By Sune Klinge*

Like many other countries across Europe, the COVID-19 pandemic has exposed legal weaknesses in Denmark’s pandemic preparedness planning. The new emergency laws restricted people’s assembling in larger groups or visiting restaurants and bars. Services and religious ceremonies were shut down.

Danish citizens have largely accepted the new restrictions to contain the pandemic, even if some of those had been at the edge of a constitutional conflict.[1] It would be interesting to detail the new national restrictions stemming from the second wave of COVID-19. Yet, in this post, I will shed light on how the Danish government has responded to the coronavirus outbreak. This alternative perspective considers the role of populist actors in shaping the political and public debates—in ways both visible and ‘hidden’—and why there is a genuine need for a constitutional reform in Denmark enhancing the human rights catalogue and protecting it from populism.

Legislative amendments in COVID-19-related crime

To fight the pandemic, the Danish government amended the Penal Code to allow for a (much) harsher sentencing if a crime is found to be related to the COVID-19 pandemic.[2] The amended Penal code section 81 d stipulates that ‘if the offense is connected with the COVID-19 epidemic in Denmark, the punishment can be increased to double.’[3]

The foreseeability of the amendment of the penal code raises an important question: how does one determine the sufficient connection of a crime with the COVID-19 pandemic in order for a person to face double punishment? Such a connection becomes even more problematic when analysed both through the lenses of populism and in connection with another legislative initiative that added an extra layer of charges for criminal foreigners. The latter, proposed by the radical right-wing parties in Parliament, states that any unsuspended prison sentence under the new COVID-19 clause would lead to foreigners’ expulsion from Denmark. [4] The proposal to extend the expulsion rules (and to include citizens living in Denmark for over five or nine years, depending on the crime committed) was put forward by The Danish People's Party (‘Dansk Folkeparti’), the main populist political actor in Denmark.[5]

The purpose of combating COVID-19-related crimes was consequently turned into supporting one of the main political topics of the radical right-wing populist parties: that of stressing Denmark’s characteristic as a non-immigrant country. Thereby, extending the period for foreigners not forming a part of the Danish society. The Danish People's Party and the other right-wing populist party in Denmark used the COVID-19 crisis to emphasize that they were unwilling to transform Denmark into a multi-ethnic society. That also boosted the ‘them’ versus ‘us’ rhetoric, typical of populist actors.[6]

Before the COVID-19 amendment, the law and regulations already allowed the country to expel foreigners sentenced to unsuspended imprisonment. That is, when they have committed a serious crime and have lived in Denmark for less than five or nine years, depending on the crime committed, cf. sections 22-23 of the Aliens Act. The amendment provided a legal basis for the expulsion of a foreigner regardless of their residence in the country and their basis of residence (unless this would be contrary to Denmark's international obligations cf. section 26).[7]

Consequently, the amended extension of the expulsion rules would only affect persons who had already been living in Denmark for a longer period than five or nine years, depending on the crime committed. Foreigners living in Denmark for a shorter period could already be expelled if they had been sentenced to a suspended or unsuspended sentence. 

Against this background, the Ministry of Justice assessed that the proposed extension of the expulsion rules would only have a very limited practical significance.[8] Data from the Danish National Police shows that only a few committed crimes related to the COVID-19 crisis.[9]

On these grounds, it is fair to portrait the legislative initiatives (as the left-wing parties did) as ‘symbolic’ measures, unrelated to the purpose of the proposal combating COVID-19 crimes.[10]

Looking ahead: Constitutional reform to combat populism

What to do about populist legislative proposals? A heated debate about a constitutional reform is going on in Denmark. A headline reads: ‘Can we let ourselves be ruled by the dead?’[11] The explicit statement is convenient. The Danish Constitution[12] has not been amended since 1953. 

To combat populist influence on legislative agendas, one could suggest a constitutional reform, since the 1953-constitution has vague protections against populist parties. The academic debate already considers that issue: “One might well ask whether our system is strong enough to handle the populist movements seen in Europe if they fully broke out in Denmark”[13]

The problem with an older Constitution without an updated human rights catalogue is that it leaves more room for interpretation by the political institutions through their political practice. In other words, the less restraints in the constitution, the freer the politicians are to legislate. 

I can make a second point in combatting populism. While a model of separation of powers as the Danish, with quite reluctant courts, might work in an ideal political setting based on values such as the rule of law, good governance, transparency, democracy, and human rights, the situation might worsen if the political landscape changes and anti-human rights legislation on minorities and migrants are adopted. [14]Examples of populist influence in regard with asylum seekers, migrants, and integration had already been spotted before the COVID-19 crisis broke out. 

A constitutional reform is indeed needed. But in doing that we should watch out for the populist influence. As seen in the ongoing fragile constitutional reform debate in Denmark, populism has already been influencing the debate by portraying a reform as ‘strongly left-wing legal activism,’ that ‘only the extreme value-based political left will benefit from.’[15] This reflects a populist rhetoric against constitutional reform. Not only does it label legal scholars and experts as strongly left-wing, but also suggests that the courts should not play a bigger role as protectors of fundamental rights, since that would mean to enter the political arena. Enforcing the human-rights catalogue will limit that political discretion—it is as simple as that—by introducing minimum standards of compliance. 

An example of a more ‘hidden populism’ reflecting the ‘them’ versus ‘us’ rhetoric was the national face veil ban of 2018. It included a ban not only on the use of Burqas but also on ‘anyone who publicly carries a garment that hides his face’. Non-compliance is subject to a fine. The ban ‘includes all, regardless of religious or political affiliation’ in order to promote and facilitate social interaction and coexistence. That policy followed some populist political strategies at the European level and debates in France, the Netherlands, Germany, and Belgium,[16] which supported the ban by using the proportionality test of the European Court of Human Rights, according to which the ban preserved conditions for ‘living together’.[17]

With the pandemic requiring that people wear a facemask, the argument of ‘living together’ could be tested in the courts (bearing in mind that the national legislation allows face covering for legitimate purposes). 

While the academic debate about populism usually focuses on Eastern and Southern Europe, this post attempted to clarify how Danish populism plays out, even if that has not been labelled as such in the national debate; one can find several references to populist narratives endorsing ‘the virtuous people’ while blaming ‘the dangerous enemies’ and the ‘others.’  

No one knows when an urgently needed human-rights catalogue will be updated in Denmark. Legally, that would enable the national courts to contribute to developing a common constitutional space, as suggested by The President of The Court of Justice of the EU, Koen Lenaerts:

‘general principles seek to create a ‘common constitutional space’ where EU and national law engage in a dynamic dialogue which gives rise to a mutual influence between the two levels of governance. Hence, as instruments of constitutional dialogue, general principles facilitate the constant renewal of the EU legal order, epitomizing the ‘EU’s living constitution’.[18]

Either way—now or later—we must continue relying on the international obligations and standards set by the European Convention of Human Rights and the European Charter of Fundamental Rights as the bar to combat populist proposals. Not only the outspoken but also the hidden ones.

*Sune Klinge (sune.klinge [at] jur.ku.dk) is an Assistant professor, tenure track, in constitutional law at the Centre for European and Comparative Legal studies (CECS) at the University of Copenhagen. Sune defended his PhD in 2019 entitled ‘Horizontal effect of EU-Directives and fundamental rights—a legal analysis of legal certainty and the consequences for the member state’. Sune is also a member of the Jean Monnet Network called “BRIDGE” which is a multi-disciplinary academic network investigating current European Union crises and assessing the European Union’s governance responses.

Endnotes

[1] For more information about the Danish legislative countermeasures see, and for a more in-depth analysis see COVID-19 and Emergency laws in Denmark Klinge, S., Krunke, H., Nyborg, A. F., & Rytter, J. E. (2020). Under review, in Svensk Juristtidning.

[2] Act no..349 of 2 April 2020 and Art. 81 (d) of the Danish Penal Code

[3] See more in the preparatory work: 

https://www.ft.dk/samling/20191/lovforslag/L157/spm/16/svar/1646826/2170584/index.htm

[4] cf. Article 22, no 9, of the Danish Aliens’ Act

[5] See Christiansen, Flemming Juul (2016). ”The Danish People’s Parti – Combining cooperation and radical positions,” in Tjitske Akkerman, Sarah L. de Lange, Matthijs Rooduijn (eds.), Radical Right-Wing Populist Parties in Western Europe - Into the Mainstream? London: Routledge. But also supported by the other new radical right-wing parties as ”The New Right” (Nye Borgerlige) https://nyeborgerlige.dk/corona-kriminalitet-skal-give-udvisning/

[6] See also Bergmann, Eirikur (2017). Nordic Nationalism and Right-Wing Populist Politics. London: Palgrave Macmillan, and an in-depth analysis of the as a radical right-wing party is preformed in a forthcoming publication under the European Union (EU) Horizon2020 project DEMOS, by Krunke and Klinge. 

[7] Cf. Article 22, no 9, of the Danish Aliens’ Act

[8] https://www.ft.dk/samling/20191/lovforslag/L157/spm/23/svar/1647609/2171908/index.htm

[9] https://www.dr.dk/nyheder/indland/overblik-saadan-har-corona-kriminelle-udnyttet-krisen-i-danmark

[10] https://www.ft.dk/ripdf/samling/20191/lovforslag/l157/20191_l157_betaenkning.pdf, p. 2-4, The proposal to extend the expulsion rules (and include citizens how have lived in Denmark for more than 5 and 9 years) was put forward by The Danish People's Party (‘Dansk Folkeparti’) which is main populist political actor in Denmark. See more Christiansen, Flemming Juul (2016). ”The Danish People’s Party – Combining cooperation and radical positions,” in Tjitske Akkerman, Sarah L. de Lange, Matthijs Rooduijn (eds.), Radical Right-Wing Populist Parties in Western Europe - Into the Mainstream? London: Routledge. And also supported by the other new radical right-wing parties as ”The New Right” (Nye Borgerlige) https://nyeborgerlige.dk/corona-kriminalitet-skal-give-udvisning/

[11]https://www.berlingske.dk/politik/topjurister-udpeger-huller-i-landets-vigtigste-lov-skal-vi-lade-os-regere

[12]  nr. 169 af 5. juni 1953, Danmarks Riges Grundlov 

[13]https://jyllands-posten.dk/debat/blogs/mortenjensen/ECE12489932/aendre-grundloven-kun-yderligtgaaende-partier-stoetter-den-slags-saa-nej-tak/

[14] Krunke H and Baumbach T 2019. ‘The Role of the Danish Constitution in European and Transnational Governance’, in Bardutzky S & Albi A (eds.), The Role and Future of National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. National Reports. Springer, pp. 269-313.

[15] https://jyllands-posten.dk/debat/blogs/mortenjensen/ECE12489932/aendre-grundloven-kun-yderligtgaaende-partier-stoetter-den-slags-saa-nej-tak/

[16] On the Danish face veil ban, see: Malthe Hilal-Harvald, The Multilocal Genesis and Migration of the European Face Veil Bans, pp. 150-151

[17] Belcacemi and Oussar v Belgium, para. 61

[18] Koen Lenaerts & José A. Gutiérrez-Fons: »The constitutional allocation of powers and general principles of EU law«, in Common Market Law Review vol. 47, no. 6 (2010), s. 1630.