lot of backsliding: Governments violating democratic standards for emergency provisions in response to the Covid-19 pandemic, like measures not meeting the UN standards of being “proportionate, necessary and non-discriminatory”. One of the indicators is about government disinformation campaigns. In Austria, the government did not communicate clearly on what is a legal regulation and what is only a recommendation. Ministers claimed – and so the police punished – that it was not allowed to visit friends or to linger in public space for no reason. But that was not in any law. Therefore they communicated ‘fake laws’. It is not up to a government in a democracy to spread disinformation about the current legal situation. They have to inform about what is the law and what is not, because the rule of law is also about predictabilty. As a citizen I have to able to predict what behaviour will be punished and what is still within the legal frame.
In addition, the Austrian Integration Fund (ÖIF) also “informed” people in their mother tongue by sending them text messages. There was even more false information in these texts than in the press conferences. As a foreigner one had to get the impression that even less would be allowed than an Austrian. This was clearly discriminatory information.
Ultimately, it was up to the judiciary to draw attention to these fake laws and misinformation – and to revoke penalties. Nevertheless, thousands of people had already been wrongly fined. Therefore, the opposition parties demanded a general pardon. But it did not come to that.
You wrote two lessons that focus on fundamental rights, which have been restricted by the corona measures. How did the crisis show that government fails to take into account those fundamental rights and protect them? How can we act on it as citizens?
We saw massive encroachments on our fundamental rights in both democratically and autocratically governed states, e.g. concerning freedom of religion (people were not allowed to gather for prayer), personal freedom (people were isolated and/or quarantined, told to stay at home). These fundamental rights also include political rights such as freedom of association, the right of assembly, i.e. the right to demonstrate; elections were postponed etc. There is one thing I would like to say first and foremost: The severity of the intervention does not make it undemocratic per se. What matters is how these measures come about and how they are handled. Both, the Austrian (as well as any other) constitution and the European Convention on Human Rights allow massive interference with our fundamental rights but they have to be “proportionate, necessary and non-discriminatory”.
In Austria one could see that, for example, the right of assembly was not handled with care. The police initially banned all demonstrations, even those that had announced special measures on how they would comply with the rules of hygiene, how they would keep their distance. Austrian officials executed an absolute ban on demonstrations. That was not the lesser measure that the European Convention on Human Rights asks for. Just try an international comparison: The German Federal Constitutional Court said in an urgent preliminary ruling procedure that a blanket ban on assembly was inadmissible. As soon as April, demonstrators in Israel proved that it is indeed possible to assemble in a “corona-conform” manner wearing masks and keeping the distance. It would have been precisely the task of the police in cooperation with the organisers to ensure that rules of hygiene are observed.
We as citizens have to demand our rights. We have to urge the state to learn from its failures. One strategy concerning banned demonstrations is taking the issue to the court. It doesn’t help us now, but it helps us next time. Courts are very special guardians of democracy and thus can be used as instruments in defence of democracy. Constitutional courts and the European Court of Human Rights (ECHR) are ultimately responsible for my basic democratic rights.
You warn in the book about the “war” rhetoric used by the Austrian government and the risk that comes with the state of emergency. Have you seen nowadays signs that some temporary measures are becoming long term measures?
The war rhetoric is inappropriate because it pretends that the virus is a deliberately acting enemy from whom we must hide our strategy because otherwise he is at an advantage; moreover, an enemy against whom we must retreat into the nation state. We are not at war. We do not have to play hidden cards. Governments can explain their strategy openly and transparently, can put the basis of their decisions online in the smallest detail so that we can check them.
Most measures in Austria are limited to 31 December. However, the pandemic will accompany us for a longer period of time, which is why an extension of the measures is currently under political preparation. However, a time limit does not protect against the extension (possibly several times) of an exceptional law. This approach has been observed in recent years, for example in France in connection with anti-terror legislation: After the terrorist attacks of 2015, the state of emergency had been extended six times; when the National Assembly finally ended it, some of the emergency laws were transferred to normal legislation and are now an integral part of the French legal system. My colleague Matthias Lemke calls it “state of emergency 2.0” – through the plausibility check pattern of insufficiency (i.e. the assertion that the existing legal framework is not sufficient to prevent such a crisis and all its consequential costs in the future as well) the executive is given more power resources in the long term. Therefore, we as citizens must be especially careful.
The role given to the civil society was restricted amid the pandemic in Austria, even though other countries found solutions to enable citizen participation through digitalisation. What are the risks that come with more digitalization regarding participatory democracy, especially in terms of social inequalities?
I read a lot about how democracy can also be done in the home office if we’d just provide people with the digital infrastructure: Vote from home, discuss online, engage in digital protest! However, the digital space can never replace the public space, it can only complement it, especially since there are also class and education-specific inequalities in access to and use of digital media. Digital democracy is not class-neutral, not age-neutral. Political science research has shown that well educated and high-income, i.e. socio-economically privileged sections of the population not only exercise their right to vote more often, but also make increasing use of other means of political influence, such as digital. While the poor, those at risk of poverty and those from so-called under-served households not only vote less frequently, but also make less use of other democratic instruments. Seeking more democracy through digitalisation alone or, in times of crisis, replacing the restriction of basic political rights and freedoms with freedom on the internet, ignores or negates the social question of democracy. The mere digitalisation of democracy without accompanying measures – such as the expansion of political education in schools in conjunction with “digital literacy” or the free provision of basic technical equipment and broadband internet for low-income population groups – merely expands the repertoire of actions of those who already participate.
You mention a lack of criticism towards the government measures, from media, political opposition… You also emphasise on the importance of pluralism in a democracy, meaning that for every measure, there should be opinions and proposals coming from various sources and that is something the Austrian democracy failed to provide during the health crisis. What did the media fail to cover and comment on?
Freedom of the press and independent reporting serve as guardians of democracy and as such are also an indicator of the quality of democracy. According to “Reporters Without Borders”, press freedom in Austria had already deteriorated in 2019 and was in further decline in 2020. I sometimes had the impression that the media were being played, and they were allowing this to happen. Many journalists have become too involved in the government’s narratives and do not question it enough. For weeks, they live broadcasted every single press conference but did not ask questions like: Why were no precautions taken following the warning issued on 9 January by the European Union’s Early Warning and Response System? How could it have come to this point that Austria reacted so late despite the warnings of the EU and WHO? Why had the alerts from Iceland and Denmark regarding Ischgl not been heeded?
We have a huge problem based on press subsidies and newspaper advertisement in Austria because it favours the yellow press. Moreover, Austria is still lacking a modern Transparency-and-Freedom-of-Information-Act” and ranks last (!) in the “Global Right to Information Rating”. All too quickly, crises become the hour of the hardliners which is why democracy needs a free press and freedom of information.
You wrote about a 4th emerging power in democracy, the consultative power. How could Austria benefit from more direct democracy when facing its next crisis, especially with Bürgerrat (citizen councils)?
I have been campaigning for years for citizens’ assembly to complement and strengthen democracy. It is not just about direct democracy in the narrow sense but about deliberative, participatory democracy, about equality in who has a say, whose voice is heard. The CoViD19 crisis has increased social inequalities. It would be important to establish assemblies in which randomly selected citizens would discuss the consequences of the CoViD19 crisis and formulate recommendations for action. Such a citizens’ council could discuss how we as an open society can deal with the upheavals of those months in a socially just manner. The crisis has affected people differently. But those who are hardly heard in normal times are now even more overlooked. I’m thinking of the poor, minimum pensioners, single parents etc. A citizens’ assembly on “How to tackle the crisis?” could actually present new points of view to politicians and public officials.
As the number of corona cases is rising, do you think the government will handle this second phase with more transparency and more respect towards the fundamental rights?
Meanwhile, not just me but also the Austrian Constitutional Court has very officially specified what went wrong and what has to be done better: First and foremost, the drafting of laws has to be improved, technically as well as politically. To do so, parliament must again make politics and fulfil its control function. If a second wave of infection is expected in autumn, the legal foundations must be laid now. It is also the time to set assessment deadlines and to establish ongoing assessment procedures. Additionally, politics has to listen to the civil society more carefully by exercising an in-depth review of legal provisions. And we must consider what to do with the regulations that expire on 31 December. If we do not have vaccination soon, we will be faced with the pandemic until 2021. Instead of simply extending laws in their entirety, one could look at what is no longer necessary, what needs to be improved, and make a proper assessment by involving the opposition parties as well as civil society. In addition, the police must be instructed on how to deal with demonstrations in the future if the infection rates rise again. A precise plan is needed on how the right of assembly can be exercised even in a crisis.
