The paper explores how Asian countries deal with the COVID-19 pandemic by comparing the role and limits of democracy and constitutional institutions such as the legislature, executive and judiciary. There are two types of comparison. First, are there differences between Asia and the rest of the world? If so, why? Second, are there differences among Asian countries? If so, why? The aim is to explore the universality and particularities of constitutional principles in the crisis of the COVID-19 pandemic.
The pandemic illustrates the crucial role of science for law and society. The legislator has to rely on scientific findings. Yet, the incorporation of scientific findings in law and at the same time upholding democracy has challenged lawmakers and courts around the globe. If the lawmaker is bound by scientific advice this might restrict people's will. It, thus, challenges democracy. The same holds true for the fight against climate change. In my paper, I will analyze different approaches (developed during the pandemic) to consider scientific findings in law-making, such as e.g. impact assessments or evaluations of laws. I will test whether these approaches might work in the context of climate change. If that proves true, such approaches could help to achieve “eco-democracy”, a democracy aiming at achieving the energy transition.
To grapple with the underlying link between democratic unbalanced performance and dire anti-pandemic policies, two central issues deserve our utmost attention. On the one hand, it is important to strike a clear-cut distinction between ‘emergency’ and ‘exception’. In terms of analytical accuracy, conflating or misrepresenting both ideas has usually ended up jeopardizing people’s rights and freedoms. On the other hand, it is important to analyse how a flawed constitutional design and/or some decadent civic practices have undermined efficient responses, not to mention timely controls during an emergency. When unfettered executive leadership (as happens with consolidated “hyper-presidential” systems) takes place under extraordinary pandemic circumstances, ‘democratic backsliding’ looks like an inevitable self-fulfilling prophecy.
What role do online platforms play in managing and governing information during the pandemic? Chinese platforms cooperated substantially with the governments’ message (and message control) on the coronavirus, but also US-based platforms like Twitter and Facebook that had employed a hands-off approach to certain types of disinformation in the past invested considerably in the tools necessary to govern online disinformation more actively. Facebook, for instance, deleted Facebook events for anti-lockdown demonstrations while Twitter had to rely heavily on automated filtering (with human content governance employees back at home). This contribution will assess these practices, their impact and permanence in light of the author’s research on the important role of intermediaries as normative actors, including their establishment, through terms of service and content governance practices, of a private order of public communication.