COVID-19 emergency measures and the impending authoritarian pandemic | Journal of Law and the Biosciences | Oxford Academic

Stephen Thomson ,

School of Law

, City University of

Hong Kong

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Eric C Ip

Centre for Medical Ethics and Law

, University of

Hong Kong

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Stephen Thomson is an Associate Professor, School of Law, City University of Hong Kong. We are grateful to the anonymous reviewers for their thoughtful and constructive comments. Any errors, and the views expressed, remain our own. All URLs were, unless stated otherwise, last accessed on August 8, 2020.

Eric C. Ip is an Associate Professor, Centre for Medical Ethics and Law, University of Hong Kong.

Author Notes

Revision received:

27 July 2020

Published:

29 September 2020

ABSTRACT

COVID-19 has brought the world grinding to a halt. As of early August 2020, the greatest public health emergency of the century thus far has registered almost 20 million infected people and claimed over 730,000 lives across all inhabited continents, bringing public health systems to their knees, and causing shutdowns of borders and lockdowns of cities, regions, and even nations unprecedented in the modern era. Yet, as this Article demonstrates—with diverse examples drawn from across the world—there are unmistakable regressions into authoritarianism in governmental efforts to contain the virus. Despite the unprecedented nature of this challenge, there is no sound justification for systemic erosion of rights-protective democratic ideals and institutions beyond that which is strictly demanded by the exigencies of the pandemic. A Wuhan-inspired all-or-nothing approach to viral containment sets a dangerous precedent for future pandemics and disasters, with the global copycat response indicating an impending ‘pandemic’ of a different sort, that of authoritarianization. With a gratuitous toll being inflicted on democracy, civil liberties, fundamental freedoms, healthcare ethics, and human dignity, this has the potential to unleash humanitarian crises no less devastating than COVID-19 in the long run.

I. INTRODUCTION

The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that causes the highly contagious 1 coronavirus disease 2019 (COVID-19) was initially discovered in Wuhan, China, in late 2019, and was reported as a pneumonia of unknown cause to the World Health Organization (‘WHO’) on December 31, 2019. 2 COVID-19 proliferated widely across mainland China, before spreading to almost every state in the world, with the WHO recognizing the outbreak as a public health emergency of international concern on January 30, 2020, and as a pandemic on March 11, 2020. 3 As the rates of infection and mortality have risen exponentially on a global scale, health systems have struggled to cope with the rapid surge in infections and deaths, with both local and global shortages of testing equipment, personal protective equipment and ventilating machines, and insufficient local capacity of intensive care units and mortuaries. 4 Communities, regions, and states have been severely affected with untold economic damage, 5 accompanied by mass unemployment and welfare demand, supply chain disruption, panic buying, and a collapse in global financial and commodities markets. 6 These have, to a great extent, been the result of measures taken by governments to stem the spread of COVID-19 infections, ranging from the compulsory closure of retail establishments and the imposition of home quarantine measures to the closure of borders and prohibitions on human contact and assembly, culminating in lockdowns of entire towns, cities, provinces, and even nations, inspired by the initial example of China’s Wuhan on January 23, 2020. 7 The deleterious social and economic effects of this viral outbreak, many times greater than Severe Acute Respiratory Syndrome (‘SARS’) and Middle East Respiratory Syndrome (‘MERS’), will be felt for years to come, to say nothing of the extensive loss of human life.

There is no question that governments are confronted with a challenge of mammoth proportions, nor that many persons—healthcare professionals, public servants, and ordinary citizens—are endeavoring to do their utmost in an urgent and demanding situation. Nevertheless, as governments attempt to deal with the many adversities that the pandemic presents, there are alarming regressions toward authoritarian governance. 8 Governments must be more interventionist in response to public health emergencies, sometimes even taking extraordinary steps such as the enforcement of social distancing, travel restrictions, and quarantine. 9 In recognition of this reality, there is provision for derogation, and limitation, in key international human rights treaties during times of public emergency, including in the International Covenant on Civil and Political Rights (‘ICCPR’), 10 the European Convention on Human Rights (‘ECHR’), 11 the American Convention on Human Rights, 12 and the Arab Charter on Human Rights. 13

A public health emergency does not, however, give license to governments to cast aside their obligations to uphold fundamental rights and liberties, for governments are under scarcely disputable moral, and often legal, obligations to take seriously the burdens imposed on affected individuals, such as losses of personal freedom, of income, and of privacy, discrimination, stigmatization, and excessive stress. 14 Not only are some rights non-derogable, 15 according to the Siracusa Principles endorsed by the UN Commission on Human Rights in 1984, the ‘severity, duration, and geographic scope’ of any emergency measure that derogates from civil and political rights must be ‘strictly necessary’ to the relevant public health threat, and ‘proportionate to its nature and extent’. 16 The Siracusa Principles also provide that measures dealing with a serious threat to the health of the population ‘must be specifically aimed at preventing disease or injury or providing care for the sick and injured’, 17 and that a proclamation of public emergency and consequent derogations ‘that are not made in good faith are violations of international law’. 18 In addition, mandatory measures should only be used as a last resort when voluntary measures cannot reasonably be expected to succeed. 19 ‘[E]mergency declarations based on the Covid-19 outbreak,’ warned another UN body more recently, ‘should not function as a cover for repressive action under the guise of protecting health nor should it [sic] be used to silence the work of human rights defenders.’ 20

The COVID-19 pandemic has nevertheless sparked authoritarian political behavior worldwide, not merely in regimes already considered to be disciplinarian or tyrannical but also in well-established liberal democracies with robust constitutional protections of fundamental rights. Authoritarian governance in the name of public health intervention is understood in the present context as being characterized by diverse combinations of governmental and administrative overreach, the adoption of excessive and disproportionate emergency measures, override of civil liberties and fundamental freedoms, failure to engage in properly deliberative and transparent decision-making, highly centralized decision-making, and even the suspension of effective democratic control. In a nutshell, the pandemic has served as a powerful justification for authoritarianization—the process by which state authorities ‘slowly undermine institutional constraints on their rule’, 21 through various combinations of the above—and populations have largely responded with obedience.

Global history has witnessed numerous instances of emergency powers serving as catalysts or facilitators of authoritarianization, whether in the use of emergency powers to consolidate presidential authority in the Weimar Republic, 22 commit widespread human rights abuses in India under the tenure of Indira Gandhi, 23 silence the political opposition in Cameroon, 24 or promote the political agenda of the federal government in Malaysia. 25 However, the COVID-19 pandemic is in modern times very different in being a global rather than a local or regional event, triggering legal or de facto states of emergency not just in one or two jurisdictions but successively in most of the world’s states. As states have hastily emulated measures adopted elsewhere, in particular through the imposition of curfews, nationwide lockdowns and travel bans, and escalation of citizen surveillance, a wave of authoritarian governance has swept the globe with profound, worldwide implications for democracy, the rule of law, and human rights, dignity, and autonomy. Reinforced by threats of criminal sanction, from fines to imprisonment, states have exerted tremendous vertical, paternalist power on citizens, despite serious questions as to the efficacy, sustainability, and proportionality of adopted measures. Day-to-day life was essentially suspended worldwide, with borders closed, social gatherings banned, business operations ceased, sports events canceled, and religious services suspended; no less than 1.5 billion students in 188 countries were globally affected by school closures. 26 It is now clear, as the pandemic progresses through second and third waves of infection in multiple states, that governments have largely copied the authoritarian example of others, beginning in January 2020 with China’s unprecedented lockdown of tens of millions of people in Wuhan and other locations, 27 buttressed by an uncompromising use of quick response code technology, facial recognition cameras, drones, and other means, to monitor citizens’ whereabouts. 28

This Article studies a new, constitutional ‘pandemic’ that is rising in tandem with COVID-19: the regression of governance to authoritarianism, triggered by the invocation of public health emergency powers. This pandemic is constitutional because emergency powers, when abused, pose a grave challenge to the overarching objective of modern constitutionalism to limit state power in order to preserve liberty. 29 The Article is organized as follows. Section II sets out an analytical framework comprising three domains in which authoritarian governance has manifested most significantly—namely, restrictions on personal movement, surveillance, and regression in healthcare ethics. Section III then considers the use of the COVID-19 pandemic as a pretext for the enactment of excessive and disproportionate emergency measures. While the ongoing nature of the pandemic and shortage of comprehensive national information necessarily preclude systematic and conclusive multinational case studies at this stage, examples are drawn from a reasonable geographical spread and regime diversity. These range from semi-authoritarian jurisdictions such as Cambodia and the Hong Kong Special Administrative Region of the People’s Republic of China, to established liberal democracies such as the United Kingdom and France, and illustrate that the multivariate inclination to authoritarian governmental and administrative overreach is not only found in more authoritarian regimes but also in liberal democracies, and that sufficient institutional mechanisms are needed to deal with governmental excesses and the psychological responses of populations in all states.

Section IV examines several examples of governments bypassing or suspending effective democratic control in the name of combating COVID-19, again drawing on experiences of both semi-authoritarian and liberal democratic states. Section V evaluates the imminent authoritarian pandemic brought about by the responses of governments and the international community to COVID-19, emphasizing a shift toward paternalist totalitarianism. Section VI sums up the key findings of the Article, concluding that a constitutional pandemic of this kind is not, and never will be, the right solution to a public health emergency. It must be stated at the outset, however, that this Article’s overall argument cannot be interpreted as a wholesale endorsement of a laissez-faire approach to pandemics, such as that adopted by Sweden, 30 without committing the slippery slope fallacy. At issue is not the undesirability of implementing public health interventions but that of implementing disproportionate and excessive public health interventions that, through their content or manner of implementation, will systemically erode rights-protective liberal democratic values and institutions. 31

II. FACETS OF AUTHORITARIAN GOVERNANCE IN THE NAME OF PUBLIC HEALTH INTERVENTION

As recently as in February 2018, the WHO classed Ebola, Zika, Middle East Respiratory Syndrome Coronavirus (MERS-CoV), and SARS among the 10 major threats to global health. These included a ‘disease X’, which envisaged that a ‘serious international epidemic could be caused by a pathogen currently unknown to cause human disease’. 32 The following year would see ‘disease X’ come to life and, like SARS and MERS, it would be another coronavirus. COVID-19 was in this regard described by a WHO decision-maker as ‘rapidly becoming the first true pandemic challenge that fits the disease X category’. 33

It is, however, abundantly clear that governments and businesses had not made adequate preparation for a pathogenic outbreak of the extent and severity of SARS-CoV-2. In the UK, for example, ‘Exercise Cygnus’ took place in October 2016 to assess the ‘preparedness of health systems in a pandemic scenario, with involvement at Ministerial level by UK government and the devolved administrations in Wales, Northern Ireland and Scotland’. 34 Despite the UK ranking second of 195 countries in the 2019 Global Health Security Index (measuring preparedness for epidemics and pandemics), 35 and its already having an Influenza Pandemic Preparedness Strategy in place, 36 Exercise Cygnus—the report for which was never made public—is reported to have shown the insufficient capacity of the National Health Service (‘NHS’) to cope with an epidemic. This included a shortage of intensive care unit beds, 37 personal protective equipment, 38 and ventilation machines; 39 each of which was in insufficient supply during the first few months of the COVID-19 outbreak in the UK. A pandemic had even been assessed for a number of years by the Government’s National Risk Register as the greatest risk facing the UK. 40 If governments had been more prepared, including regulatory preparedness, emergency measures may still have had to be adopted, but the palpable lack of preparedness appears to have exaggerated the nature and extent of the response, with profoundly authoritarian overtones.

II.A. Restrictions on Personal Movement

One of the ways in which the COVID-19 pandemic is unique, even among pandemics, is that it has occurred in the period of the greatest population mobility in human history. This is not only seen in the unprecedented international movement of people made possible by air travel but also the local and national movement of people by means of public and private transportation. This has enabled the pervasive and rapid spread of COVID-19 on a global scale. The world is also at its current peak population density and interconnectivity, presenting additional barriers to the containment of the virus in both urban and rural settings. It is in that context that states have imposed restrictions on personal movement and interaction in order to contain and slow the spread of COVID-19. While such restrictions may be motivated by legitimate public health goals, their content and manner of implementation not only have the potential to fail to promote those health goals but also to erode civil liberties and fundamental freedoms.

The UK provides a fitting example of that phenomenon. The Secretary of State for Health made regulations, pursuant to the Public Health (Control of Disease) Act 1984, imposing broad restrictions on personal liberty enforceable by police authority. In addition to restrictions on the operation of businesses, 41 a general restriction was placed on the population during the emergency period by enacting that ‘no person may leave the place where they are living without reasonable excuse’. 42 Among the ‘reasonable excuses’ were the need to obtain necessities, 43 exercise alone or with members of one’s household, 44 seek medical assistance, 45 travel for the purposes of work (where it is not reasonably possible for that person to work from the place where they are living), 46 attend a funeral (generally only of a member of a person’s household or a close family member), 47 fulfill a legal obligation, 48 or access childcare facilities. 49 In addition, it was provided that no person may participate in a gathering in a public place of more than two people except where all of the persons in the gathering are members of the same household, the gathering is essential for work purposes, to attend a funeral, or where reasonably necessary to facilitate a house move, provide care or assistance to a vulnerable person, provide emergency assistance, participate in legal proceedings, or fulfill a legal obligation. 50 These requirements were enforceable by the police, who were empowered to direct a person to return to their place of residence, 51 or remove a person to that place 52 using reasonable force if necessary. 53 The police could also disperse a gathering of three or more persons. 54 Breach of the legislative requirements was an offense punishable by a fine, 55 and police had the power to issue a fixed penalty notice of £60, increasing to a maximum of £960 on subsequent fixed penalty notices. 56

There were important protections in the Regulations. First, the Regulations would expire six months after the day on which they came into force, 57 allaying fears of an indefinite application of restrictions. In addition, a police officer could only direct a person to return to their place of residence, or remove a person to their place of residence, if the police officer considered it a ‘necessary and proportionate’ means of ensuring compliance with the requirement. 58 Though this invested the police with discretion on what was ‘necessary and proportionate’, it would be required to be interpreted in a legally reasonable manner and otherwise accord with public law duties.

However, there were difficulties with the Regulations’ approach to the enumeration of ‘reasonable excuses’ for being outside one’s place of residence. On the one hand, it is commendable that ‘reasonable excuse’ was not definitively prescribed, as a person may have a reasonable excuse—perhaps one that is uncommon—that was not enumerated in the Regulations. On the other hand, the indeterminacy of what is a permissible reason for being outside one’s place of residence opens the door to varying enforcement practices and the requirement for police to decide whether an excuse offered by a person is reasonable within the meaning of the Regulations. This does not, in itself, put the police in a straightforward position, and the official guidance to police was the application of four-step escalation principles—namely, ‘engage’, ‘explain’, ‘encourage’, and ‘enforce’, with enforcement being a ‘last resort’. 59 Litigation would also be necessary to establish whether an individual instance of a person being outside their place of residence for a reason other than one enumerated in the Regulations was lawful.

There is also the potential for, and evidence of, widespread public misunderstanding given the issuance of guidance on social distancing that is not in itself legally enforceable. 60 The presentation of legal requirements in tandem with unenforceable guidelines, without specifically highlighting what is legally required and what is not, can lead to inadvertent unlawful behavior. It is particularly difficult for ordinary members of the public to segregate these when unenforceable guidelines contain specific instructions, such as a walk or exercise being permissible if one maintains a distance of more than two meters from other persons, 61 and that exercise outside is permissible once per day. 62 Furthermore, this can also lead to compliance with guidance on the misapprehension that such compliance is legally required. While this may advance the objectives of COVID-19 containment, it will not necessarily do so in every case. For example, there is no direct causal reason why exercising outside twice per day would put any person at greater risk of spreading or contracting COVID-19 than if a person exercised outside once per day. Moreover, the non-exhaustive listing of reasonable excuses for being outside one’s place of residence can lead to dramatic results, such as family members refraining from visiting dying patients in hospitals on the misapprehension that this activity, which was not listed among the statutory reasonable excuses, is prohibited. 63

France had one of the most rigorously enforced COVID-19 lockdowns in Europe and presented an even more authoritarian case of restrictions on personal movement. As in the UK, France opted for a general prohibition on persons being outside their homes subject to various exceptions, though this list, unlike in the UK, was exhaustive. 64 This included a maximum of one hour daily within a radius of one kilometer from the person’s home for the purpose of a walk or physical activity. 65 However, persons who sought to exercise their right to any of these exemptions must, when outside the home, carry with them a typed or handwritten document attesting to the reason for the trip. 66 This attestation, 67 which requires a declaration of the time of departure from one’s home, served as a legal justification for being in a public place and could be inspected as such by police and other authorized persons. Failure to comply with the lockdown restrictions resulted in fines escalating to €3,750 and six months’ imprisonment, or community service. 68 Not only has the new French Prime Minister since described the economic consequences of France’s national lockdown as ‘disastrous’, 69 but also these draconian restrictions on personal movement are profoundly authoritarian, with a requirement to carry an attestation justifying one’s presence in a public place creating an atmosphere, and engendering a culture, of surveillance and fear. This was accentuated by the French President’s repeated references to France being ‘at war’. 70

Moreover, individual departments were empowered to adopt more restrictive measures when local circumstances so required. 71 This saw a number of local authorities imposing curfews, such as Perpignan in Pyrénées-Orientales department imposing a curfew from 8 pm to 6 am, 72 the Alpes-Maritimes department imposing a curfew from 10 pm to 5 am, 73 and Paris where all outdoor sports including running were prohibited from 10 am to 7 pm. 74 Some of these excessive restrictions were, however, suspended by local courts such as in Saint-Ouen-sur-Seine and Lisieux. 75 There were also examples of measures being struck down by courts elsewhere in Europe, as in Germany where the Oberverwaltungsgericht (Higher Administrative Court) of Mecklenburg-Vorpommern struck down a state government prohibition on travel to various coastal and lakeland areas over the Easter period on the basis of disproportionate interference with freedom of the person, 76 and the Oberverwaltungsgericht of Nordrhein-Westfalen suspended a local ordinance imposing a lockdown on the district of Gütersloh on the basis of disproportionality and unconstitutionality. 77 It was likewise ruled by the Constitutional Court of Kosovo that limitations placed on freedom of movement, freedom of assembly, and the right to private and family life to combat the COVID-19 outbreak were unconstitutional. 78 This pushback by courts—laudable though regrettably not widespread among states—is evidence of the authoritarian nature of governance during the COVID-19 pandemic, which in such cases has rightly been corrected and reset within more proportionate and lawful parameters.

II.B. Surveillance

Even where personal movement was not so restricted, it could be tracked and disseminated in a manner injurious to social cohesion. The Government of South Korea created a website displaying the movements of COVID-19 infected persons prior to their diagnosis. This was compiled from various sources including GPS phone tracking, credit card records, and video surveillance. 79 The website displayed sufficient information for infected persons to be identified. The National Human Rights Commission of Korea described the publication of personal movements as beyond that necessary for preventing the spread of infectious diseases. 80 It expressed concern about infected persons being ridiculed and disgraced on the Internet, noting a survey conducted in February 2020 by the School of Public Health, Seoul National University, which found that respondents feared being accused of being an infected person more than in fact being infected. 81 Evidence of detrimental social impact has indeed been reported; 82 this being avoidable had the government website not disseminated such excessive information. Stigmatization had already been identified as a negative factor affecting public crisis management; 83 thus, governments should take steps to counter, not facilitate, stigmatization.

In some states, the surveillance attempt was more explicit, as in Slovenia where the Intervention Measures Act to Curb the COVID-19 Epidemic and Mitigate Its Impact on Citizens and the Economy was enacted by the National Assembly, the Državni Zbor. Article 104 of the draft legislation purported to invest the police with powers to track telecommunication devices from mobile network operators without a court warrant. This was one of a range of draft provisions that were considered by various parties within and without the Državni Zbor to be too severe, and several of which were amended to reduce their severity. The draft Article 104 was, however, considered to be so excessive that it was deleted following the view of Zveza Potrošnikov Slovenije, the Information Commissioner of Slovenia and the Human Rights Ombudsman of the Republic of Slovenia that it undermined the right to privacy and freedom of communication, 84 which is protected by the Slovenian Constitution. 85

The importance of robust, transparent democratic deliberation is therefore emphasized as a backdrop to excessive and authoritarian reactions by governments to the COVID-19 outbreak. However, democratic governance during a pandemic must also account for the possibility of excessive and authoritarian reactions among populations: reactions that should not be promoted or implemented simply because they command popularity. In particular, populations may not identify or challenge governmental and administrative overreach in response to COVID-19, and may even will on more of it. For example, in the UK, there has been widespread ‘shaming’ of people who have been perceived to be violating the ‘rules’ on COVID-19, 86 which on many occasions have merely been unenforceable guidelines. The tendency to shame others in such circumstances has been argued to be borne of fear and not always to be altruistically motivated, 87 which underlines the need for governments to respond to public emergencies in a proportionate and measured manner. Yet, the Commissioner of the Metropolitan Police Service has even encouraged the shaming of shoppers who refused to wear masks in compliance with a requirement to do so, as an apparent substitute for police enforcement of the law, 88 fueling a culture of fear and inculpation.

Indeed, there can be popular support for authoritarian measures, with polling showing that 65 per cent of British adults would support government surveillance of mobile phone roaming data to track COVID-19 infected patients and their close contacts, and almost half of those surveyed supporting that surveillance to ascertain whether individuals are following social distancing and lockdown rules and to penalize those who do not follow them. 89 The latter purpose would be extremely difficult to enforce without also tracking whether and to what extent persons have a reasonable excuse for being outside their place of residence, and noting that the statutory enumeration of such excuses was non-exhaustive. It is all the more necessary that democracies have sufficient institutional protections in place, not only to deal with the authoritarian tendencies of governments in public emergencies but also with the psychological responses of populations, such as mass pathologization and loss of behavioral control. 90

II.C. Regression in Healthcare Ethics

An overlooked but consequential domain in which authoritarian governance has resulted in regression is healthcare ethics that, as a field of practice, heavily depends on the fundamental norms of constitutional democracy, especially respect for human dignity and the flourishing of individuals and groups, in order to thrive. 91 The erosion of democratic institutions protective of human rights and liberties will to varying degrees likely undermine widely accepted principles of medical ethics like autonomy, justice, beneficence, and non-maleficence. 92 Worrying tendencies have been seen in COVID-19 emergency measures, with dubious healthcare practices generating significant medical ethics controversies.

A medical clinic providing NHS services in Wales wrote to patients with illnesses such as incurable cancers, motor neurone disease, and untreatable heart and lung conditions to advise them to sign Do Not Attempt Cardiopulmonary Resuscitation (‘DNACPR’) forms. These are standard forms published by the Resuscitation Council (UK) that convey the patient’s wishes that they do not seek cardiopulmonary resuscitation in the event of cardiac or respiratory arrest. The letter was subsequently found not to be sent on the recommendation of the Cwm Taf Morgannwg University Health Board, the local public health authority, and was followed by an apology to the patients who received the letter. 93 Similarly, residential care homes in parts of England and Wales reportedly encouraged or pressured patients to sign DNACPR forms. 94

These events led to the issuance of a joint statement by the British Medical Association, the Care Provider Alliance, the Care Quality Commission, and the Royal College of General Practitioners describing it as ‘unacceptable for advance care plans, with or without [DNACPR] form completion to be applied to groups of people of any description’, adding that ‘[t]hese decisions must continue to be made on an individual basis according to need’. 95 The Resuscitation Council (UK) also made clear that ‘[i]t is important to have conversations with patients early, when they are well and are able to communicate what care and treatment they would want or not want to receive in an emergency situation’, adding that ‘[t]his is important in patients with COVID-19, especially those that have underlying comorbidities’. 96 Encouragement of vulnerable patients by public health actors to sign forms that may result in a suspension of efforts to maintain life is stark evidence of a departure from patient-centric medical care, and the adoption of excessive state paternalism that fails to respect patient autonomy. Efforts to persuade persons with incurable illnesses and elderly care home residents to sign DNACPR forms were seemingly borne of a desire not to overburden scarce healthcare resources and ‘unnecessarily’ endanger emergency first responders. However, given that courts are reluctant to scrutinize too closely resource allocation decisions in public healthcare, they would tend to apply a lower intensity of review, thus providing fewer opportunities to challenge decision-making in this field. 97

Most abhorrent and deplorable of all, notwithstanding standard NHS policy to allow only one immediate family member or carer to visit a patient in a hospital who is receiving end-of-life care, 98 hospitals and care facilities have been denying family members access to patients dying from COVID-19 and other terminal conditions in their final moments of life. 99 While decisions of this nature on the part of healthcare facilities may partly be due to the UK Government having failed to procure or make available sufficient personal protective equipment for health workers and visitors, 100 it represents a tyrannical and inhumane approach to medical ethics that is fundamentally degrading to both patient and family. A number of professional health bodies, including the Scottish Academy of Medical Royal Colleges, the Royal College of Physicians of Edinburgh, Marie Curie and Scottish Care, demanded, in that vein, equal access for families to visit dying COVID-19 patients in the spirit of humane, compassionate, and dignified treatment. 101 Though the Government signaled a change of course, 102 it is telling that such an intervention was even necessary. An authoritarian policy of containment of COVID-19 at all costs has resulted in heavily increased distress, reduced autonomy, and impaired dignity for dying patients and their family members in their hour of greatest need and vulnerability. Had a more deliberative and participative form of decision-making been adopted by the Government, it is less likely that such a draconian policy would have been pursued in the first place let alone implemented. It is worth noting that the denial or excessive restriction of access of family members to dying patients could be subject to a challenge under Article 8 of the ECHR, which guarantees the right to respect for private and family life, though it is clearly unreasonable to expect affected parties to have the financial, temporal, and psychological resources to litigate in such desperate circumstances. 103

A final dimension in which to consider healthcare ethics in the context of the authoritarian response to COVID-19 is corruption, which is both a cause and effect of authoritarianism. Corruption remains an underlying obstacle to equitable and consistent enforcement of legal restrictions, procurement of medical supplies, and access to healthcare. A European Commission study concluded that:

corruption in the health sector occurs in all EU [Member States]… Czech Republic, Latvia, Croatia, Slovakia, Romania, Italy, Bulgaria and Greece are considered [sic] having a widespread corruption problem and seem to encounter more bribery in medical service delivery, procurement corruption and misuse of (high) level positions. More specifically, bribery in medical service delivery occurs most frequently, and is considered systemic, in (former) transition economies of Central and Eastern Europe. 104

In the European context, corruption may also be worse in healthcare systems in non-EU countries such as Serbia. 105 It has been estimated that an average of 10–25 per cent of a public procurement contract’s value may be lost to corruption, 106 in addition to at least 50 per cent of medical equipment in developing countries being partly usable or totally unusable. 107 There are multiple opportunities for corruption and waste in the medical equipment procurement chain, 108 including the manipulation of specifications in favor of a supplier, bribery of procurement officials, and overpayment for products. 109 Though procurement mechanisms may be technically improved, enforcement remains an issue. 110 In addition, the nature of the COVID-19 pandemic also brings additional opportunities for corruption and waste. Excessive purchase of equipment such as facial masks, hand sanitizers, and ventilation machines is a real possibility given the rapidly evolving nature of the pandemic, as is the use of direct procurement instead of competitive procurement due to the urgency of demand for such equipment. 111 In the specific context of authoritarianism, the COVID-19 outbreak will doubtless prove lucrative not only to bona fide suppliers of medical equipment but also to corrupt officials, vendors, and brokers. The pandemic gives such networks an opportunity to further entrench their authoritarian objectives in weak democracies and semi-authoritarian states, and even the reliance of those systems on networks of this kind. It also has multifaceted negative implications for labor exploitation and modern slavery, 112 in addition to further regressions in healthcare ethics.

III. EXCESSIVE AND DISPROPORTIONATE EMERGENCY MEASURES

One of the hallmarks of authoritarian governance during the COVID-19 pandemic has been the adoption of excessive and disproportionate emergency measures. Often these measures have simply been unnecessary. The measures have, nevertheless, posed a grave danger to human rights and civil liberties and are seen not only in semi-authoritarian states or weak democracies but also in liberal democratic states.

At the more authoritarian end of the spectrum, the Parliament of Cambodia approved on April 10, 2020, the Law on Governing the Country in a State of Emergency. The Law provided, inter alia, for measures to surveil and keep track of all means of telecommunications, 113 prohibiting or restricting the distribution or broadcast of information that could generate alarm, fear, or unrest, or bring about damage to national security, or bring about confusion regarding the state of emergency 114 and putting in place other measures deemed appropriate and necessary for responding to the state of emergency. 115 A number of criminal offenses were created, such as obstructing operations during a state of emergency, and failure to respect measures, with sanctions of up to 10 years’ imprisonment. 116 Furthermore, the state of emergency was not time-limited and can be declared when the nation faces danger in order to defend national security, public order, citizens’ lives and health, property, and the environment. 117 These measures are clearly excessive and disproportionate, and the latter provision illustrates the tendency for emergency measures to persist for future repurposing. The legislation serves as a motif of Cambodia’s slide into authoritarianism. 118

Another example at the more authoritarian end of the spectrum is Bosnia and Herzegovina, where a multitude of misdeeds have been reported in the response to the COVID-19 pandemic. These have included the introduction of curfews on an indefinite basis, the publication on the Internet of names of people who had been instructed by authorities to self-isolate due to potential or confirmed infection, and the Minister of Security ordering the quarantining of migrant centers on the basis that migrants were ‘the greatest hotspot of the coronavirus in [Bosnia and Herzegovina]’ despite no confirmed infections of COVID-19 among migrants at that time. 119 Republika Srpska, within Bosnia and Herzegovina, enacted a regulation prohibiting the dissemination of false news or claims causing panic or disturbing public order or peace, punishable by substantial fines. 120 These measures are far beyond what would be necessary to contain and slow the spread of COVID-19, and in some cases bear little relation to that otherwise legitimate public health objective.

India, which has recently been determined as having declining democratic credentials, 121 adopted a number of excessive and disproportionate measures with a profoundly authoritarian tone. Notices were affixed to homes declaring that they were under quarantine, which reportedly resulted in social discord and psychological issues. 122 The State Government of Karnataka, likely acting in view of its powers under the Epidemic Diseases Act 1897, published the names and home addresses of thousands of people in home quarantine. The decision, which is patently disproportionate, was said by a senior official to be taken after many people had been ‘seen breaking government rules’. 123 Police in Karnataka were also reported to have sent persons who were found to be breaching home quarantine rules to a ‘government quarantine ward’ under the Indian Penal Code. 124 Even where the personal details of persons in home quarantine are not officially released, misuse of personal data remains possible, as where quarantined persons’ names, telephone numbers, and passport details were ‘leaked’ in Hyderabad. 125

Furthermore, the Election Commission of India authorized the use of indelible ink for the purpose of stamping persons in home quarantine due to COVID-19. 126 Nevertheless, the State Government of Maharashtra had already utilized its powers under the Epidemic Diseases Act 1897 to order officials to stamp the left hand of persons in home quarantine with indelible ink indicating that they were in home quarantine. 127 The stamp prominently displayed the term ‘proud to protect Mumbaikars’, 128 thus implicating the Maharashtra authorities in forcibly applying paternalist propaganda slogans to the bodies of persons, an unnecessary and decidedly authoritarian act. These measures illustrate that, despite the potential practical utility of wide-ranging powers invested in Indian authorities for the management of outbreaks of infectious disease, COVID-19 has resulted in an authoritarianization of the relationship between the government and the governed, with numerous examples of citizens being objectified in the name of combating COVID-19. The ability for India’s laws on public health emergencies to be utilized in such an authoritarian and degrading manner demonstrates that those laws are framed and enforced with insufficient protections in place. There is little evidence of the Indian judiciary being sympathetic to concerns about the dilution of rights during the COVID-19 outbreak, with several examples of judges declining to hear bail applications during the state of disaster, 129 in apparent violation of Article 21 of the Indian Constitution. The abuse of emergency powers in India is rendered all the more ominous by the experience of Indira Gandhi’s 21-month period of emergency rule in the mid-1970s. 130

The attempted adoption of excessive and disproportionate emergency measures can also occur in states framed by liberal democratic models of governance, though these can be checked by properly functioning democratic controls and the rule of law robustly upheld by an independent judiciary. In one example, the Scottish Government attempted to arrogate to itself the power to dispense with the requirement for more serious criminal cases to be heard with a sitting jury. It introduced an emergency Bill which, inter alia, provided that the Scottish Ministers may make regulations providing that trials on indictment are to be conducted by the court sitting without a jury. 131 Though it provided that such regulations may be made only if their making is ‘necessary and proportionate, in response to the effects coronavirus is having or is likely to have’, 132 and that the Scottish Ministers must before making such regulations consult the Lord Justice General and any other person they consider appropriate, 133 this would result in a major procedural safeguard being removed in serious criminal trials. It is also worth noting that although the bulk of the legislative provisions would expire on September 30, 2020, 134 provision was made for this date to be extended by the Scottish Ministers by regulation to March 31, 2021, and thereafter to September 30, 2021. 135 It is eminently possible that the purported dispensing with the jury requirement would have been the subject of a human rights challenge, particularly given that alternative and more proportionate arrangements could be made in view of the COVID-19 outbreak, such as the attendance of jurors by electronic video link. Indeed, provision was made for attendance at court by electronic means of persons who would otherwise be required to physically attend, including jurors. 136 The Scotland Act 1998 clearly excludes a provision from the legislative competence of the Scottish Parliament where that provision is incompatible with any Convention rights, 137 and the Advocate General, Lord Advocate, or Attorney General could have referred to the UK Supreme Court the question of whether the relevant provision of the Bill was within the legislative competence of the Scottish Parliament. 138 Alternatively, a person claiming to be a victim of such a Convention violation could have challenged the provision after the enactment of the Bill as an Act of the Scottish Parliament. 139

Liberal democracy on this occasion offered sufficient resilience and the Scottish Government yielded to widespread pressure to remove the attempt to dispense with the jury requirement, emphasizing the importance of broader systemic controls on government decision-making. The Coronavirus (Scotland) Act 2020 subsequently enacted did not include such a provision. It is worth noting that this was not the first time a drastic change to the Scottish criminal justice system was unsuccessfully proposed by the Scottish Government. Under the same political leadership, it introduced a Bill to the Scottish Parliament attempting, inter alia, to abolish the requirement for corroboration of evidence in criminal proceedings. 140 These provisions were removed from the Bill, subsequently enacted as the Criminal Justice (Scotland) Act 2016, following widespread concern in the legal community about the removal of what was considered to be an integral protection in the criminal justice system. 141

IV. SUSPENSION OF EFFECTIVE DEMOCRATIC CONTROL

Another hallmark of authoritarian governance during the COVID-19 pandemic has been the attempted or successful bypassing or suspension of effective democratic controls on government. This is even seen in more democratic states whose governments have resorted to a highly centralized model of decision-making, sometimes without engaging in properly deliberative and transparent decision-making. This not only weakens democratic institutions and a culture of participative democracy but also can result in a chaotic and inept regulatory response. 142 The UK Government has repeatedly justified its response to the pandemic on the basis that it is ‘following the science’. 143 Yet, there are three principal objections to this claim. First, it asserts a scientific consensus that simply does not exist, as the President of the Royal Society recently acknowledged. 144 Second, it questions to what extent the Government has sufficiently consulted and deliberated with experts in other relevant fields, such as economics, human rights, and psychology. Third, it seemingly aims to shift responsibility and accountability for pandemic decision-making from elected government officials to the innominate scientific community, a purported divestiture of democratic accountability and shift toward a technocratic model of governance.

In some states, the existing legal framework allowed highly centralized decision-making in a pandemic scenario and the essential bypassing or suspension of effective democratic controls on government. India is such an example. The Indian Government invoked the Disaster Management Act 2005 to declare COVID-19 to be a state of disaster for a period of 21 days with effect from March 25, 2020, 145 with lockdown extended several times until May 31, 2020. 146 While a proclamation of emergency could theoretically have been made under the Indian Constitution, its provisions envisage war, external aggression, and armed rebellion, rather than public health emergencies. 147 The Act allows the National Disaster Management Authority, comprising the Prime Minister of India and up to nine persons nominated by him, 148 to take broad measures including the laying down of policies on disaster management, the laying down of guidelines to be followed by government ministries and departments integrating measures for prevention of a disaster or mitigating the effects of a disaster in their development plans and projects, and to ‘take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary’. 149 The Central Government nevertheless retains broad powers in relation to disaster management, with the power to take ‘all such measures as it deems necessary or expedient for the purpose of disaster management’, 150 including the coordination of actions of government ministries, departments, state governments, the National Disaster Management Authority, state authorities, governmental and non-governmental organizations, 151 ensuring an effective response to a disaster situation, 152 deployment of armed forces or civilian personnel, 153 and ‘such other matters as it deems necessary or expedient for the purpose of securing effective implementation of the provisions of this Act’. 154

While rules made by the Central Government under the Act are subject to modification or annulment by Parliament, this requires the agreement of both Houses of Parliament, and such rules, in any event, would not seem to include any other measures taken by the Central Government. 155 Parliament also has no equivalent oversight over the actions of the National Disaster Management Authority, which results in a highly concentrated command structure in disaster scenarios. Moreover, criminal offenses are broadly framed with, inter alia, any person who refuses to comply with any direction given by or on behalf of the Central Government, the State Government, or a District Authority being liable to imprisonment for up to one year plus a fine. If said refusal ‘results in loss of lives or imminent danger thereof’, of which refusal to comply could easily be construed in the context of the COVID-19 outbreak, then the person may be imprisoned for up to two years. 156 Among the comprehensive ‘guidelines’ issued by the Central Government on March 24, 2020, were directions that all passenger transport services, including air, rail, and road transport, be suspended. 157 This in itself was an excessive measure, resulting in the stranding in India of thousands of foreign travelers. However, the most dramatic step taken was the issuance of ‘stay at home’ orders for all 1.3 billion residents of India, 158 doubtlessly the largest single lockdown in human history.

Importantly, the Disaster Management Act allows the Indian Government to effectively rule by decree, without parliamentary involvement. In addition, State Governments may also rule by decree under the colonial Epidemic Diseases Act 1897, which was enacted to help contain the bubonic plague in Bombay. State Governments may, if satisfied that all or part of the state is visited or threatened by a dangerous epidemic disease:

take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed. 159

While there are clear operational advantages to such a populous and impoverished country as India having wide-ranging powers at the disposal of Central and State Government under the centralized command of the National Disaster Management Authority in the fight against COVID-19, the invocation of the Disaster Management Act 2005 and the Epidemic Diseases Act 1897 allows central and regional governments to rule by diktat. This allows for a wide variation in regulation and enforcement across India, in addition to a want of democratic accountability during the state of disaster or epidemic. Moreover, powers can be exercised by Magistrates under the Code of Criminal Procedure to order persons to refrain from specified acts, which may include leaving one’s place of residence, if the Magistrate considers that such a direction ‘is likely to prevent, or tends to prevent… danger to human life, health or safety’. 160 There is also a provision in the Indian Penal Code for a person who negligently does any act that is ‘likely to spread the infection of any disease dangerous to life’ to be punishable by up to six months’ imprisonment and/or a fine, 161 or, if such act is performed ‘malignantly’, up to two years’ imprisonment and/or a fine. 162 It is additionally provided that a person who disobeys a quarantine rule may be liable to up to six months’ imprisonment and/or a fine. 163 These also allow for wide-ranging regulation and enforcement practices across India, with little manner of supervision or control.

In other states, governments sought to suppress democracy during—and perhaps beyond—the pandemic. Eastern Europe—not long relieved of Eastern Bloc traditions of authoritarianism 164—has witnessed varying regressions in advancements to democratic governance in the name of the fight against COVID-19. In some states, the pandemic has served as a catalyst for authoritarianization, in others an acceleration of an extant turn to authoritarian governance. 165

One of the most draconian introductions of emergency powers in Europe was the enactment in Hungary of the Act on the Containment of Coronavirus. 166 This was enacted by the Hungarian National Assembly, the Országgyűlés, despite widespread international condemnation. The Act allowed the Hungarian Government to suspend the enforcement of existing laws, depart from statutory requirements, and implement additional extraordinary measures by decree. 167 Although it was provided that this power may only be exercised when necessary and proportionate to the objective of preventing, managing, and eliminating the epidemic, and for preventing and mitigating its harmful effects, 168 there was no sunset clause in relation to this provision. This may allow the Government to take swift and extraordinary action in the face of the COVID-19 outbreak in Hungary, but it removes this aspect of governmental action from effective parliamentary control. The Act would indeed have had to be amended or repealed by the National Assembly in order for this provision to be time-limited or otherwise deemed finite, though the Act itself provided that the decision on the expiry/repeal of the Act shall be made by the National Assembly at the end of the emergency, 169 which had no fixed end date. It was further provided that elections or referenda shall not be held during the indefinite state of emergency in Hungary. 170 The spreading of false or distorted claims about the COVID-19 outbreak was also made an offense punishable by up to five years’ imprisonment. 171 These legislative measures are neither necessary nor proportionate, marking an authoritarian turn in Hungarian governance, and were met with concern and condemnation from a number of international actors including the UN High Commissioner for Human Rights, 172 the Secretary General of the Council of Europe, 173 and the Director of the OSCE Office for Democratic Institutions and Human Rights. 174 Although the state of emergency was lifted on June 18, 2020, 175 the Országgyűlés simultaneously enacted the Act on Transitional Arrangements and Epidemiological Preparedness for the Cessation of an Emergency, 176 which allows the Hungarian Government to rule by decree for six-month periods from the declaration of a state of emergency, renewable indefinitely. 177

A less extreme example is found in Slovenia, where Article 110 of the draft Intervention Measures Act to Curb the COVID-19 Epidemic and Mitigate Its Impact on Citizens and the Economy sought to restrict the possibility of calling referenda on certain categories of law, despite the fact that there was already sufficient provision for this issue in the Slovenian Constitution. 178 The draft article was deleted on the basis of constitutional concerns. 179 While the legislature has served as an instrument of further authoritarianization in Hungary, in Slovenia, it operated as a check on authoritarian governance. 180 This suggests that Slovenian democracy is in a healthier condition than its Hungarian counterpart, 181 highlighting the egregiousness of the Hungarian example and underlining the need for robust democratic institutions in the response to public health emergencies. Nevertheless, it demonstrates another attempt to suppress democratic participation during the COVID-19 pandemic.

In Hong Kong, the four-yearly Legislative Council elections due to be held in September 2020 were postponed for a whole year in the name of public health risks posed by the COVID-19 pandemic. 182 The Government of the Hong Kong Special Administrative Region cited the finding of the Sweden-based International Institute for Democracy and Electoral Assistance that, between February 21, 2020, and July 26, 2020, at least 68 countries and territories had decided to postpone elections due to COVID-19. 183 However, this drastic intervention came in the throes of a rapid period of authoritarianization in Hong Kong unleashed by the attempted passage of a controversial extradition bill that was perceived to undermine critical safeguards in the criminal justice system. In this context, public health emergency regulations have from time to time been enforced on high-profile occasions by riot police during the COVID-19 outbreak: on one such occasion, in July 2020, the Hong Kong Journalists Association had cause to condemn riot police for allegedly abusing public health powers 184 when officers fined at least 17 student reporters for gathering during a protest to commemorate the anniversary of a mob attack in Yuen Long. 185 Among others fined on the scene were three Democratic Party legislators. 186 In addition to concerns about their manner of implementation, it should be noted that the emergency regulations were made by the executive branch and therefore did not proceed through the regular primary legislative process where democratic scrutiny is maximized. 187

Democracy can be suppressed not only in the postponement and cancellation of elections and referenda, but in censorship and the stifling of a free media. The Government of Serbia is one of a number of examples of governments that have attempted to control the flow of information and news about COVID-19 in their respective states. It was prescribed by a decree of the Prime Minister that healthcare facilities and local authorities must direct all COVID-19 information to the ‘COVID-19 Crisis Staff’ headed by the Prime Minister. The circulation of COVID-19 information to the public by unauthorized persons would attract legal consequences for disseminating misinformation in a time of emergency. 188 Following promulgation of the decree, a Serbian journalist was arrested after a hospital complained to the police following the publication of her article that reported that the hospital was ill equipped to deal with COVID-19. Though the Prime Minister later revoked the decree at the request of the Serbian President, it was reported that charges on the revoked decree had not been dropped against the journalist, potentially punishable by up to five years’ imprisonment under the Serbian Criminal Code. 189 Elsewhere, governments suspended the printing and distribution of newspapers as a purported antivirus measure, as in Iran, Jordan, Morocco, Oman, and Yemen. 190

The tendency to manipulate information and stifle avenues of dissent is characteristic of authoritarian and semi-authoritarian governments seeking to convince populations of their competence. 191 The Economist Intelligence Unit’s 2019 Democracy Index categorized a number of former Eastern Bloc countries as either ‘flawed democracies’ or ‘hybrid regimes’, 192 in other words weak democracies and semi-authoritarian states. While their adoption of excessive measures may accord with their democratically deficient status, it is alarming that the COVID-19 pandemic, which requires governments to make constructive public health interventions, should act as a medium through which further authoritarian control is exerted. The insistence on a centralized control of the COVID-19 narrative, and the adoption of a disciplinarian approach to enforcement of viral control measures, are themselves generators of fear and increased reliance on, and deference toward, the emphatic authority of the state. Moreover, as later discussed, though such measures are enacted in the context of the COVID-19 pandemic, they are likely to be retained for or resurrected in future public emergencies. 193

There are two other contexts in which the crucial role of free and independent media scrutiny, and broader public scrutiny, during a pandemic is emphasized. The first is in securing proper political accountability and observance of the rule of law, not least for the better advancement of measures to contain and slow the spread of COVID-19. An example of pivotal media scrutiny in this context was seen in Scotland, where the Chief Medical Officer for Scotland was discovered to have taken at least two trips to her second home while simultaneously being the face of a public campaign to ‘stay home’ and ‘save lives’. Not only was the Chief Medical Officer for Scotland potentially in criminal violation of the legal restrictions on personal movement, 194 not to mention guilty of rank hypocrisy, but she had also acted in a manner injurious to public trust in government COVID-19 containment messaging. In particular, a senior government official failing to follow her own public health advice and (potentially) violating COVID-19 related legal restrictions made it likely that fewer people would trust and comply with government COVID-19 instructions. 195 Following an initial attempt by the First Minister to keep the Chief Medical Officer for Scotland in post, she capitulated to the public outcry over the incident and required the Chief Medical Officer for Scotland to resign. 196

Similar events occurred elsewhere. Neil Ferguson, a professor of epidemiology and influential advisor to the UK Government on COVID-19 policy, resigned from his advisory role after reports that he allowed a married woman to visit his home contrary to government COVID-19 containment messaging. 197 In New Zealand, the Minister for Health was found to have driven his family 20 kilometers to a beach in violation of legal restrictions on personal movement, to which the Prime Minister resolved to take action. 198 The President of South Africa, Cyril Ramaphosa, made contact and posed for photographs with members of the public despite government advice to avoid direct contact and maintain a distance of at least two meters from other persons. 199 The President of Mexico, Andrés Manuel López Obrador, defended his shaking the hand of the elderly mother of the imprisoned drug trafficker ‘El Chapo’, in contravention of his own government’s advice not to engage in physical contact during the pandemic, on the basis that it would have been ‘disrespectful’ not to shake her hand and that he was ‘not a robot’. 200 The rule of law demands, however, that government officials comply with all laws and relevant guidance, particularly in the seriousness of a pandemic scenario. Independent media scrutiny allowed for these events to be reported, for accountability to follow and in some cases for dismissal from post.

At the other end of the spectrum, a total absence of free and independent media scrutiny can be seen to have profound implications for COVID-19 containment, not only in the states concerned, but on a global scale. Turkmenistan continued, as of early August 2020, to report no cases of COVID-19 within its territory. With the country having the lowest rating worldwide in Reporters Without Borders’ 2019 World Press Freedom Index, 201 it is extremely difficult to independently verify the local situation. However, the officially reported figures have been deemed implausible not least because Turkmenistan has claimed to have no people living with Human Immunodeficiency Virus (‘HIV’) or Acquired Immune Deficiency Syndrome (‘AIDS’) over the past decade, in addition to reports of suppressed evidence of previous outbreaks. 202 A highly authoritarian approach to the (probable) concealment of a local COVID-19 outbreak is of global concern, as ‘global health is only as strong as its weakest link’. 203 The ability for infections to spread from states in which COVID-19 is concealed or denied undermines containment efforts elsewhere and has the likely effect of prolonging the persistence of containment measures, including excessive measures, in other states. The same principle applies to other authoritarian states that have reported no cases of COVID-19, such as North Korea, which has the second-lowest rating in the 2019 World Press Freedom Index. 204 In a state where citizens can be ‘sent to a concentration camp for viewing, reading or listening to content provided by a media outlet based outside the country’, 205 and where just one centralized news agency is in existence, it is again extremely difficult to verify the presence or spread of COVID-19 in North Korea. Nevertheless, in view of its land border with China and a significant labor force working outside the country, it is implausible that North Korea would have no cases of infection.

Finally, it should be noted that even where effective democratic controls are not suppressed, they may be bypassed. In just a few months, the UK Government enacted 91 pieces of COVID-19-related delegated legislation subject to the negative procedure, 206 whereby the delegated legislation becomes law at the point of enactment but can be later annulled by either House of Parliament, a procedure that has not been successfully used since 1979. 207 While this form of enacting delegated legislation is ex ante approved by Parliament, it evades rigorous parliamentary scrutiny at the point of enactment, even though the delegated legislation has included the major restrictions on personal movement already discussed, with their far-reaching implications for civil liberties and fundamental freedoms. There may be a need to enact emergency measures, such as by way of delegated legislation, as the exigencies of the pandemic unfold, but these should be as limited as possible in number and scope and be followed by more rigorous parliamentary scrutiny through regular legislative channels where appropriate. In this way, measures taken in response to the pandemic, or any public emergency, will strike a more sustainable balance between the practical requirement for an urgent regulatory response and the preservation of deliberative, transparent, and democratic decision-making. 208

V. THE IMPENDING AUTHORITARIAN PANDEMIC

The widespread uses and abuses of emergency powers during the COVID-19 pandemic documented in this Article have coincided with the global retreat of democracy. The Economist Intelligence Unit’s 2019 Democracy Index, which was released in January 2020 during the outbreak in Hubei, China, recorded the worst global democracy score (5.44 out of 10) since its launch in 2006. 209 The COVID-19 pandemic has inflicted widespread human suffering, primarily in the guise of health and economic damage, but authoritarian governance and human rights curtailment are a gratuitous toll to exact on populations, particularly when cases of COVID-19 seem to resurge once restrictions are eased, 210 even where, as in Mainland China, lockdowns are carried to extremity.

It is a matter of grave international controversy that Mainland China’s authoritarian approach to virus containment—which has reportedly ranged from censorship 211 and setting up informant hotlines, 212 to isolating people from their families 213 and welding people within their own homes 214—has been effectively lauded by the WHO’s Director-General. 215 Nor has the WHO delivered any meaningful recommendation, consistent with international human rights law, about ‘whether, when, and how’ member states should implement or lift Wuhan-inspired ‘all-out’ containment measures. 216 The WHO, obligated by its Constitution to respect the ‘fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’, 217 should never condone authoritarian approaches to viral containment, not only because of the deleterious effects that this can have on democracy, civil liberties, and fundamental freedoms—contrary to the aim of the UN Charter in ‘promoting and encouraging respect for human rights and for fundamental freedoms’ 218—but also because it is not necessarily effective in combatting the spread of a highly contagious infectious disease like COVID-19. 219 Moreover, the Organization’s own International Health Regulations demand ‘full respect for the dignity, human rights and fundamental freedoms of persons’. 220

It must not be forgotten that authoritarian information politics neutered an early provincial response to COVID-19 in China, 221 which could have downsized the ensuing global crisis. The Wuhan local authorities’ suppression of the freedoms of speech and information before and after the death, from COVID-19, of whistleblower ophthalmologist Dr Li Wenliang on February 7, 2020, may have the effect of escalating fear and inciting people to acquire information from unreliable sources. 222 Centralized, even personalist, authoritarian regimes may have an advantage in mobilizing the masses, but they tend to be ineffective in preventing the spread of infectious diseases from proliferating at the earliest stage, which is feasible only with an open and competitive political climate that empowers journalists, civil society, and government insiders to blow the whistle on public health scandals with little fear of retaliation or even assassination. 223

Technology offers, in the face of a pandemic, both hopes of salvation and a harbinger of dystopia. On the one hand, technological advances, particularly in the field of medicine, present great opportunities for preventing and controlling the spread of, and treating incidences of, infectious disease. However, technological responses to the outbreak of an infectious disease can also invoke an Orwellian sense of totalitarianism that, in relation to COVID-19, is spreading as a pandemic in its own right. Drones have been used to issue public health instructions to individuals and enforce lockdown restrictions in a number of countries including France, 224 Spain, 225 Malaysia, 226 and Mainland China. 227 Police robots have been deployed to enforce lockdown restrictions in Tunisia. 228 Facial recognition cameras have been used to police quarantine and self-isolation compliance in Russia, 229 while quarantine compliance has been enforced through the compulsory wearing of electronic wristbands in Hong Kong, 230 where all asymptomatic inbound air travelers have been required to give deep throat saliva samples prior to mandatory quarantine. 231 Mobile phone location monitoring has been implemented in a number of countries including Austria, 232 Germany, 233 Pakistan, 234 and South Africa, 235 while mobile phone app location monitoring has been used in Singapore. 236 These measures are in addition to freedom of information restrictions in countries such as Hungary, 237 Serbia, 238 and the Philippines. 239 While some may argue that these measures assist virus containment and control efforts, there are residual risks associated with misuse or mishandling of personal data, and the possibility of zero or only partial rollback of surveillance measures after the COVID-19 emergency has passed. The perdurance of surveillance measures—and a culture of surveillance—was exemplified by the national responses to the September 11, 2001, attacks in the USA. 240 Justifications offered for, or propensity toward, retaining control measures of this nature are amplified by their potential for repurposing and the probability of future pandemics, health emergencies caused by antimicrobial resistance, and environmental and ecological disasters associated with pollution and climate change.

Moreover, many of these measures are fundamentally dehumanizing, denying human autonomy, dignity, and individuality in the name of a presumed ‘greater good’, ‘communal need’, or ‘national interest’. They are emblematic of a paternalist totalitarianism in which the individual is a chattel of the state and objectified for their own good. The potential for a camera-carrying drone to appear overhead, the requirement to produce documentation to justify one’s being in a public place, and for movements to be monitored and publicized on the Internet—to merely take some examples from democracies—create a panopticon that fundamentally alters behavior and attitudes to authority. Individuals are alienated from public spaces that are transposed from the public domain to the government domain. Enforcement officials are transformed from being public servants to being government servants. The inherent paradox of state paternalism is a widening of the gap between the government and the governed, with the drones, facial recognition cameras, electronic wristbands, movement surveillance, and censorship conveying the emphatic and irrefutable authority of the state, with insufficient regard for whether these measures are scientifically effective, democratically endorsed, or morally defensible. COVID-19 is first and foremost a pathological disease, but it is also a plague on liberal democracy, human rights, and good governance.

There is evidence that a link exists between the prevalence of infectious diseases in the local ecology and an authoritarian system of governance. 241 It may be that viral outbreaks may be an overlooked but significant factor in accentuating authoritarian tendencies in democracies and consolidating authoritarian rule in the so-called hybrid, semi-authoritarian regimes, and closed autocracies. Authoritarian leaders, unlike their democratic counterparts, tend to be much more difficult to remove from office for their policy blunders and failures to protect public health. 242 They and their supporting elite bases are likely to enjoy private healthcare resources to prevent premature mortality. 243 As autocrats have considerably less incentive to compete for the popular vote than democrats, or even no such incentive, they too have little incentive to disseminate health benefits universally across the country; in fact, it is arguable that autocrats and would-be-autocrats are constantly tempted to suppress human development, for enhanced health security could enable the masses to make greater demands or even advocate for increased political participation in public affairs. 244 Public health requires the involvement of the populace in tackling health problems; yet, such involvement cannot be meaningful without the freedoms of association and speech. 245 If governments are unwilling to properly discharge their duty to fulfill basic health needs, then they will have stultified democracy-enabling rights like the rights to vote and to stand for election of a sizeable proportion of their populations. 246 This, in turn, will reinforce authoritarianism, as is currently the case amid the COVID-19 pandemic, during which incumbent rulers weaken institutions of accountability, assault press freedoms, and weaponize technologies in ways that the global community cannot afford to ignore. 247

VI. CONCLUSION

The central dilemma in public health law and ethics is that any legal intervention to safeguard population health will inevitably be caught in a tug of war between collective interests and individual rights to bodily integrity, privacy, freedom of association, freedom of movement, freedom of conscience, and other core liberties. 248 This dilemma is most clearly manifest in the implementation by officials of liberty-limiting measures such as quarantine and travel restrictions during a public health emergency amid an outbreak of infectious disease, 249 as in the present COVID-19 pandemic, which has thus far emerged as the greatest global health emergency of the 21st century with almost 20 million confirmed infections and over 730,000 deaths worldwide a mere half year into the outbreak, numbers that were rising exponentially at the time of writing. Under such exceptional circumstances, governments can harness authority that is normally unavailable in the absence of explicit, ongoing, legislative approval, once a legal or de facto state of public health emergency is declared. 250 Sometimes, restraints on government power anchored in individual rights are overridden or relaxed in light of the exigent situation. 251 The culture of fear engendered by alarmist pandemic measures and narratives nevertheless secures high levels of obedience among populations, even in otherwise liberal democratic states.

However, the exercise of emergency powers outside the ordinary structures of checks and balances can be justified only if the relevant harm cannot be defused by way of ordinary procedures. 252 The use of extreme public health emergency measures to combat pandemics underscores an ethical tension between individual interests and the perceived collective good, the resolution of which requires demonstration that restrictions on individual rights and freedoms are necessary and proportionate to the attainment of stated public health objectives. 253 The creation and invocation of emergency powers can set a perilous example for future public health emergencies, with instances of ‘temporary’ emergency measures in place for unjustifiably long periods being found throughout world history. 254

As this Article has demonstrated, a transnational constitutional pandemic is coming of age: regressions in the thinking of public health authorities to one of containment of COVID-19 at all costs, including its prioritization over matters that impinge on healthcare ethics and human dignity, are effectuating the imposition of disproportionate, uncompromising emergency responses. These same responses are becoming, or on the verge of becoming, a catalyst or agent for a renewed authoritarianization in both democracies and non-democracies—a constitutional pandemic of devastating magnitude in its own right. An unwarranted authoritarian erosion of civil liberties in the name of protecting public health is counter-productive and self-defeating, as it could trigger an overall decline in public health in the long run, and must not be added to the enormous social and economic costs already incurred, as yet with no end in sight. COVID-19 containment measures, like all public health emergency interventions, must always be based on ongoing scientific risk assessments, a commitment on the part of the state to provide its citizens with tolerably safe environments, rigorous enforcement of due process and procedural justice, and implementation of emergency measures that are the least restrictive to constitutionally enshrined rights and liberties. 255 An authoritarian response to a biomedical pandemic is not, and never will be, a humanitarian solution.

Footnotes

1

S. Sanche et al., High Contagiousness and Rapid Spread of Severe Acute Respiratory Syndrome Coronavirus 2 26(7) Emerging Infectious Diseases (July 2020).

4

See The Lancet, COVID-19: Protecting Health-Care Workers, vol 395 (10228) The Lancet P922 (2020).

5

See K. Bozorgmehr, V. Saint, A. Kaasch et al., COVID and the Convergence of Three Crises in Europe, The Lancet Public Health 2020 May;5(5):e247–e248.

6

See W. McKibbin and R. Fernando, The Economic Impact of COVID-19 in R. Baldwin and B. Weder di Mauro (eds), Economics in the Time of COVID-19 (London: CEPR Press, 2020) 45–51.

7

See T. Colbourn, COVID-19: Extending or Relaxing Distancing Control Measures, The Lancet Public Health 2020 May;5(5):e236–e237.

9

L.M. Henry, An Overview of Public Health Ethics in Emergency Preparedness and Response in A.C. Mastrolianni, J.P. Kahn and N.E. Kass (eds), The Oxford Handbook of Public Health Ethics (New York: Oxford University Press 2019) 767–773, 770.

10

International Covenant on Civil and Political Rights, G.A. Res. 2200 A (XXI), U.N. GAOR, 21st session, Supp. No. 16, U.N. Document A/6316 (1966), Art. 4.

11

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221, entered into force Sept. 3, 1953, Art. 15.

12

American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 U.N.T.S. 123, entered into force July 18, 1978, Art. 27.

13

Arab Charter on Human Rights, 15 September 1994, Art. 4. There are no derogation provisions for public emergencies in the International Covenant on Economic, Social, and Cultural Rights, or the Convention on the Rights of the Child. The UN Human Rights Committee has stated that Article 38 of the Convention on the Rights of the Child ‘clearly indicates’ that ‘the Convention is applicable in emergency situations’—Office of the High Commissioner for Human Rights, CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, adopted July 24, 2001, n.5. However, there are limitation provisions in both treaties.

14

L.M. Henry, An Overview of Public Health Ethics in Emergency Preparedness and Response in A.C. Mastrolianni, J.P. Kahn and N.E. Kass (eds), The Oxford Handbook of Public Health Ethics (New York, Oxford University Press 2019) 767–773, 770.

15

As, for example, provided by ICCPR, Art. 4(2).

16

UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4 (Sept. 28, 1984), Principle 51.

19

M. Smith and R. Upshur, Pandemic Disease, Public Health, and Ethics in A.C. Mastrolianni, J.P. Kahn and N.E. Kass (eds), The Oxford Handbook of Public Health Ethics (New York: Oxford University Press 2019) 797–811, 798.

21

E. Frantz, Authoritarianism: What Everyone Needs to Know (New York: Oxford University Press 2018) 94.

22

D. Dyzenhaus, Legal Theory in the Collapse of the Weimar: Contemporary Lessons? (1997) 91(1) American Political Science Review 121.

23

A.S. Klieman, Indira’s India: Democracy and Crisis Government (1981) 96(2) Political Science Quarterly 241.

24

C.M. Fombad, Cameroon’s Emergency Powers: A Recipe for (Un)Constitutional Dictatorship? (2004) 48(1) Journal of African Law 62.

25

H.P. Lee, Constitutionalised emergency powers: a plague on Asian constitutionalism? in V.V. Ramraj and A.K. Thiruvengadam, Emergency Powers in Asia: Exploring the Limits of Legality (New York: Cambridge University Press 2010), 394–395.

26

K. Kupferschmidt, The Lockdowns Worked—But What Comes Next? (2020) Science vol 368 issue 6488 218, 218.

29

V.V. Ramraj and M. Guruswamy, Emergency Powers in M. Tushnet, T. Fleiner and C. Saunders (eds), Routledge Handbook of Constitutional Law (New York: Routledge 2013) 85–96, 85.

30

See J. Pierre Nudges Against Pandemics: Sweden’s COVID-19 Containment Strategy in Perspective (2020) 39(3) Policy and Society 478.

31

It does, however, remain to be seen whether Sweden will have a markedly different COVID-19 death rate from that of other states in the long run—see J. Giesecke, The Invisible Pandemic (2020) 395 The Lancet e98.

33

M. Koopmans, Sandbags for Disease X (2020) 180 Cell 1034.

35

Nuclear Threat Initiative, Johns Hopkins Center for Health Security and The Economist Intelligence Unit, Global Health Security Index 2019 (https://www.ghsindex.org/).

41

Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350), regs. 4 and 5.

63

On family members visiting dying patients in hospital, see further below at 13–14.

64

Décret n° 2020–293 du 23 mars 2020 prescrivant les mesures générales nécessaires pour faire face à l’épidémie de covid-19 dans le cadre de l’état d’urgence sanitaire (as amended), Art. 3.

68

Décret n° 2020-357 du 28 mars 2020 relatif à la forfaitisation de la contravention de la 5e classe réprimant la violation des mesures édictées en cas de menace sanitaire grave et de déclaration de l’état d’urgence sanitaire; Code de la santé publique, Art. L3136-1.

71

Décret n° 2020-293 du 23 mars 2020 prescrivant les mesures générales nécessaires pour faire face à l’épidémie de covid-19 dans le cadre de l’état d’urgence sanitaire, Art. 3(III).

72

Arrêté préfectoral n°PREF/CAB/BSI/2020081–001 du 21 mars 2020 portant restrictions à la liberté de circulation et à la liberté d’aller et venir sur la commune de Perpignan.

73

Arrêté N°2020-195 portant restrictions a la liberté de circulation et a la liberte d’aller et de venir sur le département des Alpes-Maritimes (Mar. 22, 2020).

74

Arrêté N°2020-00280 du 7 avril 2020 portant mesure de restriction des déplacements liés aux activités physiques individuelles des personnes en vue de prévenir la propagation du virus covid-19.

76

Oberverwaltungsgericht Mecklenburg-Vorpommern, 2 KM 281/20 OVG (Apr. 9, 2020).

77

Oberverwaltungsgericht Nordrhein-Westfalen, 13 B 940/20.NE (July 6, 2020).

84

Državni Zbor, 1095-VIII Amandma (K 104. členu) 31.03.2020.

85

Constitution of the Republic of Slovenia, Art. 37.

90

See J. Drury, D. Novelli and C. Stott, Representing Crowd Behaviour in Emergency Planning Guidance: ‘Mass Panic’ or Collective Resilience? (2013) 1(1) International Policies, Practices and Discourses 18.

91

M.Z. Solomon and B. Jennings, Bioethics and Populism: How Should Our Field Respond? (2017) 47(2) The Hastings Center Report 11, 12.

92

See R. Gillon, Ethics Needs Principles—Four Can Encompass the Rest—and Respect for Autonomy Should Be “First Among Equals” (2003) 29 Journal of Medical Ethics 307–312.

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104

European Commission, Study on Corruption in the Healthcare Sector (HOME/2011/ISEC/PR/047-A2) (Oct. 2013) 9.

105

E. Holt, Slovak Bribery Case Sparks Wider Debate in Eastern Europe vol 385, issue 9984, The Lancet, P2242 (2015).

107

World Health Organization, The World Health Report—Health Systems Financing: the Path to Universal Coverage (2010), 66.

111

Note, in the context of the discussion on Hungary (below at 22–23) that, in the first four months of 2020, the corruption risk in Hungarian public procurement reached its highest level since 2005 and that, by Apr. 30, 2020, the share of contracts without competition was 41 per cent—Corruption Research Center Budapest, New Trends in Corruption Risk and Intensity of Competition in the Hungarian Public Procurement from January 2005 to April 2020 (May 2020) (http://www.crcb.eu/wp-content/uploads/2020/05/2020_hpp_0520_flash_report_1_200526_.pdf) 9.

113

Law on Governing the Country in a State of Emergency, Art.5(10).

114

Ibid, Art.5(10) and (11).

118

See L. Morgenbesser, Cambodia’s Transition to Hegemonic Authoritarianism (2019) 30(1) Journal of Democracy 158.

120

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130

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131

Coronavirus (Scotland) Bill (SP Bill 66) (as introduced), Sch. 4, para. 11(1); introduced Mar. 31, 2020.

132

Ibid, Sch. 4, para. 11(2).

133

Ibid, Sch. 4, para. 11(3).

134

Coronavirus (Scotland) Act 2020, s.12(1).

136

Coronavirus (Scotland) Bill (SP Bill 66) (as introduced), Sch. 4, para.3.

137

Scotland Act 1998, s.29(2)(d). ‘Convention rights’ is provided by the Scotland Act 1998, s.126(1) to have the same meaning as in the Human Rights Act 1998, wherein it is defined in s.1(1).

138

Scotland Act 1998, s.33(1).

140

Criminal Justice (Scotland) Bill (SP Bill 35) (as introduced), ss.57-61; introduced June 20, 2013.

142

In one example, the Scottish Government granted an exemption from 14-day quarantine for arrivals from Spain, only to revoke the exemption a mere three days later at significant cost to travelers and the travel industry—Health Protection (Coronavirus) (International Travel) (Scotland) Amendment (No. 4) Regulations 2020; Health Protection (Coronavirus) (International Travel) (Scotland) Amendment (No. 5) Regulations 2020.

145

Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A) (Mar. 24, 2020).

146

Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A) (May 17, 2020). Lockdown measures were thereafter subject to varying degrees of relaxation in different parts of India.

147

Constitution of India, Art. 352.

148

Disaster Management Act 2005, s.3(2).

157

Government of India, Guidelines on the measures to be taken by Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19 Epidemic in the Country, Annexure to Ministry of Home Affairs Order No. 40–3/2020-D (Mar. 24, 2020), r.6.

159

Epidemic Diseases Act 1897, s.2(1).

160

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161

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164

J.J. Linz and A. Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Johns Hopkins University Press, 1996) 293.

165

See D. Bochsler and A. Juon, Authoritarian Footprints in Central and Eastern Europe (2020) 36(2) East European Politics 167.

166

2020. évi XII. törvény a koronavírus elleni védekezésről.

174

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175

2020. évi LVII. törvény a veszélyhelyzet megszüntetéséről.

176

2020. évi LVIII. törvény a veszélyhelyzet megszűnésével összefüggő átmeneti szabályokról és a járványügyi készültségről.

178

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179

Državni Zbor, 1095-VIII Amandma (K 110. členu) 01.04.2020.

184

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188

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191

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194

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216

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217

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218

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219

See J. Giesecke, The Invisible Pandemic (2020) 395 The Lancet e98. Consider, in that regard, Article 1 of the Constitution of the WHO that declares that the objective of the WHO ‘shall be the attainment by all peoples of the highest possible level of health’.

220

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221

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253

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Author notes

Stephen Thomson is an Associate Professor, School of Law, City University of Hong Kong. We are grateful to the anonymous reviewers for their thoughtful and constructive comments. Any errors, and the views expressed, remain our own. All URLs were, unless stated otherwise, last accessed on August 8, 2020.

Eric C. Ip is an Associate Professor, Centre for Medical Ethics and Law, University of Hong Kong.

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