This article belongs to the debate » COVID 19 and States of Emergency
26 May 2020

States of Emergency

Introduction

The fifty days of the ‘COVID-19 and States of Emergency’ Symposium covered the height of the global legal reaction to the pandemic, offering a snapshot of countries in collective crisis. It began with a call for a global conversation on the kind of legal norms which should govern the situation of worldwide pandemic. This final contribution aims to trace the central themes, questions and issues raised by the Symposium. It considers constitutional safeguards on a ‘state of emergency’, and whether this is preferable to the use of ordinary legislation in managing a crisis. It examines the dangers of executive action, and whether countries have been successful in limiting the potential for abuse, as well as preventing or sanctioning it. It examines how states have struggled to maintain some degree of legislative and judicial normality, while other states have given it up entirely. Finally, it identifies the most successful approaches adopted, and the most detrimental. In doing so, it aims to form part of that global conversation which seeks to identify the most concerning legal developments in a global emergency, but also to advocate for the best practices emerging worldwide.

States in Emergency

Extraordinary Powers in Ordinary Law

Debate has raged around the degree to which countries have been prepared for the threat of a pandemic, let alone one unparalleled in its current scale and impact. In the initial phase of the crisis, most states responded with government decrees or administrative decisions – sometimes with questionable legal basis. A question is whether countries would benefit from stronger legal basis for action.

A number of states have relied on ordinary legislation to manage the crisis without resorting to emergency powers, even where such powers are available in the legal or constitutional framework. The reasons have varied: either the crisis did not constitute an ‘emergency’ within constitutional provisions; or there were sufficient powers and/or mechanisms within ordinary legislation, and thus no need to resort to emergency powers. Nevertheless, it should be underlined that declaring a state of emergency does not indicate a potential abuse of power, any more than the exclusive use of ordinary legislation means that there is no abuse. Many states that have used ordinary legislation avoided the scrutiny and conditionality which normally attaches to the use of emergency powers. Others by contrast are concerned with the negative historical connotations in light of past use of emergency powers, and so have used ordinary provisions that might be even less suitable.

An important point of consideration is whether the use of pre-existing legislation reveals ordinary powers to be extraordinary in their scope. Many countries have relied on Health Acts to provide the legal basis for sweeping powers for detention, quarantine, and even lockdown. A tangible concern is the interpretation of ordinary legislation to the effect that it allows action that ought to have been held ultra vires. For example the UK’s Public Health (Control of Disease) Act 1984 allows a Minister to make a ‘special restriction or requirement’ ‘on where [a person] goes or with whom [a person] has contact’. To interpret these sections as authorising a nationwide lockdown of the entire population is questionable at best.

In many cases, the Health Acts initially relied upon were promulgated in very different times (eg Nepal’s 1964 Infectious Diseases Act; and India’s Epidemic Diseases Act 1897). To provide legal basis for the unprecedented nature of restrictions, many states amended existing public health legislation. The speed of amendments in some countries however afforded extraordinarily little time for meaningful review (from 4 days in the UK, to only 12 hours in Denmark) and the quality of the law can suffer. Following a storm of protest from legal scholars, lawyers and judges for the secrecy and lack of accountable input, the Norwegian government, radically revised its initial draft law on action concerning the coronavirus. Finland offers an example of best practice for the pluralistic review of constitutionality and rights-compliance of executive decrees through standing committees and engagement with external legal and constitutional experts. Finland also deserves special mention for inviting public scrutiny of decrees through real-time posting on a legal blog.

While emergency necessitates urgent action, there is always capacity for subsequent review and reform. On this point, Italy is exemplary. The country suffered one of the highest mortality rates in Europe. It was among the first to introduce restrictive measures, and the second globally behind China to introduce a national lockdown. The initial measures diverged at local, regional and national level, and were introduced so quickly and haphazardly as to create ‘regulatory and legal chaos’. However, this changed: responding to the criticism from academics, lawyers and the media directed at earlier provisions the Italian government reformed the legal measures to include clear constitutional safeguards and protections for the rule of law. This trend echoed across the EU (with the notable exception of Hungary and Poland): initial legal shortcomings were subsequently rectified.

It is highly probable that this decade will witness numerous constitutional amendments and legislation governing health emergencies to take account of global crises, and some key insights may be gleaned from collective experience. Ongoing stakeholder engagement – involving external constitutional and legal experts – and readiness to reform creates better-quality law.

Wherefore a ‘State of Emergency’?

Many countries, though not all, have declared a state of emergency in response to COVID-19. There are broadly four common elements to provisions on a ‘state of emergency’ (including (1) conditions for its declaration; (2) a delegation of power; (3) limitations on its use; (4) provisions for legislative or judicial oversight). The situations justifying the declaration of a state of emergency, however, are intricately linked with national historical experience. Most constitutions stipulate war, external aggression, or armed rebellion as a condition for declaration. Only a few refer to a natural disaster, and less still refer to an epidemic or health emergency. Some constitutions contain more open-ended and interpretable conditions. For example in Malaysia, a state of emergency can be declared where the King believes there to be serious threat to ‘security’, ‘economic life’, or ‘public order’.

There is no strong indication of whether constitutional safeguards can limit the potential for abuse of emergency powers. Following 2011 constitutional reform, the 1917 Constitution of Mexico envisions the oversight by both judicial and legislative branches, and these political and legal safeguards against its misuse cannot be overridden by the executive. Despite numerous situations which may have called for a state of emergency: it has only been declared once in 1942 during World War II and has not been declared in the current crisis. In contrast, some states have existed in a near perpetual state of emergency despite safeguards. The 2014 Egyptian Constitution was drafted with intention of bringing an end to the near-perpetual state of emergency since 1967. The safeguards introduced, including two-thirds approval of the House of Representatives, have been however sidestepped through formalistic proceduralism. Egypt did not declare a state of emergency through the coronavirus crisis because it has never left such a state for more than a few days since 2017.

Some states avoid the term entirely: having experienced a two-year state of emergency following terrorist attacks in 2015, France declared a new state of a ‘health emergency’ which mimics the pre-existing provisions for a state of emergency, though only provides a more limited role for parliament and did not derogate from the European Convention on Human Rights [ECHR] and the International Covenant on Civil and Political Rights [ICCPR]. An ‘unofficial’ state of emergency can create equal cause for concern: the call of a  ‘general holiday’ in Bangladesh to avoid the negative associations of a state of emergency, belies the gravity of the situation and misleads the population into high-risk behaviours including mass-migration. A negative experience of the abuse of emergency power led Japan to omit an emergency clause in the 1947 Constitution. This has led to recent debate divided between those arguing that a clause would limit the potential for abuse; and those who contend that the existence of such a clause would be open to abuse.

Many states are highly prescriptive in the conditions attaching to a state of emergency. The Constitutions of Estonia, and Chile define varying levels of emergency, each with corresponding powers and conditionality over their use. The Constitutions reserve the most serious levels to parliamentary approval. Both declared a state of emergency: in Chile the estado de catástrofe; and in Estonia the eriolukord, which are declared by the executive, and do not require parliamentary approval. Both countries notified derogations under the American Convention on Human Rights [ACHR] and ECHR respectively, and also under the ICCPR. On paper this is compliant with the rule of law and individual rights. In practice, however, both states reveal worrying trends in their use of emergency powers.

Ultimately, even where constitutional provisions on states of emergency are robust from the perspective of democratic oversight, individual rights and the rule of law; it is clear that compliance also lies in executive commitment to constitutional and legal order, and whether or not there is sufficient separation of powers to ensure it. Without an independent judiciary or parliamentary oversight to enforce constitutional norms, a constitution is little more than words on paper.

The Limits of Executive Action

Due to the urgency of action needed in emergency conditions, it is understood that executive measures do not undergo the same level of scrutiny or stages of approval. This does not mean, nor should it, that the use of emergency power is without limits or conditions, or that state agents should be allowed to act with impunity. The underlying danger of the use of emergency power, is that it may be used to introduce government policy without legislative debate or to consolidate power in the executive, and not to mitigate the negative consequences of an emergency. The almost unlimited legislative power given to the Hungarian government has since been used to suspend the operation of the GDPR in Hungary, and to transfer the most profitable revenue-sources for local governments to county governments in areas controlled by opposition parties – both of which have no plausible connection with COVID-19.

Executive action without legal justification or adequate legal basis, exemplified in unpublished decisions and government circulars, can create legal chaos in a situation that calls for clear communication, and legal certainty. The dangers of vague provisions make executive exploitation possible. One of the most pressing concerns is temporality: although the current crisis will not be permanent, some countries are permanently shifting the balance of power resulting in executive decision-making that is all but unaccountable. Executive action should always be subject to important restraints including political (eg parliamentary approval) as well as substantive (eg the inviolability of absolute rights) and procedural safeguards (eg judicial review).

When seeking to identify best practice to protect against unintentional misuse or downright abuse of power, there are some simple, and universal principles. The delegation of power must be time-limited, and clear as to legitimate scope for its use. The use of power must be legally prescribed and proportionate to that legitimate aim. There must be meaningful oversight by an independent body, as well as the possibility for review for those subject to the law.

The impact of COVID-19 on Democracy, Justice and Human Rights

#Democracy

Ensuring the continuity of the core constitutional functions of the legislature has been a challenge for all countries. Some states adopted provisions to allow for virtual assembly and voting, or enacted modifications to procedures, in order to allow institutions to function as normally as possible. In some cases, however, the parliament was entirely left out, suspended or threatened with dissolution by the executive. States in the middle of election cycles have been faced with the challenges of governing a pandemic without a government. This led to interim governments adopting sweeping measures, and also to power struggles when minority government have tried to handle the crisis. The separation of powers is designed to ensure constitutional checks on the use of power. It is all the more important in a situation where urgency and extreme measures can be justified, but becomes difficult to sustain where the executive is at odds with the Parliamentary majority.

Elections and referenda have been cancelled or rescheduled in many countries. The disruption of which has caused significant concern. However, of equal concern are states that stick to their election schedules, but ignore constitutional and international standards regarding free and fair elections while also failing to introduce any protective measures, forcing the electorate to choose between their democratic right to vote, and the health of themselves, their family and their community. Poland’s surreal capitulation on the presidential election exposed constitutional tragedy amid political farce, when the leader of the executive announced the Supreme Court was going to annual an election that had not happened, before the Supreme Court has become seized of the matter.

Where elections are suspended, unfree and/or unfair, public expression of dissatisfaction with government is reduced to political campaigning, and public protest both of which are difficult, if not impossible, under current lockdown or restricted movement regimes. In Chile, the government has been able to capitalise on the pandemic to curb or limit civil unrest and public protest against the government. Where ‘chaos is method’, the opportunity to consolidate autocratic regimes is enhanced in emergency: Venzeuela, in a state of exception since 2016, has been able halt public protests and to hide a widespread lack of resources, through measures designed to limit the spread of the virus. However, where such capacity for public demonstrations is limited, alternative means including digital protest have risen. Online activism can shape public policy. In Indonesia, the ‘#LockDownOrDie’ movement on social media led to changes in government policy amid widespread distrust of the executive’s handling of the situation.

While strategies to combat COVID-19 have limited democratic input, and parliamentary oversight, it is inevitable that the decisions made by governments now will have lasting impact on their electoral systems (and prospects) in the years to come. 

The Interdependence of Rights

There has been a broad variance in the degree to which states have engaged with international institutions by derogating from international human rights instruments including the ACHR, ECHR and ICCPR. For many states derogation appears a mere extension, or pure formality, of the declaration of a state of emergency. For example, Chile is one of the few states which actively distinguished constitutional and international rights. Thus, there is