[This is an excerpt from an article in The Round Table: The Commonwealth Journal of International Affairs.]
The risk to human rights
In the context of COVID-19, transferring power away from the democratic process of legislative scrutiny to the executive or to a single individual, is justified in light of a health crisis. Nevertheless, such measures also carry significant risks. For instance, granting powers to the state that circumvent ‘normal’ legislation and the parliamentary scrutiny inherent in the legislative process can have adverse effects on the enjoyment, inter alia, of rights to life, a fair trial, liberty and security, freedom of assembly and association, and freedom of movement and expression. In Fiji, for example, there has been widespread criticism of efforts to stifle the press, while in Samoa there have been concerns raised about the passage of controversial bills at a time when Parliament is not sitting. Moreover, in any given state of emergency, there is the risk that these exceptional powers and permitted restrictions on rights can become normalised, and what is tolerated in a crisis becomes the new normal.
In some constitutions there are additional protections offered in respect of certain basic human rights in the case of emergencies. For example, breaching so-called ‘lockdown’ rules can result in imprisonment, and indeed it can be argued that freedom from detention is one of the first liberties to give way under a state of emergency. In many PICs prisons remain basic, often not meeting the UN standards for detention facilities. This means they are places through which COVID-19 could, if introduced, easily spread with devastating consequences due to prison overcrowding and poor sanitation, exposing the detainees and others to higher risks of infections (UN Sub Committee on Prevention of Torture [UN SPT], 2020). The constitutions of some PICs include provisions directly addressing the circumstances of detention in periods of emergency. For instance, under Art79(1) of Nauru’s constitution, there is to be an advisory board that is to hear representations from those detained during a state of emergency. Similarly, under Art6(b) of Kiribati’s Constitution, anyone detained by virtue of a law or regulation enacted under a state of emergency, shall be notified to the Beretitenti (Office of the President) stating that he has been detained, alongside the particulars of the provisions of law under which his detention is authorised.
Nevertheless, as noted above, civil rights are often curtailed in a state of emergency. Such limitations may be legitimately justified with the measures necessary to protect public health and preserve public order (Lebret, 2020). The constitution of the Federated States of Micronesia, for example, attempts to safeguard rights by providing under section 9 (b) that a civil right may be impaired only to the extent actually required for the preservation of peace, health, or safety. This provision appears to place limits on the extent to which certain rights can be undermined, subject only to those measures that are deemed as strictly necessary. Of course, such a provision on its own is worth little, particularly if individual governments’ reasons are not scrutinised. Thus, it is noteworthy that the same provision stipulates that ‘a declaration of emergency may not impair the power of the judiciary except that the declaration shall be free from judicial interference for 30 days after it is first issued.’ This provision is ambiguous but might be interpreted as saying that not only will the courts be permitted to function during a state of emergency, but they might also, owing to the initial part of this provision, have the scope to scrutinise the extended period of emergency. What is not permitted, it would seem, is questioning the reasons for declaring a state of emergency ab initio. This appears to reflect the position in the UK where courts are being called upon to interpret the laws adopted to give effect to emergency legislation rather than the decision to adopt emergency legislation or the legislation itself.
In addition, the constitutions of some PICs expressly provide for the protection of human rights, a state of emergency notwithstanding. For instance, the Constitution of Papua New Guinea provides under Art233(3) that an emergency law (a) may not alter: (i) s35 (right to life); or (ii) s36 (freedom from inhuman treatment); or (iii) s45 (freedom of conscience, thought and religion); or (iv) s50 (right to vote and stand for public office); or (v) s55 (equality of citizens); or (vi) s56 (other rights and privileges of citizens). To an extent this reflects the tenor of non-derogatory rights under international human rights treaties. In terms of the International Covenant on Civil and Political Rights, for example, there can be no derogation from several of those constitutional rights (Art4).
Sue Farran is a Reader in Law, University of Newcastle, UK and Rhona Smith is Professor of International Human Rights, University of Newcastle, UK.