This blogpost is part of the Covid-19 Governance Mapping initiative, a collective effort to document the structures of national decision-making in the world’s Covid-19 response, and the actors involved. Together with experts from The Collectivity and a team of researchers, the project gathered data on over 20 countries, mostly for the period between April and July 2020. That data is public, and the blog series provides a first analysis of the findings.
When Covid-19 first became a global pandemic in the spring of 2020, many of the world’s governments responded with strong restrictions to combat the spread of the virus. At least 114 out of 197 countries recognised by the United Nations have declared a legal state of emergency in response to the pandemic in the first months, to give governments access to emergency powers and funds. This accounts for nearly 60% of all countries.
In our mapping of the use of national states of emergency in the first three months of the pandemic, there was a pattern of most countries applying the following two rules to emergency powers:
- The decision to enter emergency rule should be voted on.
- Emergency rule should be time-limited.
When these two rules are applied, national parliaments agree to enter a state of emergency that gives the government more freedom to rule without holding votes on each decision, but parliamentary oversight will remain. The period of emergency rule will then expire after a certain amount of time or when the emergency circumstances cease, unless a new vote is held. This may sound straightforward, like something that is simply in place or not, but there are examples of countries that during the Covid-19 pandemic have ended up in a grey zone around these two rules. In this way, the pandemic appears to be changing the rules of emergency rule.
Rule number one means that even though emergency rule often allows governments to rule by executive decree, governments should not be able to start doing this simply because they decide it is necessary. A red flag in this area is when a head of government issues a decree to enter emergency rule, since this means parliament has not been consulted. This happened in for example Paraguay, where the president simply skipped over the vote that is normally required to enter emergency rule, by declaring a state of sanitary emergency by decree. This allowed him to issue more decrees in response to the pandemic, whereas the constitutional state of exception would have been more tightly regulated and limited in reach. In Serbia, the government suspended the National Assembly to avoid spreading the virus, but without taking any measures to allow parliament to keep working remotely. Since this was done before a state of emergency was declared, parliament was not in session and able to vote on the decision on emergency rule for over a month, even though they would normally be required to vote within 48 hours. While it is technically legal to declare a state of emergency in this way in cases where the parliament is unable to convene, it is relevant to note that they were not able to convene because of the government’s own decision to prevent indoor gatherings of over 100 people.
Rule number two means that a state of emergency should have a clear expiry date, either through a calendar date or a cease of circumstance leading to the end of emergency rule. An obvious red flag here is when governments like Hungary propose that a state of emergency can stay in place indefinitely. Hungary’s initial Covid-19 state of emergency was lifted in June after three months, which does not make it exceptionally long, but the legal changes that enable the government to declare indefinite emergency rule by decree remain in place, and the Covid-19 pandemic was used to motivate this change. A much more common way for governments to circumvent the time limit on emergency rule is to allow indefinite extensions. If this is done in ways that also avoid rule one on voting to introduce or extend emergency rule, governments can in effect extend emergency powers indefinitely while still adhering to the legal time restrictions. This is the case in Peru, where the government can declare a state of emergency by decree for a maximum of 60 days at the time. The only approval that is needed is from the government’s own cabinet, and there is no limitation on how many times this can be done.
Emergency rule may very well be justified in the context of the early Covid-19 pandemic, but at the same time, these changes to the rules themselves can have very negative consequences for the population. The limitation or loss of control that legislative powers normally have over governments limits the principle which is at the very heart of any democracy: the separation of powers creates power balance and safeguards against the risk of oppression. In the context of the covid-19 pandemic, some emergency decisions dangerously infringe on basic rights such as freedom of movement, freedom of expression around how decisions are made and implemented, and the right to data privacy and information about how data is used. The loss of social accountability is linked to the partial or total loss of the right of citizens to participate in the exercise of power through their representatives. This increases the risk that power will be abused as a consequence of the emergency governance structures put in place because of Covid-19, which is a consequence that will remain long after the pandemic.