Constitutional democracies in emergency times
This guest blog is a collaboration between the UVA Democracy Initiative and the Trinity Long Room Hub Arts and Humanities Research Institute, Trinity College Dublin. The series reflects on the societal and democratic challenges posed by the COVID-19 global public health crisis. To visit the Trinity Long Room Hub blog, please click here. To find out more about the Trinity Long Room Hub’s Arts and Humanities led approaches to democracy visit, click here.
Economic collapse, natural disaster, pandemics, political subversion, terrorist attacks - these are just some of the kinds of events which can prompt governments to seek and use emergency powers. Such situations raise two main problems for constitutional democracies. The first is that, evidently, where the state is unable to tackle a serious crisis, its citizens may suffer and question the state’s capacity to safeguard the common good, potentially placing the legitimacy of the government in jeopardy. However, the second (and arguably competing problem) is that affording the government extensive powers to tackle a crisis may equally threaten the values underpinning the political system - including the rule of law, human rights and fundamental freedoms – placing the same legitimacy threatened by non-action in jeopardy. In practice, such situations tend to follow a similar pattern.
In response to events threatening public welfare the executive often seeks extensive powers in the name of maintaining safety and order. The legislature, in turn, defers to the executive’s claims of necessity and extends broad authority subject to modest oversight while the judicial branch, where the powers granted are challenged for infringing human rights, generally accepts the executive’s characterisation of the situation as an emergency and extends considerable deference to the other branches.
Judicial reluctance to robustly check executive power during emergencies is not surprising. The judiciary can feel stifled by informational poverty and will defer to the executive’s claims of necessity if it thinks the executive possesses insights which are informed by technocratic and scientific expertise. Deference can appear the safe bet – and the intelligent one in such circumstances.
To date, the response of governments to the ongoing Covid-19 pandemic has fallen comfortably within the pattern of delegation and deference noted above. Across the world, legislatures have delegated extensive powers to Presidents and Prime Ministers to tackle the pandemic - powers which in many cases significantly curtail individual rights through, restrictions on travel; stay at home orders; prohibitions on public gatherings; the suspension of evictions and rent increases and the effective nationalization parts of the economy. Some parliaments have also granted greater surveillance powers, for the purposes of ensuring compliance with quarantine measures.
While these measures clearly interact with, and in certain cases infringe, individual rights, in a European context they raise largely untested issues of the limits of human rights. Human rights in a European context, and indeed more broadly, are framed as being subject to built-in limitations which permit such overrides – in particular during times of emergency or where public health is threatened.
The example of the right to privacy is illustrative. Some governments are currently using technology to track the spread of COIVID19 using location tracking functions embedded in personal digital devices like phones and the applications which operate on those devices as well as, in more extreme examples, the use of drones to monitor individual movements. Such measures present clear reductions of individual privacy – in particular where they occur within a home.
Under ‘normal’ circumstances, were such measures deployed in the EU they would be restrained by Articles 7 and 8 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights (ECHR). Yet, the privacy protections afforded by both documents allow not only for their requirements to be relaxed, but for competing concerns to take priority over individual exercises of such rights, such as protecting the ‘general interest’, protecting the rights of others (in the case of the Charter) and specifically to protect public health (under Article 8(2) ECHR). Protections afforded under legislative mechanisms are similarly limited - Article 9(2)(i) of the General Data Protection Regulation (GDPR), for example, provides that normal requirements for consent when processing sensitive personal data will not apply where the processing is carried out in the ‘public interest in the area of public health’ which is understood as including ‘protecting against serious cross-border threats to health.’
Crucially, the current pandemic offers an opportunity for both the Court of Justice of the European Union and the European Court of Human Rights, as well as national constitutional courts, to determine the limits of the public interest, and tests of necessity in restricting human rights in extremis. The potential for clarity in this respect is significant given the absence of a comparable emergency since the drafting of either the ECHR or Charter. Many of the leading cases which have emerged from emergency contexts in the prior decisions of national courts across the world have been made against a backdrop of war-time, terrorism, or financial crises, and not a public health emergency like a highly contagious virus with no available vaccination. How such tests are drawn will tell us a great deal about the democratic health of our institutions – and the power of human rights to effectively restrain states and protect citizens, including when those institutions of State are under strain.
Such clarity also serves an underlying need to ensure the endurance of emergency measures are not totally open-ended and become the “new normal.” This potential is frequently highlighted by reference to US emergency measures passed following 9/11, most notably the US Patriot Act, which continues to be relied on long after the urgency which it was enacted to address has passed. How Courts and other political actors define necessity in the context of a public health emergency – and assess the proportionality of rights limitations which flow from such limitations – may thus have enormous political consequences in the coming months and even years.
When seeking to ensure a transition from emergency to status quo powers, it is worth remembering the sobering reality that in the history of emergency powers in constitutional democracies, the greatest check on their abuse has been the moral and political scrutiny offered by a well-informed public. It is popular anger and pushback at emergency proposals perceived as overly oppressive, or disproportionate, which offer the weightiest check on institutional over-reach and reductions in the protective scope of individual rights.
The judiciary may offer some important guidance on the concepts of necessity and proportionality through the cases which will inevitably emerge from the present period, on the cross-definitional relationship between emergency powers and human rights. However, the immediate responsibility for appropriately balancing human right lies with the executive and, ultimately, as in any constitutional democracy the people – who will have the last word on whether governments have gone too far in tackling the crisis, or not far enough.
Róisín Á. Costello is an Assistant Professor of Law at the School of Law & Government, Dublin City University.
Conor Casey is a Postdoctoral Weber Fellow at the European University Institute.