By Franklin De Vrieze and Joelle Grogan

In response to COVID-19, countries have applied different legislative models to introduce emergency measures. Some countries declared a state of emergency. Others decided to rely on existing legislation to face the extraordinary circumstances of the COVID-19 pandemic. Despite common assumptions, neither is ‘better’ or ‘worse’ for democracy and both approaches have carried considerable risks for parliamentary accountability. To declare an emergency or not to declare an emergency is not the question. Whether or not democracy is safeguarded depends on a separate set of good practices.

Testing assumptions

Most countries have either declared a state of emergency or used powers within ordinary, and typically health, legislation to face the challenge of the COVID-19 pandemic. An examination of initial global responses to the pandemic highlights some underlying assumptions concerning the use of emergency power, and the capacity of parliamentary oversight. We tested intriguing assumptions. Some are true, others are false.
First, there is an assumption that the use of emergency powers heightens the risk of the misuse or abuse of power or a permanent shift in the balance of power in favour of the executive (this is true) and therefore all use of emergency powers can be an indicator of abuse by the executive or government (this is false). Similarly, there can be an assumption that states should rely as much as possible on the ordinary powers of government in order to safeguard democracy (this is true), and that states which rely on ordinary powers during an emergency are unlikely to be misusing, or even abusing powers (this is false).

To declare or not to declare a state of emergency

There are many reasons why some states have not declared a state of emergency. First, some states do not have a constitutional provision for a ‘state of emergency’. For example, due to a negative historical experience of the abuse of emergency powers, the 1947 Japanese Constitution makes no provision for them. Second, for some countries the pandemic does not constitute an ‘emergency’ within the meaning of the constitutional or legal provisions. For example, the Republic of Ireland only makes provision for a state of emergency in times of war or armed rebellion. Few countries’ provisions on states of emergency refer to a natural disaster, and fewer still refer to a health emergency. Thirdly, some states have not declared a state of emergency because of a political unwillingness that is due to a downplaying or underestimation of the threat of COVID-19. The Indonesian government’s initial reluctance to declare an emergency exemplifies this unwillingness. The US and Brazil could arguably also fit in this category. Lastly, with Egypt serving as the prime example, some states did not declare emergencies because they are already in a state of emergency, instead seeing an opportunity to profit from the pandemic to entrench executive powers.

Amending old health legislation

For these reasons, many states relied on ordinary laws – typically health legislation – to respond to the pandemic. This has nevertheless raised significant issues when it comes to democratic oversight. The ordinary laws that are being relied upon may be outdated and unsuitable to the contemporary context – for example, Nepal’s 1964 Infectious Diseases Act or India’s 1987 Epidemic Diseases Act. States have relied on these old health acts to provide the legal basis for sweeping powers for detention, quarantine, and even lockdown. A concern is that interpreting the law to allow the use of powers in this way is beyond the intended scope of the law.
Where the existing law is unsuitable, urgent amendment is needed which allows very little time for meaningful parliamentary scrutiny. In the UK, Parliament had just 4 days for the review of the Coronavirus Act 2020 and MPs in Denmark had just 12 hours to review amendments to the Epidemics Act.

Democratic and legal safeguards

For states which have declared a state of emergency, there has been a common assumption that democratic and legal safeguards are sufficient to protect against the dangers of the abuse of power. For example, one of the safeguards requires that higher levels of emergency can be declared and extended by parliament only. However, these safeguards did not necessarily lead to higher degrees of parliamentary oversight in the current crisis.
Take Estonia, Chile and Hungary, for example. With little parliamentary scrutiny, the Estonian government introduced a package of emergency measures unrelated to the pandemic but closely aligned with its political agenda. The Chilean government used emergency powers to curb ongoing civil unrest, and to potentially delay a planned referendum on a new constitution beyond the pandemic. An almost unlimited degree of legislative power was given to the Hungarian government, which was used to remove crucial sources of funding for local governments, a move that was identified as a covert attempt to challenge opposition-led municipalities.
These examples highlight the inherent danger of emergency powers without parliamentary oversight. They can be used for the entrenchment of executive dominance, or for reasons other than tackling the pandemic.

Executive dominance

Even where provisions on states of emergency are robust from the perspective of democratic oversight, government compliance with democratic oversight also lies in executive commitment to the constitutional and legal order, and whether or not there is sufficient separation of powers to ensure it. Without an independent judiciary or parliamentary scrutiny, powers are at risk of misuse or even abuse.
Whether a country has declared a state of emergency or is relying on ordinary legislative powers, what is most concerning is the way governments have used their power with limited (or even without any) parliamentary oversight. Reflecting a global trend of executive dominance prior to pandemic, a number of parliaments have been marginalised, suspended, or threatened with dissolution by governments during the COVID-19 pandemic. There is a risk that COVID-19 will serve as a vehicle for deepening undemocratic practices. And this might be hard to roll back.

Good practice

Declaring a state of emergency no more indicates a potential for the abuse of power than the exclusive use of ordinary legislation indicates an absence of concern.
Ultimately, while there is no ‘perfect’ response to crisis, there is evidence of good practice embodying the values of the rule of law and good governance. The Venice Commission – the Council of Europe’s advisory body on constitutional matters – has stipulated that the use of emergency powers is justified only if they are necessary to overcome the exceptional situation; if they are proportional and limited in time; and if there is an effective judicial and parliamentary control.
State policies based on legal certainty, transparency, clear communication, and early reaction – as well as a willingness to listen to criticism and to adapt – have strongly correlated with lower COVID-19 infection and mortality rates, and earlier lifting of restrictions. That is better for everyone.

This is the first blogpost in a new series discussing to what extent COVID-19 emergency powers constitute a threat to democracy. The series emerges from the recent digital conference co-organized by the Institute of Advanced legal Studies of the University of London and Westminster Foundation for Democracy (WFD). This blog is by Franklin De Vrieze, Senior Governance Adviser at WFD, and Joelle Grogan, Senior Lecturer in Law at Middlesex University in London.