Introduction & List of Country Reports

As states of emergency are declared throughout the world in response to the spread of COVID-19, concerns arise as to the use – and potential abuse – of power in a time of crisis. In this Symposium, comparative country reports examine the use of emergency powers from the perspective of democracy, human rights, and the rule of law.

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Hungary’s Orbánistan: A Complete Arsenal of Emergency Powers

On 23 March 1933, an act was adopted in Nazi Germany in response to the “crisis” of the Reichstag fire to enable Hitler to issue decrees independently of the Reichstag and the presidency. Article 48 of the constitution of the Weimar Republic made this act possible. Eighty-seven years later, on 23 March 2020, the so-called 'Enabling Act' was put before the Hungarian Parliament. This was drafted under emergency constitutional provisions in Articles 48-54.

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Canada the Good?

Canada is in almost full emergency mode in its bid to flatten the pandemic curve. But so far the federal government has not declared a federal state of emergency in terms of the Emergencies Act (1985), although it has discussed publicly the pros and cons of taking this step and has been urged to do so on the basis that such a declaration would enable a nationwide testing program. There are four main reasons for this hesitation to declare a national state of emergency.

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Lockdown Bubbles through Layers of Law, Discretion and Nudges – New Zealand

New Zealand’s governmental response to Covid-19 has been, so far, dramatic and legally curious. As a South Pacific island nation, Covid-19 was late to infiltrate New Zealand, allowing the government time to shape its response in the light of experiences elsewhere. At the first sign of community transmission, the government moved to lockdown the country – shutting the border, keeping people in their household ‘bubbles’ and closing businesses other than those deemed essential. To effect the lockdown, the government relied on some ordinary legal powers and a handful of reserve emergency powers, supplemented by strong messaging from a charismatic prime minister. While providing a stopgap solution for the sudden move, the current legal framework is bit soft and fragile in places. It seems likely the government will move to sharpen and fortify the legal basis for the lockdown and put in place a more bespoke and enduring solution.

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Israel’s Perfect Storm: Fighting Coronavirus in the Midst of a Constitutional Crisis

A notable characteristic of the Israeli management of the crisis is the growing reliance on the military and on national security agencies, with respect to both types of measures. The sections below will examine the measures taken, the concerns these measures raise, and the steps taken to address such concerns.

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Authoritarianism Without Emergency Powers: Brazil Under COVID-19

One of the few heads of state that insist on denying scientific and epidemiologic facts concerning the spread of COVID-19 is the Brazilian President Jair Bolsonaro. For Bolsonaro, politics comes before truth. Since the beginning of the pandemic of COVID-19, he is disseminating doubts on social media (although Twitter, Facebook and Instagram deleted some of his posts) to galvanize his radical supporters while creating a distraction for his government’s inability to implement social and economic aids to the low-income families affected by social distancing. For the moment, the president has failed to gather the public support that he needs for an extension of the emergency powers of the executive, like Orbán did in Hungary. But his authoritarian discourse has not disappeared from the horizon. On 31st March 2020, for instance, Bolsonaro celebrated the anniversary of the Coup of 1964 as a “great day for freedom”.

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Italy’s Coronavirus Legislative Response: Adjusting Along the Way

With one of the highest death rate by population worldwide, Italy has undertaken a series of necessary but very intrusive measures resulting in strong limitations of fundamental rights and liberties. The Rule of Law (ROL) is considered to be “the basis of all genuine democracy” (Statute of the Council of Europe); and in times of emergency, respect for the ROL and adherence to its principles should still prevail. So, what safeguards have been put in place to ensure that the Italian legislative response to COVID-19 provides effective protection of public safety and complies with core Constitutional principles, international law obligations and the ROL?

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Underreaction in a Time of Emergency: America as a Nearly Failed State

Not surprisingly, those of us who write about emergencies have been far more concerned about overreaction than underreaction and we have been far more concerned about politically caused emergencies rather than natural disasters. History is littered with the cautionary tales of overreaction to politically caused emergencies. But the dangers of state failure evident in underreaction are underestimated.

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From One State of Emergency to Another – Emergency Powers in France

2 years and less than 5 months after the end of the two-year state of emergency triggered on the wake of the 2015 terrorist attacks in Paris, a brand new “state of health emergency” was activated in France on the 23rd March to cope with a new attack led, this time, by a small and invisible enemy, Covid-19. The so-called “state of health emergency” currently constitutes the legal framework and basis of the measures in force to cope with the epidemic, including nationwide lockdown. What is this new regime? Is it a threat to individual freedoms? What are its limits and guarantees? Was it legally necessary?

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Bulgaria: COVID-19 as an Excuse to Solidify Autocracy?

On 23 March 2020, Bulgaria’s Parliament enacted a Law on the Measures and Actions during the State of Emergency Announced by Parliament on 13 March 2020 (hereby referred to as Law on Emergency for brevity). This was the second attempt to enact this piece of legislation after Bulgaria’s President vetoed some of its provisions. This new Law entered into force retroactively on 13 March 2020 when Parliament declared a state of emergency (izvunredno polojenie) in light of COVID-19. The peculiar situation that Parliament can declare a state of emergency, define its scope and provide guidance on the measures which could be taken later, and apply the law retroactively to justify measures and actions taken by the executive in the period before defining these terms is troublesome from a rule of law perspective. Moreover, some of the measures go beyond healthcare concerns and create opportunities for arbitrariness and human rights violations. B

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