Conference Report “COVID-19 and the Constitution – Constitutional Democracy in Times of Crisis” (2020 Korean-German Online Conference)
This post reports on the online webinars recently held under the theme of “COVID-19 and the Constitution – Constitutional Democracy in Times of Crisis” with invited scholars from Korea and Germany. Unlike the previous annual international conferences held at Korea University since 2014, this year’s conference was held online due to the Corona pandemic. The webinars took place twice, a week apart, covering the constitutional problems raised amidst the Pandemic.
On 18 November 2020, at 5 pm, the first session of the conference has started. The session was organised and cooperated by Konrad-Adenauer-Stiftung, Korea University School of Law, and Constitutional Academic & Professional Association. The webinar began with the opening speech by Mr Thomas Yoshimura, Resident Representative of Korea Office at Konrad-Adenauer-Stiftung and welcoming speech by Professor Dr Hyo-Jil Ahn, Dean of Korea University School of Law.
Professor Dr Anna-Bettina Kaiser (Humboldt-Universität zu Berlin) and Professor Dr Seon-Taek Kim (Korea University) each gave a presentation on the theme “Covid-19 and the Constitution of Exception (Ausnahmeverfassungsrecht)”. Professor Kaiser gave an overview of the conceptual history of the state of exception and state of emergency in Europe and explained that the legal basis of the state’s response to the Covid-19 pandemic is principally based on laws enacted by the parliament, instead of the Basic Law, in which no emergency power relevant to public health crisis exists. She viewed the administrative regulations delegated from the law, despite serious and unprecedented infringement of fundamental rights, as restrictions within the constitutional framework, not as exceptions to the constitutional order. Therefore, she argued that Carl Schmitt’s concept of the state of exception could not apply to the current situation in Germany. Professor Kim pointed out that the South Korean government also responded to the Covid-19 pandemic with laws, without invoking emergency powers provided in the Constitution, since the current crisis did not meet the requirements exactly. He elaborated on various compulsory measures taken by the central and local governments according to the Infectious Disease Act. He recognised that the state’s response to the pandemic has been quite effective for the last months but pointed out that such good results do not justify the means. In this regard, he suggested a different, or more relaxed, the standard of review, instead of undermining the proportionality principle to justify the measures amid uncertainties.
Under the second theme “Covid-19 and Fundamental Rights”, Professor Dr Michael Brenner (Friedrich-Schiller-Universität Jenna) and Professor Dr Seung-Ju Bang (Hanyang University) each gave their presentations. Professor Brenner indicated that German courts made inconsistent decisions on fundamental rights restrictions depending on the situation during the pandemic. He claimed that proportionality should be deployed to fundamental rights review by the courts even during the pandemic, adding it could be applied with flexibility depending on time, in other words, according to the level of uncertainty. Finally, he assessed the proportionality standard that has been going through the stress test under the corona crisis. Professor Bang also commented that the Korean government has been handling the current situation quite well through the laws which were promptly amended in responding to the Covid-19 pandemic, despite a wide range of fundamental rights and freedoms being severely curtailed. He suggested that the state administrative body should find a more effective framework to protect the right to life and health of a person against others.
Mr Jae-Young Kim moderated the plenary discussion for about 50 minutes. PD Dr Sven T. Siefken (Martin-Luther-Universität Halle-Wittenberg), Professor Dr Zin-Wan Park (Kyungpook National University), Research Professor Dr Jeong-In Yun (Korea University), and Dr Gero Kellermann (Akademie für Politische Bildung Tutzing) participated in the discussion as discussants. All participants exchanged thoughts and insights on the topics such as ‘the role of public opinion and experts on reviewing restrictions on fundamental rights’, ‘pros and cons of declaring the state of emergency in responding to Covid-19’, ‘problem of swaying decisions by the courts in Germany and doubts on proportionality standard’, and ‘social problems caused by the pandemic, but not on the surface yet’ and so on.
The second session of the conference, co-organised by Konrad-Adenauer-Stiftung, Korea University School of Law, and Party Law Research Center of Korea University, was held a week later on 25 November 2020 at 5 pm via a zoom webinar. The webinar began with an opening address from Professor Dr Seon-Taek KIM, and welcoming speeches by Mr Thomas Yoshimura and Professor Dr Won-Lim Jee (Director, Legal Research Institute of Korea University).
Mr Jae-Young Kim from the Party Law Research Center at Korea University moderated the presentation and the subsequent discussion. The first theme for this day was “Covid-19 and Democracy.” PD Dr Sven T. Siefken and Research Professor Dr Jeong-In Yun each made their presentations. Dr Siefken examined the political decision-making process amid the Covid-19 crisis in Germany from a political science perspective with a focus on three dimensions such as ‘federal and state relations’, ‘science and politics relations’, and ‘government and parliament.’ He underlined the well-coordinated cooperative relationship between the federal and states and the positive aspect of experimental federalism. Although many people doubt the role of the opposition and the function of the parliament during the pandemic, using statistical data, Dr Siefken confirmed that parliamentary activities, except for deliberation, have not been reduced. Dr Yun presented on the effects of the Covid-19 crisis on democracy with instances such as ‘lack of deliberation in parliament’, ‘postponement of the election’, ‘reduced role of the opposition and parliamentary oversight’, and ‘requirements for emergency measures, eg. exceptionality, time limit, and proportionality’. In the end, she emphasised that even in a crisis where we generally acknowledge an “hour of the executive (Die Stunde der Exekutive)”, this should not give way to the hour of the executive only.
Dr Gero Kellermann and Professor Dr Zin-Wan Park each presented on the theme “Covid-19 and Separation of Powers”. Dr Kellermann explained that the concentration of power in the hands of the executive during the pandemic in Germany was based on the law, for instance, Articles 28, 32, and 5 of the Infektionsschutzgesetze. He elucidated the legal problems of each provision and eventually commented that we should be able to assess every single state institution that has functioned in balance with each other when we reflect the current situation in the future. Professor Park observed how both countries have done well with the rule of law and democracy in the time of crisis from a comparative perspective. He compared the cooperation between the federal and state governments under federalism in Germany and between the central and local governments under the unitary state structure in South Korea and pointed out the positive aspect of the bicameral system in Germany in terms of a greater chance of deliberation in the decision-making process. He also emphasised that the executive branch should make efforts to take measures in line with the rule of law and proportionality and under the separation of powers to keep constitutional principles alive in the post-Covid-19 era.
After the presentations, a free discussion was conducted. The speakers of the first session, Professor Dr Seon-Taek Kim, Professor Dr Seung-Ju Bang, Professor Dr Anna-Bettina Kaiser, and Professor Dr Michael Brenner, also participated as discussants. All participants discussed the topics freely, and sometimes answered questions delivered by the moderator from the registered audience. They had a vivid and stimulating discussion on ‘actual assessment of the reduced role of the parliament during the pandemic’, ‘how to communicate with the citizens more effectively regarding corona crisis’, ‘how to activate the function of the opposition and minor parties at the moment’, ‘comparison between measures based on the Infectious Disease Act of South Korea and measures provided in the recently amended law in Germany’, ‘positive aspects of different measures which were taken by each state government under the federal structure’, ‘comparison of the interests and reactions between the federal and state government in Germany to deal with the economic crisis and public health crisis’ and ‘the last non-derogable constitutional values while in a grave crisis.’ After around the 50 minutes discussion, Mr Thomas Yoshimura closed the webinar with a concluding remark.