Nood breekt wet in besmette tijden: de rechtsstatelijkheid van de pandemiepolitie en pandemiewetgeving

The COVID crisis was tackled in Belgium with an emergency procedure of ministerial decrees, relying on the 2007 Civil Security Law, a law that is actually intended to allow for quick and temporary intervention in case of disasters such as large explosions or fires. Despite the Council of State’ findings (“this law allows curfews”), this law is both inappropriate and dangerous: without parliamentary debate, it allows far-reaching restrictions on fundamental rights for long periods of time. In the Netherlands, too, the curfew was socially and legally controversial. There, too, there were calls for new legislation on lockdown and other police measures in the event of health crises. The discussions in Belgium and the Netherlands are therefore similar, although the Dutch Constitution and legislation is clearer, (but not enough) with regard to the possibility of declaring a state of emergency and combating infections on a large scale. Obviously, it makes sense, from a concern for the rule of law, to rewrite the Constitution and legislation. New safeguards for new, far-reaching infectious disease control measures for the unhealthy and healthy part of the population .... Who can be against that? This contribution is cautious about the usefulness of exemption legislation. Looking at the health crisis, and older crises such as the 9/11 crisis (terrorism), we pay attention to processes of power accumulation of the government, and the executive in particular, made visible by such a crisis, but made possible by inconspicuous processes such as technology thinking (the head) and digitization processes (the practice). This diagnosis draws on insights from Arendt, Ellul, and Jonas about modern, often subtle coercive mechanisms for which the traditional legal-state framework is not or hardly equipped although they have been frequently applied in recent years. For this reason, the traditional legal-state framework has been contaminated not only by digitization processes and power growth of police and government, but also by mobilization of mechanisms such as fear, peer pressure and techno-hypnosis. After an exploration of the concepts of individual and collective emergency (sections 1 & 2), I emphasize the international obligation to shape a balanced constitutional and legal system on emergency states. In- deed, fundamental rights oppose an “emergency breaks law” police system (section 3). Smart pandemic laws and other exception laws are sector-specific, time-limited, and based on the requirements of crisis management (on cyclical management) and the rule of law (including a role for reviewing judges) (section 4). Nevertheless, the times are not suitable for building a balanced constitutional and legal system on emergency situations. In a second part of the contribution (sections 5 to 9), I explain what makes these times an unfavorable codification time for good practices. There are simply too many bad practices, (I use the term “infections”). In that examination of legal infections, I dwell, as I said, on mechanisms of fear, peer pressure, and techno-hypnosis, and on increases in government and police power through digitization and through “ordinary” laws enabling “extraordinary” police powers. Brand new legislation on health crises (‘the Pandemic Law’) turned out to be no more than a plaster on a deeply festering legal wound, and this explains why the ‘new’ Belgian Pandemic Law is only briefly mentioned at the and as a post scriptum.
The Contaminated Rule of LawThe COVID crisis was tackled in Belgium with an emergency procedure of ministerial decrees, relying on the 2007 Civil Security Law, a law that is actually intended to allow for quick and temporary intervention in case of disasters such as large explosions or fires. Despite the Council of State' findings ("this law allows curfews"), this law is both inappropriate and dangerous: without parliamentary debate, it allows far-reaching restrictions on fundamental rights for long periods of time. In the Netherlands, too, the curfew was socially and legally controversial. There, too, there were calls for new legislation on lockdown and other police measures in the event of health crises. The discussions in Belgium and the Netherlands are therefore similar, although the Dutch Constitution and legislation is clearer, (but not enough) with regard to the possibility of declaring a state of emergency and combating infections on a large scale. Obviously, it makes sense, from a concern for the rule of law, to rewrite the Constitution and legislation. New safeguards for new, far-reaching infectious disease control measures for the unhealthy and healthy part of the population .... Who can be against that? This contribution is cautious about the usefulness of exemption legislation. Looking at the health crisis, and older crises such as the 9/11 crisis (terrorism), we pay attention to processes of power accumulation of the government, and the executive in particular, made visible by such a crisis, but made possible by inconspicuous processes such as technology thinking (the head) and digitization processes (the practice). This diagnosis draws on insights from Arendt, Ellul, and Jonas about modern, often subtle coercive mechanisms for which the traditional legal-state framework is not or hardly equipped although they have been frequently applied in recent years. For this reason, the traditional legal-state framework has been contaminated not only by digitization processes and power growth of police and government, but also by mobilization of mechanisms such as fear, peer pressure and techno-hypnosis. After an exploration of the concepts of individual and collective emergency (sections 1 & 2), I emphasize the international obligation to shape a balanced constitutional and legal system on emergency states. Indeed, fundamental rights oppose an "emergency breaks law" police system (section 3). Smart pandemic laws and other exception laws are sector-specific, time-limited, and based on the requirements of crisis management (on cyclical management) and the rule of law (including a role for reviewing judges) (section 4). Nevertheless, the times are not suitable for building a balanced constitutional and legal system on emergency situations. In a second part of the contribution (sections 5 to 9), I explain what makes these times an unfavorable codification time for good practices. There are simply too many bad practices, (I use the term "infections"). In that examination of legal infections, I dwell, as I said, on mechanisms of fear, peer pressure, and techno-hypnosis, and on increases in government and police power through digitization and through "ordinary" laws enabling "extraordinary" police powers. Brand new legislation on health crises ('the Pandemic Law') turned out to be no more than a plaster on a deeply festering legal wound, and this explains why the 'new' Belgian Pandemic Law is only briefly mentioned at the and as a post scriptum.Key words: rule of law – crisis- COVID crisis and 9/11 – codifying best practices today or wait - mechanisms of fear, peer pressure, and techno-hypnosis -increases in government and police power through digitization