Steuer, Max David

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Slovakia’s Democracy and theCOVID-19 Pandemic: When ExecutiveCommunication FailsMax Steuer 2021-03-09T09:00:38In spring 2020, Slovakia was praised for minimizing the instances of the COVID-19pandemic. By early 2021, however, with Slovakia among the top five countrieswith the highest increase of COVID-19-induced death cases, a very differentpicture has emerged, highlighting the costs of neglecting democracy considerations(encompassing human rights and the rule of law) by the executive in particular. The perceived success of Slovakia in containing the early wave of the pandemic inspring 2020 was credited to a combination of factors, including an early responseby the outgoing cabinet, compliance by the bulk of the population and the role ofkey public figures in setting best practices. The swift executive action, making useof the ‘state of crisis’ (núdzový stav) as stipulated in a constitutional act dealing withemergency situations (krízové situácie), resulted in restrictions of fundamental rightssuch as the freedom of movement, the right to assembly or the right to education.Illustratively, in spring 2020, Slovakia scored worse than Hungary and Poland withrespect to adopting discriminatory measures in the Pandemic Backsliding Index bythe Varieties of Democracy Institute.This post takes stock of the key Slovak responses to the pandemic since June 2020until February 2021. It argues that deliberation and justification of the key choiceswere missing in the legal policies. Coupled with the technocratic turn of the populistSlovak government and the ensuing lack of accountability, the Slovak ‘journey fromthe top to the bottom’ in terms of effectiveness of containing COVID-19 illustrates themismatch between a rhetorical and substantive commitment to the rule of law by theSlovak executive, that was only mildly mitigated via judicial, and to a lesser extent,legislative oversight.Executive Governance: Excluding the Public andDisconnect with Local GovernmentsAfter the gradual removal of the restrictions in May and June 2020, the state of crisisexpired without prolongation, and the Prime Minister Igor Matovi# declared a victoryover the pandemic. The Permanent Crisis Group, established via an executiveregulation according to the Act on Governing the State in Emergency SituationsExcept the Time of War and the State of War (387/2002 Coll, Art. 4 Sec. 5), was bydefault disbanded, and a period when the executive presented an overwhelmingreliance on expert judgments (such as from the Permanent Crisis Group and thePublic Health Authority) ended.- 1 -The summer returned an ‘illusion of normalcy’, with little executive action in place.The cabinet updated the statute of the Pandemic Commission, another expert bodyoperating under the auspices of the Ministry of Health (and established accordingto the Act on the Organization of Executive Action and Central State Administration[No. 575/2001 Coll., § 2 Sec. 7]), adding to the cacophony of expert commissionsremote from public scrutiny and understanding. Significant doubts remained,however, over the execution of the competences of the Public Health Authority (andits Director, the Chief Hygiene Officer). For example, the prohibition of sales onSundays (allegedly to leave sufficient time for stores for sanitation measures) asissued by the Officer remained in place even after the lifting of the state of crisis,raising concerns over a creeping ‘hygiene dictatorship’ in Slovakia (the restrictionwas lifted in response to public pressure).The increase of infections in August and September motivated the declarationof a new state of crisis on 1 October. The restrictions were nowhere near thosein spring; in particular, the executive appeared responsive to the concerns overhuman rights violations associated with the state quarantine and the cordoning off ofRoma settlements. Yet, the decisions (such as on closing schools before churches)remained without justification and continued to be issued formally by the PublicHealth Authority.The steady increase in cases resulted in PM Matovi# declaring to ‘take back control’of the ‘fight against the pandemic’ in September. Subsequently, Matovi# introducedthe idea of a mandatory nationwide testing as an alternative to the lockdown. Thefirst round of testing on 31 October – 1 November was executed with the help ofthe army (operation ‘Joint Responsibility’, the largest one in Slovakia’s militaryhistory), and local governments. However, municipalities were not involved in thedecision making, despite the fact that the nationwide testing was not supported bynotable experts on Slovak public health. Furthermore, the executive (referring to thePermanent Crisis Group) decided that a second round of testing would take place inmunicipalities which passed the positivity rate of at least 0,7 %. The threshold wasnot publicly justified, and given the organization of the testing (for example, citizensdid not have to get tested in the district of their residence or work), it appeared asarbitrary.The PM’s commitment to nationwide testing did not waver, and the procedure wascarried out in a similar vein in January, this time under stricter lockdown conditions(including the closure of churches and ski centres). The situation has not improved,quite the contrary: the chaotic nature of the measures and the lack of perception ofthe executive deciding on the basis of scientific evidence has not been conduciveto public compliance, and local governments have voiced concerns over the lack ofclarity and comprehensiveness of the measures due to their frequent changes andlimited executive communication.On 3 March, new restrictions came into effect, further limiting the freedom ofmovement. In addition, the PM’s unilateral move to purchase the unregisteredSputnik V vaccines without consulting with EU institutions has triggered agovernment crisis, with strengthening voices in support of the PM’s resignation. Thepurchase of the vaccines amidst continuing lack of success in reducing the number- 2 -of cases signals the return of ‘state panic’, where the public is in the dark as to theprecise scope of the restrictions in place and the strategies for moving ahead.Judicial and Legislative ScrutinyBoth the legislature and the courts remained operational during the pandemic.While parliamentary debates over the executive measures remained minimal, threelegislative or judicial actions should be highlighted. Firstly, a controversy arose whenthe executive reintroduced a state of crisis on 1 October 2020. The acting attorneygeneral challenged the decision before the Constitutional Court, referring to the lackof justification for reintroducing the state of crisis in that point of time. This was thehistorically first proceeding according to Art. 129 sec. 6 of the Constitution, whichallows the Constitutional Court to review declarations of emergency situations. TheCourt delivered a unanimous verdict (with one concurring opinion) on 14 October,supporting the leeway for the executive. Still, the Court (PL. ÚS 22/2020, § 70)signalled its openness to reviewing further measures, in case doubts about theirconstitutionality arise.Secondly, the legislature, despite the Constitutional Court’s suspension of theeffectiveness of an earlier amendment of the Act on Electronic Communicationsthat gave the public health authority access to location tracking data (the ‘strongestweapon’ against the pandemic according to the PM), amended this Act in thesummer in a very similar vein. Moreover, the parliamentary majority overrode thesubsequent veto of Slovak President #aputová in early September. While theexecutive gave up implementing a tracking app in October 2020 for logistical andpractical reasons, the case does not shed the best light on the capacity of thelegislative majority to scrutinize executive initiatives questioned by the ConstitutionalCourt.Thirdly, the executive prolonged the state of crisis, declared on 1 October for 45days, for another 45 days on 11 November. Thus, the state of crisis was about toend on 29 December, despite the continued increase of cases, given that the acton Act on Governing the State in Emergency Situations limited (Art. 5 sec. 2) themaximum length of the state of crisis to 90 days. The easy way out was to amendthat Act so that the executive could continue to prolong the state of crisis, subject toex post parliamentary authorization of the individual prolongation. This was a readilyavailable option thanks to the constitutional majority enjoyed by the coalition. Apractical problem arose with parliamentary authorization, however: many MPs testedpositive for COVID-19, and hence could not participate at the voting scheduled for17 December. To allow them to cast their votes, the Public Health Authority issuedan ordinance that exempted MPs from the lockdown. In other words, an executiveagency enabled MPs to meet and approve an amendment of the constitutional actthat widened the leeway for executive action. The amendment was approved on 29December and the legislature subsequently authorized the prolongation of the stateof crisis on 12 January. The most recent prolongation of the state of crisis to datewas endorsed by the legislature on 26 February, and it appears that the emergencysituation will remain the norm until a notable change in the infection rates.- 3 -As a whole, the coalition’s constitutional majority (that comfortably allows to pass anyordinary legislation) limited legislative scrutiny in Slovakia. The Constitutional Courtappears as a more reliable check on the government, having shown that, at least insome instances, it is capable to decide quickly and substantively scrutinize executiveactions. The Right to Assembly and Education: Victims ofthe Pandemic?While a range of fundamental rights was affected by the pandemic, two rightshave particularly suffered due to the lack of executive coordination and clearcommunication. Firstly, the right to peaceful assembly (Art. 28 of the Constitution)remained restricted by the declaration of the state of crisis, even when, on 16November, cinemas, churches and theatres were allowed to reopen. The greater riskof assembling in public spaces as opposed to attending cultural or religious eventswas not demonstrated. Given the ban, pro-democratic gatherings did not take place.In contrast, anti-democratic forces continued to assemble. A protest took placeon 17 October, supported by the extreme right and with the participation of ultras.Another round of protests was held on the anniversary of the 1989 demonstrationsagainst state socialism (17 November), this time joined by more opposition actors.The police communicated its effort to intervene proportionately to the seriousnessof the situation, with minimizing violence but investigating those who violated thelaw. As a deterring example, it was reported that a man infected by COVID-19 at theprotests had died. The ban on assemblies was not disproportionate on its own, but injuxtaposition to the absence of other, less intrusive restrictions to fundamental rights,also intended to protect public health.The right to education (Art. 42 of the Constitution) has suffered during the pandemicas well. Similar to the ban on assemblies, schools remained closed when variouscultural and religious gatherings were permitted. Children from disadvantagedenvironments were allowed to return to schools on 16 November, but, as a reportof the public defender of rights noted, there was no systematic planning in placethat would have thought of the individual circumstances and needs of the students.Specific concerns, expressed also by the Slovak National Centre on Human Rights,arose after the decision of the minister of education from 4 December to makethe attendance of pupils from 5th to 9th grade conditional on showing a negativeCOVID-19 test result. Considering the centrality of education for understandingdemocracy and developing pro-democratic attitudes, restrictions on the right toeducation may have long-lasting effects beyond the pandemic.Towards a 2021 OutlookThe general direction of Slovakia’s response to COVID-19 does not deviate frominternational practices, invoking a mixture of existing competences in emergencysituations, coupled with amendments of key legislation. The role of the legislatureremained limited, at least in part due to the constitutional majority enjoyed by- 4 -the coalition. The operational Constitutional Court has displayed some capacityto invalidate measures with a potential to undermine democracy. However, theabsence of justification and coherent communication of executive measures castsa shadow on Slovakia’s commitment to surviving the pandemic without losingdemocracy along the way. Judging by the measures adopted in the first two monthsof 2021, the concerns are likely to remain relevant this year, and may combine withquestions (such as on curtailing the competences of the Constitutional Court) on thegovernment’s ambitious anti-corruption and rule of law reform that continues despitethe pandemic. EU institutions and civil society should subject the government toscrutiny along both lines, rather than constraining themselves to the pandemic-related measures.- 5 -

Slovakia’s Democracy and the COVID-19 Pandemic: When Executive Communication Fails

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Slovakia’s Democracy and the COVID-19 Pandemic: When Executive Communication Fails

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