Covid-19 and States of Emergency
Covid-19 has created an unprecedented collective crisis affecting almost all of the world’s states simultaneously. As with the climate emergency, the pandemic is global, both in its causes and potential lethality. Yet in the absence of a guiding universal framework, political responses have occurred mostly at the national level. National response policies have unveiled systemic inequalities through their disproportionate impact on vulnerable groups and set in motion disturbing legal developments that may have a detrimental impact on human rights and democracy.
While in the initial phase of the epidemic several states used ordinary legislation and government decrees to deal with its immediate consequences, thus preserving a degree of legislative normalcy and accountability, at the height of the pandemic many resorted to declaring “states of emergency”. The constitutional basis for a government to assume such emergency powers varies from country to country and typically relates to a range of specific historical experiences, including external rebellions, war and natural disasters, but rarely public health emergencies. Despite their feeble legal foundation, such initiatives seemed to correspond with the urgency of the situation, requiring immediate action to preserve the life and health of a country’s citizens. Moreover, most of the sweeping measures adopted (strict confinements and quarantines, monitoring of social distance and infected people, and even border closures) were recommended by the scientific community and the WHO as necessary to effectively contain the virus and protect the right to health.
STATES OF EMERGENCY ARE SUBJECT TO ABUSE
However, the risk of governments abusing the extraordinary authorisations conferred upon the executive branch by a state of emergency declaration and extending indefinitely unprecedented restrictions to basic freedoms has become an increasing concern, sparking a global legal conversation on constitutional safeguards.
Conditioned by the fear and the disruption that inevitably result from the severity of the pandemic, citizens may be ready to accept the permanence of such restrictions as inevitable – as part of a so-called “new normality” offering little resistance to the increase of executive power in the name of “preserving the community”. International organizations have warned of the potential threat of putting human rights in quarantine as well The UN, the Council of Europe and other international organisations have warned of the potential threat of putting human rights in quarantine as well, thus undermining the common values enshrined in constitutions and international treaties and opening the door to authoritarianism.
ORDINARY POWERS CAN BECOME EXTRAORDINARY IN REACH
To be sure, in itself, an exclusive reliance on ordinary legislation does not eliminate the risk of abuse. A number of countries (such as Japan, Bangladesh, the UK or Germany) have avoided a state of emergency declaration either because of negative historical connotations, because such powers were not available in their constitutions or because the current situation did not constitute an “emergency” according to their legal systems. Still, ordinary powers can become “extraordinary” in their reach, especially if new norms are enacted, or old legislation reformed, in ways that evade sufficient deliberation or democratic scrutiny. For instance, the speed with which public health legislation was amended in Denmark and the UK – only 12 hours and four days respectively – allowed very little time for meaningful review. An “unofficial” state of emergency might thus emerge from ordinary legislation, an outcome which is equally troubling when condoning the severe human rights restrictions that may result from geo-tracking populations, restricting freedom of movement or censoring media.
The most pressing question, therefore, is how to ensure that a state’s legitimate aim to protect the health and life of its citizens does not degenerate into arbitrariness and disproportionate interference with the exercise of rights and freedoms inherent to democracy. There are no unshakable safeguards that can limit the potential for abuse of such extraordinary government powers. Extraordinary powers should systematically be constrained by the rule of law and be constitutionally valid Yet a number of recommendations on safeguards and “good practices” to ensure a robust “rights-respecting” framework for a state of emergency have been put forward by constitutional and legal experts. They typically recognise the necessity for urgent action, which might involve restricting rights, but urge governments to respect the legality principle in order to prevent democratic backsliding. Accordingly, extraordinary powers should systematically be constrained by the rule of law and be constitutionally valid.
PUBLIC ENGAGEMENT IS ESSENTIAL
Graffiti little girl releases a medical mask into the sky against a gray brick wallLikewise, experts recommend continuous public engagement (including consultations with legal and health advisors), as this facilitates subsequent review and policy rectification. Finally, they stress the importance of enabling forms of ongoing parliamentary oversight and judicial review as critical to counteract the potential misuse of emergency powers, such as detaining people on suspicion that they might be Covid-19 positive or allowing geo-tracking surveillance systems that can severely curtail privacy rights. Although the exercise of certain rights might be restricted – freedom of movement or assembly, for instance – and even explicit derogations might be justified in certain contexts, such limitations should be necessary, proportionate and time-limited. Any emergency legislation that does not include a sunset clause or that can be extended permanently without parliamentary approval clearly contradicts such a “rights-respecting” framework.
In brief, while the pandemic may require exceptional rights restrictions, these should not give carte blanche to violations of constitutional and international human rights law in the medium and long term. What is crucial, then, is to make sure that emergency legislation, extraordinary executive powers and human rights restrictions adopted to combat the spread of Covid-19 are not normalised or enforced in ways that discriminate against vulnerable minorities.
COVID-19 HAS STRUCK AT A TIME OF RISING ILLIBERALISM
Unfortunately, the potential for abuse of emergency powers is already materialising in some countries, especially those with precarious democracies and weak rule of law systems. We should not lose sight of the fact that the Covid-19 pandemic has struck at a time of rising illiberal autocratic populism and global democratic backsliding which, in themselves, pose serious threats to human rights and liberal democracy.The Covid-19 pandemic has struck at a time of rising illiberal autocratic populism and global democratic backsliding which, in themselves, pose serious threats to human rights and liberal democracy A clear example of political regression aggravated in this epidemic context is Hungary, whose Prime Minister Viktor Orbán has used the fight against Covid-19 to obtain parliamentary approval for unlimited power to govern by decree indefinitely and to impose prison sentences on journalists allegedly promoting false information related to the coronavirus. Criminalising dissent or the violation of quarantine measures represents a clear excess of emergency measures, which can quickly become accepted through the political exploitation of fear.
Chile provides a subtler example of how the lack of a consolidated liberal democratic political culture increases the risk of emergency powers leading to greater consolidation of executive power. The estado de catástrofe was declared by the executive without parliamentary approval, and the country has notified derogations under the American Convention on Human Rights. Formally, this is compliant with the rule of law. Yet Covid-19 has been exploited in the Chilean case to justify executive overreach to attain objectives that have more to do with solidifying autocracy than with protecting public health.
THE DICHOTOMY BETWEEN COLLECTIVE INTERESTS AND INDIVIDUAL RIGHTS IS FALLACIOUS
In order to contain such authoritarian slippage and concomitant human rights regressions, it is important to uncloak the false framing of the crisis that justifies the underlying illiberal rhetoric in the eyes of many citizens.It is important to uncloak the false framing of the crisis that justifies the underlying illiberal rhetoric in the eyes of many citizens Namely, the fallacious dichotomy that there is a clash between collective interests and individual rights, and that sacrificing rights is inevitable in extraordinary times. Rather than balancing the “common good” and individual rights, as some extreme right-wing and libertarian protesters inadvisably recommend, the challenge is how to rebalance the various human rights at stake in the context of a global health crisis. From such a perspective, rights claims are not antagonistic to public health imperatives but may actually contribute to achieving the common good.
Freedom of expression, for instance, and the role of the media are critical not only to denounce unnecessarily stringent restrictions and give voice to public criticism, but also to access accurate information, which actually saves lives. On the contrary, employing invasive and unverified methods of digital surveillance may be easily misused to control the population, or the political opposition, rather than the spread of the virus. In Spain, for instance, video surveillance was used in a non-transparent way during the estado de alarma to detect movement and control confinement; moreover, the Interior Ministry has admitted to monitoring social media to detect criticism of the security forces under the presumption of preventing the spread of fake news. Such policies encourage self-censorship and ignore the idea that public accountability and free speech are critical to protect democracy — including in times of emergency — and that collective goals cannot be an excuse to derogate from human rights.
Overcoming the (false) dilemma between individual rights and the common good – or between liberalism and communitarianism – enables a much more productive discussion on balancing human rights in times of emergency. Certainly, international human rights law guarantees the right to the highest attainable standard of health and imposes positive obligations on states. The right to health, however, continues to be conceived narrowly as the right to medical care, neglecting broader, preventive action, including access to clean water, hygienic sanitary conditions or housing, which are crucial for protection against Covid-19 but typically denied to vulnerable groups. More than ever, this crisis is exposing strong global inequalities that are also deadly. The fact that responses have been modelled on middle class citizens in the Global North – social distancing or lockdowns are simply impossible in Buenos Aires slums, refugee camps or in poor countries afflicted by hunger and lacking basic sanitary conditions – sadly betrays the biased worldview underlying such responses. Ultimately, similarly lethal epidemics that have spared the world’s middle and upper classes have never received the same priority.