The year 2020 has been marked by the impact of the COVID-19 pandemic, affecting nearly every country in the world. Citizens, regardless of their nationality, experienced similar restrictions on their fundamental rights, such as lockdown, closure of schools and places of worship, and restrictions on movement and mass gatherings. While a government can easily justify its drastic measures in name of promoting public health and safety during a time of crisis, it is also equally important to examine critically the legality of government actions, and whether they are proportional to the goals of promoting public safety.
To promote a comparative discussion on the constitutionality of government responses during COVID-19 amongst scholars, International Institute for Democracy and Electoral Assistance (International IDEA) invited experts from around the world to submit a video discussing their government’s policies. To date, 50 countries have submitted a video. I spent the first few weeks going through the video responses and wrote up a short summary for each country. Then, I spent the bulk of my time doing a comparative analysis examining the legal mechanisms that governments utilized to manage the pandemic, specifically where and how governments claimed the power to restrict fundamental rights during the pandemic.
Legal Mechanism to Declaring a State of Emergency
During a state of emergency, the executive tends to gain more power, while the legislature and judiciary tend to lose power, tipping the scale of checks of balances. According to Tom Ginsburg and Mila Versteeg, authors of Binding the Unbound Executive: Checks and Balances in Times of Pandemic, this is because the executive branch is the “only organ of government with the resources, power, and “flexibility” to balance liberties against national security during a state of emergency (Ginsburg et al. 2020: 11). Executive powers become unconstrained during exceptional times, so the theory goes, because they require additional powers to act efficiently and effectively.
In general, an executive can obtain emergency power from two legal bases, one through the constitution and the other through statutory authorization. Today, over 90 percent of all constitutions include clauses allowing for the declaration of state of emergencies (Ginsburg et al. 2020: 14). Once invoked, the government can take extraordinary measures to “derogate” from or suspend certain rights (Ginsburg et al. 2020: 14). Another way that executive gain power during a state of emergency is through statutory authorizations. Since not all constitutions have emergency clauses. Legislatures can grant additional powers to the executive through ordinary legislation subjected to normal constitutional review. These types of legislation usually have some form of restrictions in place, such as a sunset clause, to prevent abuse of power.
Overall, I was surprised to learn about the range of responses that governments took. Some governments addressed COVID-19 by declaring a state of emergency through the Constitution, other governments enacted legislation. For this project, I focused on countries that did not declare a state of emergencies through the Constitution to understand why they did not do so and whether the legislative approach was more or less restrictive on fundamental rights than the constitutional approach. I was surprised to find that while some countries like India could not declare because such provisions did not exist in its constitution, others like Sri Lanka circumvented the emergency clause in its constitution for political gains. Further, although some governments passed legislation to restrict fundamental rights but acted with little checks and balances, other countries used legislation as a last resort to protect fundamental rights.
The countries I examined fell into two broad categories:
1. Lacked emergency provisions in the constitution and thus enacted legislation to restrict fundamental rights
Both India and Ireland restricted rights by enacting legislation. This is because both countries’ constitutions state that a state of emergency can be declared only during war aggressions. Interestingly, although the Irish and Indian governments had public opinions in mind when enacting legislation, they took very different actions. In India, the government used “infectious disease” legislation rather than “emergency" laws to suspend civil liberties in order to avoid public scrutiny that comes with formally declaring a state of emergency. In addition, the Indian government also issued broad legislation that limited fundamental rights in the country without any meaningful checks and balances from the legislative and courts.
In contrast to the Indian government, the Irish government hesitated to impose regulations restricting rights even though it had already passed legislation that gave the government the power to issue such regulations. One reason behind the Irish government’s abundance of caution is that the current administration had been as a caretaker government during COVID-19. Because of the pandemic, no new government had been elected even though the election was held on February 5. Because the caretaker administration introduced COVID-19 legislation without an electoral mandate, the government acted cautiously to prevent future backlash and negative press.
2. Circumvented emergency provision in the constitution and instead enacted legislation to restrict fundamental rights
Not all countries that could declare a state of emergency did so during the pandemic. Instead, some countries evoked old and passed new legislation to restrict fundamental rights. In Singapore, the government did not proclaim a state of emergency because it had been evoked only once in history when the country was facing foreign aggression. Declaring a state of emergency through the Constitution in response to COVID-19 may unnecessarily expand the bounds of an "emergency" in the future. If having a vague emergency clause is a deterrent, then could it be resolved by defining more specifically what an emergency consists of in the Constitution?
The Polish Constitution delineates natural disaster as one of the conditions that a state of emergency can be declared under. Nevertheless, the Polish government did not address COVID by declaring a state of emergency under the Constitution and instead enacted legislation. Why did the Polish government go through all the trouble of enacting legislation when the Constitution gave the government the necessary powers? According to Agnieszka Bien-Kacala (2020), professor of Nicolaus Copernicus University, under the state of emergency, the Polish Presidential election, scheduled for May 10, would be suspended during extraordinary measures. Thus, the Polish government did not wish to evoke emergency powers under the Constitution since they hoped to win the Presidential election.
After examining these case studies, there doesn't seem to be a clear answer on what the best constitutional model is in dealing with a state of emergency. Should constitutions be more stringent in having government follow its guiding principles or should constitutions allow enough flexibility for so that the executive has enough discretion? As shown in Poland, even if a pandemic is included under its emergency provision, the country circumvented that channel and instead utilized legislative means to pass COVID-19 measures. In contrast, for Ireland, in the absence of emergency provisions in its Constitution, the government chose to issue advisory opinions even though it had the legislative means to institute legally binding measures.
It seems how executive power acts during a time of crisis is highly dependent on the country’s past experience with the rule of law and the strength of its checks and balances system. There also seems to be a correlation between how a government is elected into power and how the executive behaves and implements potential unpopular measures that restrict fundamental rights. I would like to examine this area more closely in the future.
Ginsburg, T., and Versteeg, M., ‘Binding the Unbound Executive: Checks and Balances in Times of Pandemic’, University of Virginia School of Law, June (2020), pp. 1-62, <https://ssrn.com/abstract=3608974>, accessed 10 July, 2020
Government responses to COVID-19-19, International IDEA, < http://constitutionnet.org/state-of-emergency>