March 20 Statement – Recht op Recht

1. On March 13, 2020, Europe was designated the epicenter of the COVID-19 pandemic by the WHO. One year and one week later (March 20, 2020), the situation in Europe is anything but under control. The havoc of the pandemic is a lot worse than in other continents: more than 850,000 deaths in total, and in the list of deaths per million inhabitants, European countries are in the first 10 places. In absolute number of fatalities, the United States tops the list with 550,000 deaths. The worst affected countries in Europe are Italy with 100,000 deaths, France with over 90,000 and Spain with over 70,000. Belgium has more than 20,00 deaths, making it among the worst off countries in terms of number of deaths per million population, along with the Czech Republic and Slovenia. The rollout of vaccinations has been underway in Europe for over 2 months, yet less than 10 percent of the population is fully vaccinated. In Belgium, it is less than 5%. France is reintroducing strictures in March 2021 because the curves are not coming down, in Belgium the consultation committee met early on 19 March 2021 to postpone planned relaxations given the gravity of the situation and the risk of a possible “third wave”.

2. The initial reactions from Europe to the outbreak of the epidemic in China were one of hubris and self-aggrandizement: “It wouldn’t happen to us, with our health infrastructure we would have to take far less drastic quarantine measures than in China,” was the tenor, expressed in Belgium, for example, by Maggie De Block. It turned out to be a complete miscalculation: COVID-19 not only hit Europe harder, but the measures of quarantine and lockdown should take much longer to (not) control the virus.

3. The severity of the outbreak in Italy, the first European country where Corona struck, placed everyone face to face with the hard facts of this misplaced European optimism. But even then, the other countries waited as long as possible to take serious measures. Mass meetings, Belgian air traffic (including trade flights to China) continued to take place at a time when intervention was long overdue. Italy held up a mirror to the continent, but a year later, with the political crisis, it will also hold up a mirror to us on how to approach the recovery (see below).

4. The common thread in all European countries to deal with the pandemic was to leave the main sectors of industry untouched. Except for a few weeks of closure, they just had to keep running. That there was a lockdown at all for these sectors was thanks to spontaneous strikes, among others in the Italian car factories. Governments unanimously decided not to fight the spread of the virus in the “working world” (except for a form of little controlled and enforceable telework), but all the more in the “private world”. Only the small self-employed in the catering industry had to close their doors, and cultural events (music and theater) were also discontinued. Sports continued for the most part, i.e. professional sports, although without or with fewer spectators than usual. Higher education was (largely) organized remotely, primary education continued as usual, except for a few weeks during the first wave, and a week’s extension of the autumn and crocus vacations. It provoked the sad witticism of many people that there were two viruses: one that circulated at work (and in the schools) and was totally harmless, and another virus “at home” and in leisure time, which we have to watch out for very carefully. In the sectors of the middle class and the cultural sector that did have to close their doors, the financial backup in for most employees and self-employed people is more than insufficient. This is reflected in an increase in bankruptcies and in poverty or risk of poverty.

5. The reason for this ambivalence – big industry is spared and the less lobbying or profitable sectors are sacrificed – we should not look far. The main concern in Europe and all Western countries was never public health but rather the danger of “instability” in the international financial markets. How will the stock markets react? That question was in the back of the minds of government leaders, and all measures were and are geared to it. That is also the reason why they waited as long as possible to intervene, hoping that it would blow over like a “serious flu”. When it became clear that COVID-19 was more than a “serious flu” they started to “overreact” by intervening in the private sphere of the citizens, as a passport to keep haute finance and big industry untouched.

6. In Europe, the concern for “financial market stability” is translated into stability for the Eurozone and the EU, and the EU Corona Recovery Plan was designed with that objective in mind. Instead of direct funding from the ECB, the billions for the “recovery plans” or “recovery pans” will be raised on the international financial markets, and the financial risk of the debt that the EU is now “collectively” taking on for the first time will be entered into the reform plans of the individual member states for repayment once the European Budget Pact is reactivated. (The budget rules for this pact were temporarily suspended because of Corona). This construction threatens to further divide the EU member states instead of stabilizing them. The recovery plans themselves are no more than a few disguised “bail-outs” for the business world, especially the large companies, and with “strategic projects” of public-private partnership. In the French bailout plan, for example, the reductions in the burden on companies are already inscribed. The Belgian plans have not yet been worked out in detail (or at least they cannot be found publicly anywhere), but their content will be no different. It is indicative of the political awareness and ideology in Europe that almost all political groups in the European Parliament have voted in favor of these plans. Also the European trade unions are in favor of the plan and live in the illusion that it would be a “first step towards the recovery of the peoples“.

7. The derivative variable of the primary concern for “financial market stability” and that of big business was the “capacity of the hospital infrastructure,” specifically that in intensive care. Governments made every effort not to “flood” them. However, intensive care treatment with respirators has never been sophisticated or life-saving. Technically, it could also be done in people’s “homes,” and in many cases it would make no difference whether the patient in question would survive. But having to refuse people on intensive care would have caused too much outrage among the population, and completely shattered the inflated image of a “robust health care system.” Thus, in addition to the primary (global) concern of (international) “financial stability”, “political stability” was the second major concern of governments in all countries affected by COVID-19, which was expressed in the concern not to overburden ICUs. The derivative variable of that concern was the R value, the rate at which the virus spread. Above 1, the virus gets an exponential spread among the population, below 1 it “goes out”. All measures were thus aimed at keeping the R-value below 1, otherwise there would be a risk that the ICs would be overrun.

8. The most important “quarantine” intervention in the private sphere is the introduction of curfews, which had not happened on the European continent since the occupation by Nazi Germany during WWII. We recall that the official justification for the creation of the European Union was the slogan “Never Again War”. The cooperation of European countries into a “Union” was to counteract the catastrophe of the World Wars. The justification for the introduction of the curfew is enormously banal in this context: to avoid organizing “lockdown parties,” gatherings of citizens who come together in the evening and thus increase infections.

9. The curfew was introduced at different times by different governments and sub-governments, indicating the lack of cooperation between the different European countries, a reflection of the unwillingness or incompetence within the European Union to work out a common strategy, with uniform measures against the pandemic. Another striking example is that the distance rules were different in each country: 1m, one and a half meters or 2 meters.

10. Belgium followed the example of France in imposing this curfew, which was first introduced at provincial level in Antwerp and Luxembourg during the summer months, when there was no general closing of pubs. (There was, however, an early closing time, and the curfew was argued to allow people who “stuck around” to go home on time). During the “second wave” there was first a curfew in Wallonia and Brussels, then one in Flanders. In the Netherlands, the curfew was introduced even later. In France, different departments had different curfews. In Belgium, Brussels and Wallonia (10-6pm) have a different curfew than Flanders (0-5pm). In the Netherlands, the curfew was voted on and passed by majority-minority, then declared illegal by a court. “Belgium” adopted the example of France but the decision on the duration of the curfew was left to the state governments. The difference in the duration of the curfew does not point to a scientific but to a political logic that can be traced back to the state reform. If there are any demographic or cultural differences between Flanders, Brussels and Wallonia to justify a different timing of the curfew, the decision should have been more in the reverse: an earlier curfew in Flanders and a later one in Wallonia and certainly Brussels. When the curfew begins and ends is therefore purely a matter of guesswork, and a result of profiling by state administrators who also want to have “something” to decide (and who then deliberately implement the curfew “differently” than their competitors in the other states, to give the impression that they want to be stricter or less strict).

11. The various curfews in Belgium are related to the complex Belgian state structure cum state reforms, and are an example of the principle of “subsidiarity“. Simply put, this is that the lower levels of government decide on everything that the central authority (the federal government) is unwilling or unable to decide on, and where the “knot” is cut at a lower level. In reality, since the Corona outbreak, nothing has actually been decided by the “federal government” in the strict sense of the word. Under Wilmès II, it was the “National Security Council” that made the decisions, assisted for that purpose by the Prime Ministers of the Regions and Communities, and issued by Ministerial Decree. Under Decree I, it was the “Consultative Committee” (https://nl.wikipedia.org/wiki/Overlegcomité). These are deliberative bodies that do not have any constitutional authority per se. The Consultative Committee was created in 1980 with the aim of regulating conflicts of interest between the different levels of power. (https://www.vocabulairepolitique.be/comite-de-concertation/). The National Security Council was created in 1996 and serves, among other things, to counter terrorist threats (actually we can consider it a kind of extension or branching of State Security). The bodies are actually used in a “spurious” sense in the Corona pandemic, and in reality a consequence of Belgian confederal subsidiarity without in a “state of exception” where parliaments are sidelined. The “federal level” then actually becomes the party presidents and prime ministers who sit in it. The situation could then have gone something like this: at a certain point it was discussed in the consultation committee that a curfew would be a “possible” or “necessary” intervention to combat the pandemic (especially after its “usefulness” had already been tested at the provincial level during the summer months), but it was then up to the states to decide when and in what form it should be introduced. Without suggesting that this was premeditated, an additional “advantage” of having different types of curfews is that they are less likely to lead to a “unified” protest against them.

12. There are other problems with the curfew, and also from a scientific point of view. The message of this is that the virus becomes more dangerous at night, and that it becomes more unsafe “outside” while it is safer “inside”. But this does not correspond to reality, and emancipation begins with passing on correct information. The reality is that the virus circulates through physical social contacts between people, and these must be contained (in whatever sphere of social life). Will that be done by requiring people to stay inside between certain hours? Probably not. In some cases, the curfew will probably even have the opposite effect, such as in France where it will apply everywhere from 6 p.m. (until 6 a.m.) from January 2021. The consequence is that more people will be on the road at the same time to do their shopping, for example, which is more likely to increase the frequency of physical proximity and gatherings. However, this cannot be verified because this effect may have been neutralized by other measures, or by a possible “natural” (seasonal) course of the virus. French media also indicate that they have difficulty isolating the effect of the measure and point to a possible worsening of the effects rather than their intended containment (https://www.ladepeche.fr/2021/01/29/covid-19-comment-le-couvre-feu-a-18-heures-a-aggrave-lepidemie-a-toulouse-9340790.php).

13. Politically and ideologically speaking, the introduction of the curfew is probably motivated by in a twofold evolution that has taken place in recent decades (and these two trends are also interrelated). First, the politics of austerity and social breakdown, where everything “must not cost anything more.” In other words, “the buckle must be tightened”, something we have been hearing for 30 or 40 years, and which the Corona has not changed the governments’ minds about, if we are to believe Eva De Bleeckere recently. The introduction of the curfew fits into that logic because it is a cheap “convenience solution” to stop lockdown parties, which costs less than, say, providing the means to enforce a curfew. Secondly, we are increasingly falling into a “state of exception”, where the influence of parliament, the separation of powers, are “temporarily” pushed aside. An undermining of democracy actually. This is an evolution that has been going on for some time, but the War on Terror in 2001 was an important milestone in this. In Europe, we also had the terrorist attacks in France in 2012 and 2016, which were also an occasion for the Hollande government to declare a state of emergency. On the fiscal side, the EU budget standards referred to in section 4 are the “monetary” form of this state of exception: budgets are bound by strict rules imposed from above, and member state parliaments have nothing more to add. What is the underlying reason for this “state of exception” becoming more common, and our democracies evolving more towards authoritarian government? The main one is the ever-increasing social inequality, and the social tensions that it potentially brings. Continuous austerity and social breakdown are less and less compatible with democratic governance, as our leaders are also aware. The saying that these are “temporary”, “necessary” interventions, in order not to overburden the “coming generations”, is so worn out and has long been punctured by the gigantic enrichment the billionaires – the “financial oligarchy” – have realized for themselves in recent years and decades. That is the logic behind governing in a more “authoritarian” way, and that is where the curfew fits in. Our politicians already take this all for granted to such an extent that they also had no reservations about introducing it, nor was there any parliamentary opposition when it was introduced.

14. The curfew is unconstitutional, as “novodpaper” has pointed out. “The Constitution should not be suspended.” The main arguments for their suspension were:

It is a deprivation of liberty and not a restriction of liberty (as e.g. with a ban on gathering or the introduction of “bubbles”).
It is disproportionate since one is punishing the entire population to prevent (a small minority of) citizens who would not comply with the assembly ban from spreading the virus.
Entering and being able to leave one’s own home at a time of need is a fundamental fundamental right that is indeed, in many situations, based on an (acute) need (for example, to escape an unhealthy or life-threatening situation).
Art.187 of the Belgian Constitution states, “The Constitution cannot be suspended either in whole or in part” (there would be no such provision in any other Constitution).
Art.30$2 of the Ministerial Decree seeks not only the suspension of this fundamental right, but also its enforcement by force.
Art.12 of the Constitution states, “The freedom of the person is guaranteed…” (only in flagrante delicto or by court order may a person be arrested).
Art.5 ECHR protects free access to the public domain, to which exceptions must be “very limiting and restrictive” (and in the case of stopping the spread of a disease, the effect of other, less far-reaching measures had been exhausted).
The “essential movement” exception was not defined, but left to the discretion of police departments to determine whether a citizen would fall under it.
Art.22 of the Constitution guarantees the right to a private life. The applicants refer to Van Damme (“Overview of Constitutional Law”, Bruges, Die Keure, 2015): “the right to rest and seclusion is an eminently personal right, the concrete interpretation of which will differ from individual to individual”.
With the Ministerial Decree on the introduction of a curfew, the regulator is proceeding with a preventive measure, making no distinction between persons wishing to use the public space. This goes against Art.24 of the Constitution: “…any preventive measure is prohibited”.
Through the disparate treatment (disparate effect) of the curfew on the needs of citizens, the curfew violates the principle of equality and anti-discrimination. This may sound confusing on a superficial reading, since the curfew applies “to everyone.” But this ignores the principle that those in different situations should be treated differently in the exercise of fundamental rights (just as some people are entitled to benefits and others are not).
Nowhere was the need or effectiveness of the curfew demonstrated.
The introduction of the curfew and the associated punishment provisions violate Art.14 of the Constitution: “No punishment can be introduced or applied except by virtue of the law.” The executive can only exercise the powers assigned to it by the Constitution.
The Law of May 15, 2007 (the upgrade of the Law on the Contingency Plan of December 31, 1963), which the Minister invoked for the introduction of the curfew, is an insufficient basis for the measures issued. The applicants refer, among other things, to the passage in which the measures provided for “relate solely to the necessities of material protection”.
The curfew was introduced without the normally obligatory advice of the Council of State. The argument of “urgency” was put forward that one could not wait 5 more days for the advice of the Council of State, but the curfew was introduced on October 16, while some virologists had been warning of the possible danger of a “second wave” since July. Between the successive Ministerial Decrees there were several periods of more than 5 days.
Since the warnings of the possible outbreak of a “second wave,” several Ministerial Decrees have introduced relaxations. This is contrary to the “urgency” of introducing a curfew, and to the reasoning that it would be the last resort in the event that other measures are exhausted.
When the curfew was introduced over the Belgian Territory, the Ministerial Decree referred to alleged effects of the previously introduced provincial curfews in Luxembourg and Antwerp. However, these effects were never demonstrated, but simply “assumed” (“From the facts it appears” – what facts?) This is a violation of the principle of due care (https://www.elfri.be/rechtspraak/zorgvuldigheidsbeginsel).
By implementing the curfew, the executive violated the duty to state reasons (https://www.juridischwoordenboek.nl/?zoek=motiveringsplicht).

15. The voices that have been raised from party-political quarters since March 2021 to abolish the curfew (among others by MR, Open VLD and N-VA) have nothing to do with concern for the principles of the rule of law, but only with political profiling. The arguments are never about these principles of the rule of law, but are of the level “it has taken long enough” (on the basis of which the curfew has taken “long enough”, but on the other hand had to be introduced urgently, remains a mystery). The so-called objections to the curfew from party political quarters are very fleeting. If the figures rise again, it will probably be quicker to call for an increase in the curfew than for the control or closure of businesses and schools.

16. Opposition to the curfew is used as a lever to stimulate general opposition to coronation measures. In doing so, it is lumped in with protests against masquerade, against spacing rules, against the closing of bars and restaurants and other measures, but at the same time often in synergy with opposition to vaccination. Order words of resistance were initially (the first wave) “herd immunity”, in a later phase the more diplomatic variants of this such as “reverse lockdown” or “focused protection” promoted among others by the liberal (libertarian) scholars of the “Great Barrington Declaration” (https://gbdeclaration.org/focused-protection/). The general battle cry is that “the measures are worse than the virus itself,” sometimes with the overt assertion that the victims of the measures are mistakenly counted as victims of the virus. This is said to be due to “incompetence” of a political class that has fallen into a kind of “psychosis” and does not dare to retrace its steps, or to conflicts of interest among the consulting scientists who have ties to the pharmaceutical industry in all countries, and therefore deliberately blow the pandemic out of proportion to satisfy the need for a collective vaccination campaign that is profitable for the pharmaceutical industry.

17. The protests that want to abolish the protective measures and thereby “reopen the economy” are in the last instance only defending the interests of the financial oligarchy. Indeed, a condition for the “stabilization” of the speculative financial markets, is twofold. First, there are the financial rescue plans that serve as “bail-outs” and are interpreted that way by the speculators. After the announcement of the U.S. CARES act, international stock markets shot up to unprecedented levels (https://www.iforex.in/news/wall-street-surged-hopes-hypes-early-cares-act-30-19t-and-reddit-202102061052). The second condition for reassuring the financial sector, however, is to guarantee that the economy will not remain “locked” for too long, that the exploitation of the working class in industry will return to its “normal” state as quickly and as completely as possible. “Open the business” here enters, as it were, into the marriage with “herd immunity”.

18. That that marriage is not compatible with protecting the health and lives of the working class, nor with “democratic” handling of the issues, was most evident by the events in the United States at the end of the administration under Trump. The approach of the Trump administration was a policy that was de facto as close to “herd immunity” as possible, up to and including opposition from the World Health Organization (https://www.bbc.com/news/world-us-canada-53327906) and from its own medical advisors (https://www.nieuwsblad.be/cnt/dmf20210127_96172677). In ee election year, this was his sign of “loyalty” to corporate business and the financial oligarchy, a message that he wanted to put as little in their way as possible. Those interests went hand in hand with encouraging and strengthening his far-right constituency “in the streets” throughout his reign, and especially in the year the Corona pandemic broke out. The hard core of the demonstrations against the lockdowns (since April 2020) in the U.S. was the same one that fueled the storming of the Capitol on January 6, 2021 to keep Trump in power with a reactionary coup. By the way but not insignificantly, that coup attempt had widespread support within the Republican party and large parts of the army top, which waited three hours before releasing the National Guard, even though the events could be watched live on TV. The army top probably only let the guards out when it realized that the coup would not succeed. The comparison with 20th-century fascism is more than accurate here, partly to indicate the false flags under which it was and is mobilized: a century ago it was the flag of “socialism” (national socialism that is), in the America under Trump the “anti-COVID-lockdown” fascism was rallying under the flag of “standing up for our freedom.” Both then and now it reflected a political evolution in which big business no longer saw its interests defended by “democratic” forms of government. The events in the US show us where the tendency towards authoritarian “exceptional states”, as we mentioned in point 13, lead. All the more reason to draw a clear line, and not to let the justified criticism of the curfew be abused by criticism (and protest) of the lockdown and other protective measures.

19. In Europe, too, neo-fascist and far-right parties are profiling themselves similarly in their response to the pandemic. (1) In Germany, the far-right AfD, the largest opposition party, spearheaded the protests against the lockdown, but in doing so could count on broader support than their traditionally racist and conservative electorate. During the Corona year, they shelved their “economic nationalism,” since with the spread of a global pandemic, everyone recognizes that international cooperation is needed to overcome it. Instead, they jumped on the bandwagon of “international” anti-lockdown criticism in the interests of the financial oligarchy. However, the facade of “anti-establishment” – for civil liberty – in reality represents the stabilization of the system. AfD is not too shy to label the Corona measures themselves as “fascist“. (2) The political crisis in Italy also teaches us where the extreme right positions itself in this state of exception. As a way out of the political crisis, they resolutely opted for a national union led by Mario Draghi, the “subcontractor” of the euro-technocracy. (https://en.wikipedia.org/wiki/2021_Italian_government_crisis). Based on their outspoken criticism of European austerity policies, most political observers would have expected them to do one of two things: either right-wing opposition – to come out as an absolute victor after another government fall in the foreseeable future – or to enter into a “majority” pact with 5-Star Movement with whom they share their euro-criticism. That this did not happen shows that for them, too, the “stabilization of the financial markets” comes first in the fight against the Corona pandemic. (3) In Spain, in December 2020, former generals of the army top – veterans of the fascist Franco regime and now with the support of the far-right “Vox” – discussed the possibility of a military coup (https://www.nieuwsblad.be/cnt/dmf20201204_96692441). (1), (2), (3) Germany, Italy and Spain are all holding up a mirror to the whole of Europe as to what developments could also be on the agenda in other countries, and what role the extreme right is playing or could play in them.

20. This brings us to the conclusion of this statement. The protection of the stability of the financial markets (point 5.) and the setting aside of the social and liberal achievements in the “state of exception” (point 13.) are interrelated in one and the same logic of the capitalist class. For us, it is impossible, on the one hand, to defend the protection of fundamental rights but, on the other hand, not to denounce clearly and unequivocally the parasitism of the international markets and their Euro-State: those who claim to protect fundamental rights must also be prepared to give priority to the general interest over the interests of the financial markets and big business. We warn against taking criticism of the curfew – as a symbol of that logic – as an opportunity to relax or abolish all protection measures. We reiterate the need to draw a clear line of demarcation: Against curfew? YES. In favor of phasing out the protections? NO. For our fundamental rights and the Constitution? YES. For a pandemic policy in the hands of the haute finance? NO.

Statement from the People’s Committee “Right to Right” in response to 1 year of pandemic policy.