A good government knows that at any moment, disaster can strike. Knowing this, a good mindset for government departments to adopt is: hope for the best, prepare for the worst. The events of the last few years have brought this old adage into clearer focus, as almost every corner of the world saw society grind to a halt in response to the COVID-19 pandemic.
When a danger, created by internal or external threats, puts citizens at risk, the state must respond decisively and take action that would be considered excessive during ‘normal times’. This mechanism, allowing for the use of special powers in response to perilous situations, has existed as long as societies have. However, it can also increases the opportunities for abuses of power as many democratic checks and balances are weakened.
What is a state of emergency?
In ‘normal-times’, governments are held to certain democratic standards to ensure the rule of law is respected. When creating laws, they should follow a structured process to ensure it is debated properly by various branches of government, and civil society and local associations are consulted as part of the process. They must fulfil their obligations to uphold citizens’ basic human rights and liberties, such as attending protests or the freedom to move about freely.
However, when faced with an emergency, these democratic checks and balances can hamper the government when they need to act quickly. The process for debating new laws can take weeks if not months, which could slow decisive, life-saving action, such as the decision by governments to go into lockdown to slow the spread of the COVID-19 virus.
What happens in a state of emergency?
This is where the state of emergency kicks in. A state of emergency is a situation in which a government is given emergency legal powers to steer the country through a crisis or extraordinary situation to protect its citizens. It follows a declaration made by the government in response to extreme circumstances ranging from natural disaster, armed conflict, civil unrest, or an epidemic or other biosecurity risks.
A declaration can trigger a range of responses: normal government functions may be suspended, citizens may be advised to change their behaviour, government agencies may be authorised to execute contingency plans, and certain non-absolute civil liberties and human rights could be limited or suspended.
For example, the European Convention on Human Right contains a clause (Article 15) outlining which obligations member states are to be excused from, as well as which human rights can never be revoked or weakened. This allows states to be more agile in a time of crisis and respond rapidly to emerging developments.
What are the essential principles which must be respected?
While temporarily disabling democratic and balances can be necessary, it opens the door to abuses by those in power. When people are scared, they are less likely to question authority figures, making them easier to control. In a time of crisis there is a risk that governments will exploit the population’s fear to introduce measures without a proper legal basis, unnecessarily restricting people’s basic rights, or using emergency powers to pass laws which have nothing to do with the crisis in question, to the detriment of citizens, especially minorities. This was seen in Hungary, where emergency powers were used to bring in laws forbidding sex changes.
Similarly, due to reduced oversight, increased spending, and a relaxing of rules around public procurement, there is a heightened risk of corruption. To keep these risks in check, the use of emergency powers is only legitmate if certain conditions are met and legal principles followed.
1. Principle of exceptional threat
For a state of emergency to be justified, certain conditions should be met. The declaration should be a last resort measure necessitated by an extreme situation which poses a real, current, or at least imminent danger to citizens.
In Europe, Article 15 has traditionally been triggered in response to terrorism or political violence, for example in Ireland during The Troubles, as well as in France in 2015 in response to the terrorist attacks in Paris. A state of emergency can also be declared in response to a natural disaster, as seen in Ischia, Italy in 2022 in response to devastating landslides, or in Romania in 1977 to deal with the Vrancea earthquake. In 2015, and again in 2022, Ukraine notified the Secretary General of the Council of Europe of its intention to activate Article 15 in response to the Russian invasion.
The application of Article 15 on the grounds of public health during the Covid-19 pandemic marked new territory.
A crisis must be temporary in nature for a declaration of emergency to be warranted. This refers to the notion that the crisis must be an exceptional situation requiring a temporary response, rather than being a permanent, enduring issue.
This is especially important as the use of temporary emergency powers should not become normalised, as this would severely undermine democratic standards.
This was an issue highlighted by Liberties in our 2022 rule of law report, which audits how well EU member states respect the rule of law. Many of our member organisations reported that their governments failed to give up the emergency powers they gave themselves to deal with Covid, even after the temporary nature of the crisis period was over. This can deal democracy quite a blow, as checks and balances are severely weakened. In Hungary, for example, the special legal order enabled the government to rule by decree, suspend certain laws, and weaken fundamental rights. This included restricting the right to free speech through the passing of a law criminalising speech about the pandemic if it causes panic. Hungary’s emergency state, initially triggered in April 2020 to deal with Covid and later in response to the war in Ukraine, is becoming a permanent fixture.
Declaring the state of emergency to members of the public is a vital step. As part of the declaration, citizens should be informed of any emergency legislation, exceptional powers, measures or policies which come into effect, and the obligations or restrictions it places on them.
A de facto state of emergency occurs when the state implements emergency measures which essentially amount to a state of emergency, but without actually declaring it as such. This increases the likelihood of abuses of power, because the government is interfering with citizens’ human rights without respecting the essential principles built into a state of emergency, such as it being for a limited duration and only restricting basic rights as much as is necessary. Without these legal safeguards in place, it is harder for citizens to challenge government decisions which cause harm.
4. Delegation of power
Typically during a crisis, certain government departments need additional competencies in order to take decisive action in an emergency situation. These additional powers are delegated by one of the three branches of government (executive, legislative, judiciary). This transfer of powers is justified if it is a necessary step to protect citizens from danger.
As well as being subject to the principle of necessity, the delegation of power should be proportionate to the response demanded by the crisis, as well as being limited in duration. There should also be an independent body providing oversight, and for those subject to the law, the possibility of review.
However, whether this happens in practise is another question. Concentrating law-making power in the hands of a single department or government minister reduces the level of scrutiny, narrows the diversity of views being considered, and increases the likelihood of abuse.
Taking a look at Ireland as an example, during Covid-19 the Minister for Health was delegated law-making power in order to make regulations to slow the spread of the virus and protect citizens by restricting their movements.
While the Irish Human Rights Equality Commission (IHREC) accepted that the delegation of power was necessary, in their report reflecting on the use of emergency powers in Ireland during Covid-19 they concluded, “it is difficult to avoid the conclusion that the delegation of legislative power to the Minister for Health has resulted in a black hole for the consideration of human rights and equality concerns.”
5. Scope: Principles of necessity and proportionality
Given that civil liberties ranging from freedom of speech, the right to liberty, the right to a fair trial, and the right of assembly, can be weakened during a state of emergency, the decision to limit or suspend certain human rights is not one to be taken lightly. But even though fundamental rights are at stake, it can still be compatible with democracy provided it is necessary and proportionate. This principle is designed to prevent politicians from exploiting a crisis to their own advantage by silencing critical voices, and to enable citizens to take an active role in shaping their government’s response to a crisis.
This common-sense approach requires governments to only interfere with those rights which, if exercised freely, would put citizens at risk. Similarly, rights shouldn’t be limited any more than is justified in order to protect citizens, nor should they be restricted longer than is necessary.
However, in Liberties’ Rule of Law Report 2020, we found that governments in many EU countries placed disproportionate restrictions on civic space, media freedom and public participation in the name of Covid-19. This is particularly problematic during a crisis, as it makes it harder for journalists and activists to keep the public informed about how governments are using their emergency powers, while also limiting citizens’ ability to communicate their concerns.
In Hungary, journalists were banned from reporting the on-the-ground situation in hospitals during the pandemic, which prevented news outlets from reporting on the true extent of the virus and the toll it was taking on the healthcare system. Such restrictions on media freedom, motivated by the government’s attempts to save face rather than the welfare of citizens, are not legitimate under Article 15.
During the Covid-19 pandemic, many governments placed extraordinary restrictions on citizens, such as prohibiting them from leaving their house except for limited circumstances, limiting their freedom of movement to a specific geographical area, or forbidding them from travelling abroad, with limited exceptions. While such confinement orders restrict the freedom of liberty, this can be compatible with the rule of law. However, if the deprivation of liberty is also subject to surveillance, as happened in Ireland and France, it may not be compatible.
6.Principle of legality and rule of law prevails
A state of emergency can be compatible with the rule of law if the normal functioning of the state is inadequate to respond to a crisis. However, it isn’t an excuse for the state to throw out the rule book. This means any actions taken by government must have a legal basis, which is especially crucial during emergencies when the state is limiting people’s freedoms.
All restrictions of citizen’s rights must be based in law, and their legal basis should be clearly communicated to the public. In our 2022 rule of law report, researchers in half the countries (Belgium, Croatia, France, Ireland, Italy, the Netherlands, Poland and Sweden) questioned whether their governments used their powers legally. In Ireland, the government was guilty of blurring the lines between what constituted a legal requirement and a public health guidance when communicating restrictions to the public. As a result of this legal uncertainty, people were confused about what restrictions they were legally obliged to follow, and which were suggestions.
Which human rights cannot be limited even in the event of a state of emergency?
Human rights which cannot be suspended or limited for any reason, including a state of emergency or war, are known as absolute rights. It may come as a surprise that very few rights are absolute. International law acknowledges that most rights and freedoms can be placed under reasonable limits if the circumstances justify it.
Absolute rights as per the International Covenant on Civil and Political Rights (ICCPR):
- Article 7 ICCPR - Freedom from torture and other cruel, inhuman or degrading treatment or punishment
- Articles 8(1) & 8(2) ICCPR - Freedom from slavery and servitude
- Article 11 ICCPR - Freedom from imprisonment for inability to fulfil a contractual obligation
- Article 15 ICCPR - Prohibition against the retrospective operation of criminal laws
- Article 16 ICCPR – Right to recognition before the law
While certain rights might be weakened during a state of emergency, the state is still obliged to fulfil certain critical duties. For example, the right to an effective remedy was impacted at the height of the pandemic, as social distancing measures or staff members being sick prevented courts from operating normally. Nonetheless, the state is still obliged to provide an effective remedy for human rights violations, and should ensure urgent court cases are still seen, such as criminal cases or challenges against emergency measures. Many courts adapted to the pandemic by holding hearings online.
Preventing the abuse of emergency powers: What mechanisms and approaches can help?
There is a tradition of authoritarian governments treating emergency powers as a blank cheque and weakening checks and balances. However, consecutive Liberties’ Rule of Law Reports found that countries with traditionally strong democracies were slow to relinquish their emergency powers, even when the virus no longer posed the same risk.
It came as little surprise that the governments of Hungary and Poland exploited the pandemic to consolidate their power by using the state of emergency as an excuse to dismantle democratic structures. Stripped back legislative procedures, increased power of the executive and lack of public debate enabled them to usher in measures weakening the judiciary, the media and civil society.
However, the normalisation of emergency powers was an alarming trend across Europe. Our most recent Rule of Law Report showed that some countries were using powers created to deal with the pandemic to limit the right to protest. Hungary also used Russia’s invasion of Ukraine as yet another justification to enforce an emergency regime, allowing for more restrictive laws and limiting checks and balances.
To prevent abuses of power, a legal mechanism known as a ‘sunset clause’ can be built-in, which means the legislation comes with an expiry date. This helps avoid the normalisation of emergency powers, which by definition should be temporary in nature. Producing the same effect as if the law was repealed or revoked, the law ceases to be in effect. However, any actions that took place while the law was in-date remain valid. For the legislation to continue beyond expiry, new legislation must be enacted.
Democratic neglect during times of emergency can have long-standing consequences, which persist long after the initial crisis has passed. Paring down the legislative process so governments can nimbly respond to danger can be an acceptable temporary measure, but it shouldn’t become the ‘new-normal’. By concentrating the power in the executive branch, it removes the usual oversight and deprives civil society from having an input. This means ordinary citizens can’t influence the legislation so that it shapes their evolving needs and views - such as struggling to feed their children or heat their homes during a cost-of-living crisis - resulting in a far less democratic process.
So what can be done?
For many people the Covid-19 pandemic was their first time experiencing a state of emergency and the collective experience is ripe with opportunities for lesson-learning. If governments want to learn from their mistakes, they should widely consult stakeholders from different sectors to review actions taken during the state of emergency and define the scope for reform.
This review and reform capacity was already exercised during the pandemic, most notably by Italy who, in response to criticism from academics, lawyers and the media, reformed the haphazard restrictive legal measures to include constitutional safeguards and protections for the rule of law. Finland also took special care to ensure executive decrees complied with constitutions and human rights obligations by consulting external legal experts, as well as inviting public engagement through a legal blog.
In our 2023 rule of law report, Liberties recommended that the EU conduct an in-depth assessment of the impact of the COVID-19 pandemic on lawmaking, in particular as regards the use of emergency and accelerated procedures. With all the challenges that lie ahead of us, both known and unknown, learning how to face them head on, while still protecting democracy, is crucial.