The Extreme Right as a Defender of Human Rights? Parliamentary Debates on COVID-19 Emergency Legislation in Slovakia

Round 1

Reviewer 1 Report

• The article mentioned that its main aim is to analyze legal restrictions on human rights during the pandemic. However, it is not clear which method did the author choose. It is also a general issue regarding the piece that political scientific and legal scholar reserach methods are compined without a clear declaration of the choice. It would be helpful if the author bring clarity on the method of his/her choice and stick to it. For the reviewer it would be the best option to choose a legal scientific approach, however if the author may accept it the entitlement of political arguments (such as the standpoints of MPs) should be revised.
• The piece uses (or at least refers to) various definitions and models from the theory of state exception, however the correct using of these are questionable. For example for the reader it seems that the Slovakian emergency model is a legislative one although (if this is the case) it should be described by the author why and how this model works in a constitutional and legislative level as well. It is not clear if the article uses the mentioned categorization at all (constitutional, legislative and executive models were first used by Ferejohn and Pasquino) so it would be important to find the exact label. It seems that parliament and executive are the relevant emergency power (which could mean that we are not talking about a pure legislative model) however the task of these bodies during exceptional situations are not clear. Maybe in a footnote it could be clarified.
• The role of constitutional court during emergencies is also should be clarified especially if there is role for this body to preserve human rights during crisis.
• It is also unclear whether 'state of emergency', 'state of crisis', and 'state of pandemic crisis' refers to the same constitutional or legal institution or these are specifically regulated emergency regimes? It would be also helpful to describe the state of emergency system and the relevant regulative elements at least in footnotes. It is still a question that on the one hand what kind of emergencies regulated in the constitution (if there are any) and which are the manifests of 'legislative emergency model'? It would be important to understand what constitutional guarantees are involved to prevent abusive use of energency powers especially regarding human rights.
• The author compared the country (Slovakia) to Poland and Hungary, however the piece lacks this comparism in relation with emergency measures. For example it would be interesting to compare the Hungarian 'Enabling acts' with the Slovakian one; this latter mentioned in the article. 

Comments for author File: Comments.pdf

Author Response

I would like to extend my high appreciation to Reviewer 1 for a close engagement with my manuscript and many helpful comments. The main points of the Reviewer in my reading revolve around (1) an invitation to engage more intensively with the legal framework surrounding the states of emergency in Slovakia and, in connection to it, the (2) localization of this framework in relation to the developments in the region, as well as (3) the clarification of the epistemology of the manuscript.

(1) I would begin my response by clarifying that I understand the aim of the article to be more modest than (generously) attributed to it by the Reviewer: rather than analysing ‘legal restrictions on human rights during the pandemic’, which would be a gargantuan task even in the Slovak context in the framework of a single article, it examines the ‘justifications introduced for the actual or potential extension of legal restrictions on human rights as debated in the legislature’ (lines 50-51 of the original manuscript). The abstract put the research question as follows: ‘how human rights were discussed by Slovak parliamentarians in relation to key COVID-19-related emergency legislation’. That being said, I aim the analysis of the justifications to contribute to the broader literature on the role of parliaments during emergencies (particularly the responsibility of democratic parliamentarians to explicitly invoke human rights considerations when deliberating on emergency measures inducing human rights restrictions) as well as apply selected constitutional theories (in particular juxtaposing Schmitt with Rossiter, Schmitt's approach being incompatible with an approach to emergencies that ensures human rights protection). Thus, the article requires some engagement with the legal framework as such. This has now been provided in Section 3, alongside a brief discussion on the various states of emergency and the role of the Constitutional Court. Unfortunately, English-language sources to refer the reader to on this are limited, and I would prefer to avoid an impression that this article could supplement a systematic legal analysis of the various states of emergency in Slovakia, which is why I kept the presentation to be supportive of the main analysis, rather than offer a self-standing contribution.

To this discussion, I have also added the distinction between the models of the state of emergency by Ferejohn and Pasquino, as referred to by the reviewer. As I indicate there, Slovakia might show the limitations of this classification, because of the relatively low threshold required for amending the constitution (with the constitution-amending body overlapping with the legislature, i.e. the National Council). Thanks very much to the reviewer for spotting the confusion caused by the concepts of ‘state of emergency’, ‘state of crisis’ and ‘state of pandemic crisis’. It is tied to the uncertainties associated with the translation of one of the four states of emergency envisioned by Constitutional Act No. 227/2002 Coll. as either ‘state of emergency’ or ‘state of crisis’. I have now opted to use ‘state of emergency’ consistently throughout, and clarified that the ‘state of pandemic emergency’ (formerly mentioned as ‘state of pandemic crisis’) is a subcategory of the ‘state of emergency’ introduced by the amendment deliberated in December 2020 and covered in the empirical analysis.

(2) With respect to the invocation of references to Hungary and Poland and the comparative ambitions of the manuscript: I used these to highlight that Slovakia is less discussed in the literature than these two countries which attract scholarly attention due to the deterioration of democracy. However, there is no prima facie reason to avoid focusing on concerning trends in Slovakia as well, which may be exacerbated by the developments in the other members of the Visegrad Four countries. My second reference to Hungary and Poland was in Section 3 to highlight the seemingly unintentional motivations behind the illiberalism of the legal restrictions. I agree with the Reviewer that the point would need more development. As it was not integral to the main focus and arguments highlighting the extent to which the extreme right gained monopoly as rhetorical defenders of human rights in the parliamentary discourse, I opted for removing the sentence in the revised version. I agree that a comparison of the December 2020 amendment with the Enabling Acts in Hungary would be useful, and it could be conducted in future research (including of debates in the Hungarian parliament on the adoption of the Enabling Acts). I think retaining, in this study, the focus on which partisan actors rhetorically benefitted from the crisis conditions in Slovakia is useful, as it highlights the significance of democratic actors providing responses that are in harmony with the (given) country’s fundamental rights commitments.

(3) Last but not least, on the epistemology of the manuscript (i.e. whether it belongs to law or to political science). I am of the position that the interaction between legal and social scientific approaches is useful for generation of new knowledge, and that position is put to use in the methodology of the manuscript. While the empirical findings emerge from a contextual analysis of parliamentary discourse, they are informed by considerations from constitutional theory and legal doctrine that underpin the reasons why this discourse matters for the public trust in democracy (that the image of the extreme right being the only actor to stand up for fundamental rights, if only rhetorically, undermines), but also for the development of the law (whereby, due to neglecting thorough justifications based on fundamental rights, more opportunities emerge to undermine or limit the protection of those rights in Slovakia). I have expanded on this epistemology in Section 4 of the manuscript, coming closest to socio-legal studies that have since long engaged in ‘building bridges’ between doctrinal legal studies and social sciences (especially political science and sociology). In my reading, this is part of the contribution and novelty of the manuscript, and underscores its suitability for the aims and scope of Laws in ‘bridg[ing] traditional boundaries’ (and might also speak to political scientists working on parliamentary studies). However, I would like to thank the Reviewer for raising this issue, as I think it may be a common one in response to this manuscript, and the clarification now added might help the orientation of the readers.

The language of the manuscript was reviewed once again with several phrases and sentences amended to make the text a smoother read.

[The specific comments by the Reviewer provided in a PDF file have been responded to directly in the PDF file attached.]

Author Response File: Author Response.pdf

Reviewer 2 Report

Well written essay. The argument is good, even if it would have been useful to deepen the Slovak constitutional data and policies from a comparative point of view. The judgment, however, is positive.

Author Response

Many thanks for the review.

I agree that further comparative study would be useful, and I specified in the conclusion (discussion on further research) what questions comparative analyses could address taking the findings of the article as their basis. For analyzing parliamentary discourse, it is necessary to use original empirical data, as I did in the Slovak case. Collecting such data for this article for other countries (even for those where there is no language barrier) is not feasible. However, I hope that the article may serve as an impetus for future studies of the (ab)use of references to human rights and democracy by parliamentarians as well as the different conceptions of democracy that parliamentarians more or less implicitly utilize.

The Slovak case alone shows the dangers of rushed approval of restrictions on rights without in-depth justifications during an emergency, as this provides an opening for extreme right actors to position themselves into the role of ‘human rights defenders’.

The language of the manuscript was reviewed once again with several phrases and sentences amended to make the text a smoother reading.

Reviewer 3 Report

An interesting and very novel approach to the analysis of the quality of parliamentary oversight during an emergency. Well examined, supported and original in both analysis and argument. Excellent analysis on developments within Slovakia with regards to the COVID-19 pandemic response.

Few small notes:

- Confirm/qualify novelty of argument that this is  (ln 50-51) "This article offers one of the first analyses of the justifications introduced for the actual or potential extension of legal restrictions on human rights as debated in the legislature."

- Do confirm definition of South Korea, Taiwan and Singapore (ln 352-353) as the implication is these represent democratic and illiberal regimes.

- word missing ln 567 - "allowing extreme political actors to appropriate..."

Author Response

Many thanks for the review.

The specific point on the novelty of the argument was incorporated, by pointing to a few studies that have conducted a similar analysis (Bolleyer and Salát 2021, Griglio 2021, Kovanič and Šebíková 2021, Louwerse et al. 2021), but either with less systematic approach to data collection or with results available only domestically to Slovak (or Czech) audience. I am not aware of any other sources with a similar focus available so far (upon conducting another check of contemporary sources), which makes me sustain the claim of the novelty of the manuscript’s focus.

I have highlighted the distinction between South Korea and Taiwan on the one hand and Singapore on the other hand as democratic regimes as opposed to an illiberal regime. While these countries are not in the focus of the analysis, the distinction resembles standard reviews of democratic quality, such as by Freedom House or the Varieties of Democracy Institute.

The language of the manuscript was reviewed once again with several phrases and sentences amended to make the text a smoother reading.