Thoughts and Theses on the Corona Exceptional State

Thoughts and Theses on the Corona Exceptional State
by Rolf Gössner

The following text is the completed and updated long version of a contribution,
which was published in an abridged version in the bi-weekly journal for politics / culture / economy "Ossietzky" No. 8 of 18.04.2020)

[This article published on 4/18/2020 is translated from the German on the Internet, Gedanken und Thesen zum Corona-Ausnahmezustand - 8 / 2020 - Ossietzky., Zweiwochenschrift für Politik / Kultur / Wirtschaft. - Verlag Ossietzky GmbH.]



Following certain rules to protect yourself and others as much as possible should make perfect sense in the face of the corona epidemic and its dangers - if it can slow down the spread of the virus, save the health care system from being overburdened and protect the lives of those most at risk. Nevertheless, we should critically review the current nightmarish situation in the wake of the corona virus and examine it for proportionality and constitutionality - especially in times of state coercion, especially in times of general fear, uncertainty and adjustment. Particularly since the drastic measures, which have a strong impact on all our lives, were ultimately imposed on the basis of uncertain scientific data.

The following skeptical thoughts and pointed theses should help to get the complex and confusing problem under control to some extent and offer civil rights orientation for an open and controversial debate. Unfortunately, this debate is currently still suffering from fear, one-sidedness and pressure to conform, as well as from defamation and exclusion: "Anyone who talks about civil rights these days", Charlotte Wiedemann wrote in the "taz" (25.03.2020), "is easily accused of irresponsibility (...). And anyway: Criticism is not the time! (...) The media are also under pressure to conform.

With so much fear and rarely unanimity, skepticism and critical questioning of supposed certainties and authoritarian decrees are not only advisable but urgently required. After all, this is part and parcel of a living democracy - not only in good weather, but especially in times like these, especially in times of great danger lurking from different directions.

Firstly, the corona virus not only endangers the health and lives of people, but also damages securitized basic rights and freedoms, the rule of law and democracy - "thanks" to the defensive measures of the state authorities, which intervene deeply in the lives of all people: Defensive measures that have serious social, cultural and economic costs and dramatic long-term consequences.

Secondly, we are experiencing a state of emergency in health policy in real time and for an indefinite period - recently called "new normality" (Vice-Chancellor Olaf Scholz, SPD / Federal Minister of Health Jens Spahn, CDU). As never before in the history of the Federal Republic of Germany, elementary basic rights and freedoms are being massively restricted, and in some cases completely suppressed, by bans on contact and assembly under duress: general personal rights, the right to freedom of movement, to freedom of action, to education, to freedom of assembly, opinion, art and religion, as well as the protection of marriage, family and children, the freedom to exercise a profession, freedom of trade and travel. Virtually the entire private, social, economic, cultural and religious life of a whole country of 83 million inhabitants is largely disrupted - to protect health and life. Protected goods, which are otherwise not always held in such high esteem, just think, for example, of agricultural poisons, environmental pollution, traffic deaths due to speeding, 25,000 deaths per year due to multi-resistant hospital germs, tens of thousands of drowned refugees in the Mediterranean, countless deaths and injuries due to arms exports to crisis areas and dictatorships, devastating economic sanctions or participation in wars.

Thirdly, under such conditions of a state of emergency, any organized resistance and collective expression of opinion in public space is largely taboo - whether in the form of protests, demonstrations or strikes. Such as demonstrations against the state of emergency, against the development into a "totalitarian state", against the consequences of an impending economic crisis that threaten the existence of the state, or against the collective repression of the catastrophic conditions in Greek refugee camps. Thus political and social participation is largely curbed, freedom of assembly and the right to strike are undermined by a general decree and police violence, and their very essence is thus violated - usually even when the activists observe safety and distance rules. A constitutional disaster with hints of a police state, which the Federal Constitutional Court finally put a stop to, at least to some extent, in mid-April 2020. General bans without examining the individual case are inadmissible (Ref. 1 BvR 828/20). Even in times of Corona, meetings must be permitted, then under appropriate conditions.

Fourthly: Even in the case of great danger, state authorities are obliged to act in accordance with the law and the constitution - which, however, in times of the "Corona crisis" and under the primacy of health care ("overriding protection of human health and life") no longer seems to apply consistently. But even in such times, the social distortions and long-term health consequences of the restrictions on daily life must be included in a constitutionally required weighing up of rights to freedom, health and life - which is apparently not or too rarely done at present. Health protection and freedom rights must not be played off against each other, human rights against human life. For in a democratic constitutional state, even in a serious crisis, citizens* must be able to rely on the fact that freedom rights are not being disproportionately and unconstitutionally encroached upon, but that the mildest means are chosen.

Fifthly: But this is exactly what will not happen in spring 2020 with many of the general decrees and ordinances of the federal and state governments. In some states, such as Bavaria or Saxony, for example, it is forbidden to leave one's home without a valid reason - which in the case of a police check affects the private and intimate sphere. In Berlin, even reading a book on a lonely park bench or having a picnic with two people was punished by the police. In Saxony, residents are only allowed to move around their homes; residents* with a secondary residence in Mecklenburg-Western Pomerania are practically expelled from the state or are not allowed to enter, etc. Such bans are neither necessary from an epidemiological point of view nor are they proportionate. They border on harassment and arbitrariness and should be lifted immediately.

Sixthly, most orders of the Federal Government and the Länder concerning contact and assembly bans may not be constitutional anyway, because in the opinion of some constitutional experts there is no suitable legal basis for them. This is also the view of Andrea Edenharter, a state law expert, among others: The Infection Protection Act only allows "narrowly defined restrictions" on individuals, time and space. Weeks of restrictions on freedom of movement for the entire country and its entire, predominantly healthy population cannot be derived from this; this violates the constitutional principle of proportionality (FR 26.03.20).

By mid-April 2020, more than 150 rulings had been issued, dealing with federal or state legal acts to contain the corona epidemic, with more to follow. A large part of these rulings concern ordinances restricting basic rights, such as "assembly bans" and exit restrictions. Urgent applications for temporary injunctions against such decisions have not yet been successful in most cases, but this could change in the subsequent main proceedings, at least in one case or another.

Seventh: Parliamentary democracy also suffers from the "Corona crisis": the opposition appears to be paralyzed, democratic control is undermined. The tightening of the Infection Protection Act, on which, among other things, the contact ban measures are based, was carried out in a fast-track procedure - without expert hearings and without a policy impact assessment, even though these are measures of great importance. On the basis of this new legal basis, the Bundestag can now temporarily declare an epidemic situation of national importance as soon as a "serious threat to public health" is identified - with the consequence that far-reaching powers and decision-making powers are transferred from parliament to the Federal Minister of Health. This health emergency was publicly declared by the Bundestag immediately after the amendment of the law at the end of March 2020. This means that the Federal Ministry of Health is now authorized until 1 April 2021, without prejudice to the powers of the federal states, to issue orders or ordinances without the consent of the Bundesrat.

Eighth: According to the Infection Protection Act, which reads in part like a police law, the Federal Minister of Health and the competent authorities for averting danger - undermining medical confidentiality and data protection - can order reporting obligations, issue quarantine regulations, specify requirements for the supply of medicines and protective equipment, impose restrictions on freedom of movement and travel as well as residence and contact bans, as well as activity bans for certain occupational groups, bans on events up to and including the closure of public and private institutions, etc. The prohibitions of the federal and state authorities are subject to police force.

Infringements are punishable by sometimes drastic fines and penalties.

In addition, the Federal Minister of Health is authorized by the Infection Protection Act to order exemptions from applicable laws. Such regulations undermine the government's constitutional commitment to laws. Such blanket authorizations of the federal executive without parliamentary control and participation of the German states (Bundesrat) undermine the constitutional principles of the separation of powers and federalism, which is why, in the opinion of several constitutional lawyers, these authorization norms are likely to be unconstitutional.

Ninth: In the crisis, there is also the danger that already problematic trends will be exacerbated: Such as the militarization of "internal security" as well as the state surveillance that has been forced for years. In the current "corona crisis", Federal Minister of Health Jens Spahn (CDU) is still striving for the tracking of mobile phones, which could initially be prevented: In this way, movement and behavior patterns of mobile phone users could be automatically created to determine with which persons infected persons had contact. This would be a serious violation of the basic right to informational self-determination.

The passing on of anonymous telecommunication data by Telekom and others to the Robert Koch Institute is already common practice. And in the future, it is to direct apps to mobile phones that use Bluetooth to register all contacts to other mobile phones with apps nearby and save them for a certain period of time. If one of the cell phone owners is infected, the contact persons could then be informed digitally so that they can undergo corona tests or go into quarantine immediately. This should be done on a "voluntary and anonymous basis". Whether this really works is questionable, especially if a large majority of mobile phone owners do not install such apps. Because such a majority would be necessary for this instrument to have sufficient effect. This could increase the pressure on mobile phone users to such an extent that voluntary action would no longer be possible.

Incidentally, special caution is required because digital monitoring of social contacts would be more than delicate - and possibly a gateway for further desires, such as the mandatory use of such apps and possibly also for other purposes. Some health authorities, such as in Lower Saxony, are already illegally reporting personal data of corona infected persons and contact persons to the police. In the meantime, police drones are also flying, for example in Hesse and NRW, to monitor the corona contact rules from the air and warn people in public spaces from above via loudspeakers. Whistleblower Edward Snowden already warned against a further step into the surveillance state in view of the corona surveillance measures and plans.

Tenthly: Another trend is threatening to intensify in the wake of the "corona crisis": The German Federal Armed Forces are already being deployed in a supportive capacity by means of administrative assistance in the logistics and medical sectors and for disinfection tasks - which may well make sense. It has already mobilized 15,000 soldiers for domestic deployment to support federal states and municipalities, but is also preparing to support the police, including military police officers from the military police for "law and order services" and for the protection of critical infrastructures (Spiegel 27.03.20, IMI-Standpunkt 2020/010). However, police-like executive powers of the military at home are highly controversial under constitutional law, as police and military, their tasks and powers must be strictly separated - an important lesson from German history. The German army must not become the national security reserve at home, certainly not with sovereign powers and military means. Soldiers are not auxiliary policemen; they are not trained for police duties in accordance with the principle of proportionality, but for warfare and equipped with weapons of war; nor are they there to compensate for real police personnel deficits.

Eleventhly: The serious economic consequences of the prescribed restrictions on daily private, cultural and economic life have long since come into focus and are to be mitigated with an extensive and multi-billion-euro aid package from the Federal Government - which, however, will not prevent professional existential needs and countless losses of livelihood. Far less in the public eye are the threatening social upheavals - particularly threatening for the socially disadvantaged, the poor, the homeless and refugees. The already strong social divisions in society will become even more pronounced.

Long-term damage to health is also becoming a social problem: the ban on contact and assembly, which may last for weeks or even months, can lead to loneliness and social impoverishment, existential stress and psychological disorders, gambling and alcohol addiction, depression and suicide, but also to aggression and domestic violence, which is said to have already increased noticeably. All these are risk factors for disease incidence and higher mortality. "If individual deaths are prevented now, but overall mortality in the population increases in the coming years, the proportionality of the means would not be maintained," warns Stefan Willich, Director of the Institute for Social Medicine, Epidemiology and Health Economics at the Charité in Berlin (Tagesspiegel 24.03.2020).

Twelfth: The fact that in fear-filled times of the "corona crisis" and the political and mass media-fired uncertainty, only a few people ask about the high price of rigid state intervention is understandable at first glance, but in the long run short-sighted in view of the health risks. For in the long term, defensive measures of this kind could have a more destructive effect on society than the reasons for defense themselves. "Infectious is corona and infectious is the fear of it", writes Heribert Prantl (Süddeutsche Zeitung) in mid-March 2020: "Fear is addictive to everything that promises to alleviate fear". But one had to ask "what is done when fundamental rights and freedoms are shut down and social interaction is suspended. And it is necessary "not only to fight resolutely against the virus, but also against a mood that sees basic and civil rights as ballast, a burden or a luxury in times of crisis".

But if danger and insecurity only seem great enough, the majority of the population apparently accepts social and individual restrictions with approval, resignation or submissiveness, sometimes even in anticipatory obedience. Apparently, the longing for authoritarian leadership and authoritarian "solutions", for clear announcements and orders, both in times of terror and in times of corona, is given a considerable boost - in times of crises, catastrophes and insecurity in general. The helpless cry for the strong authoritarian state cannot be ignored. And denunciations are in full swing. "The fear of disease has eaten away at democracy," diagnoses publicist Jakob Augstein (Der Freitag).

Thirteenth: The acceptance of the ever more drastic restriction measures, which are associated with extreme encroachments on civil liberties, is in any case huge: 88 percent of those surveyed agreed with them. One in three wanted even harsher restrictions, and two-thirds expect even more bans to prevent physical and social contact. Only eight percent of Germans thought the measures were excessive (SZ 26.03.2020). The historian René Schlott speaks of a "shattering willingness on the part of the population" to accept the abrogation of rights as having no alternative, "which have been painstakingly fought for over centuries". In view of the contact blocks and assembly bans he speaks of a "rendezvous with the police state" and warns against "strangling open society in order to save it" (Augsburger Allgemeine 18.03.2020; Der Spiegel 01.04.20).

Fourteenth: But despite fundamental acceptance by the population, discontent is gradually growing. Indeed, it would be absolutely disproportionate and thus unconstitutional to imprison the entire population for months - or even until a vaccine is found, as is sometimes heard. The former president of the Federal Constitutional Court, Hans-Jürgen Papier, warns of the "erosion of the rule of law" if the "extreme interference with the freedom of all" continues for a long time (faz.net 02.04.2020).

Politics and administration would therefore have to check again and again whether less drastic measures were possible. But a democratically conducted debate on a sustainable, comprehensible exit strategy that could lead out of the paralysis of public life is not really in sight - even if the call for a phased exit scenario is becoming louder and louder, even if the state has decreed a few relaxations for the period after April 20.

Fifteenth: The Corona emergency measures will certainly lead to a severe economic, social, democratic and constitutional crisis. And there is a danger that they will trigger an acceleration and habituation effect towards the normalization of exceptional rights. Vice Chancellor Olaf Scholz and Federal Health Minister Jens Spahn have already declared the state of emergency to be the "new normality" for a long time.

And so Heribert Prantl rightly asks whether the Corona crisis could become "a blueprint for action in real or supposed extreme situations". And possibly not only in extreme situations, but also in everyday life. For the state of emergency in the modern prevention state, in which we have been living for a long time, tends to mutate into the legal normal state of crisis prevention and crisis management. As in the course of the anti-terrorist armament policy after 9/11, when the "state of emergency" was gradually made legal - with largely unlimited laws that severely curtail civil liberties and can long since be qualified as "emergency laws for everyday life". Now follows the legalization of the health emergency; and here, too, the state of emergency threatens to become the normal state - as the sociologist Ulrich Beck had already predicted in the mid-1980s in view of the development of a "risk society". Maximum vigilance is now required to ensure that the new state of emergency does not gradually normalize and that the authoritarian turnaround does not become entrenched.