Covid-19: emergency law-making highlights crucial role of judiciary

Margaret TaylorWednesday 8 July 2020

When the Covid-19 pandemic hit, governments around the world scrambled to put in place emergency legislation that would protect their citizens and prevent their health systems from becoming overwhelmed.

These measures have, by and large, been accepted as a necessary response to an extraordinary situation. Some of the law-making, however, has been controversial. In India, for instance, Prime Minister Narendra Modi gave his government significant powers when he declared a state of emergency in late March, paving the way for him to impose one of the strictest lockdowns anywhere in the world.

That he did so by invoking India’s Disaster Management Act 2005 and not, as had been expected, the colonial-era Epidemic Diseases Act 1897, has huge implications for the rule of law. As Avi Singh, a counsel at New Delhi-based Cicero Chambers, points out, the Disaster Management Act severely limits the Indian judiciary’s ability to intervene if individual rights are violated by putting a bar on the jurisdiction of all but ‘the Supreme Court or a High Court’. ‘Legislation that doesn’t take away rights has taken away rights,’ Singh says.

If emergency legislation bypasses the rule of law then rights are lost and those rights are very difficult to recover

Ian McDougall
President of the LexisNexis Rule of Law Foundation

It is clear from what is happening in other countries that the judiciary has an important role to play in ensuring the rule of law is upheld during these unprecedented times. In Brazil, where the death rate has surged past the 50,000 mark, President Jair Bolsonaro was ordered by a federal judge to wear a facemask in public in late June following a lawsuit by lawyer Victor Mendonça Neiva, who accused Bolsonaro of flouting laws designed to stop Covid-19’s spread.

Other matters that have come before the courts have been concerned with the way emergency measures have encroached on individuals’ lives. In El Salvador, for example, the country’s Supreme Court ruled in May that President Nayib Bukele had overstepped his powers by declaring a state of emergency in order to extend stringent lockdown measures without congressional approval.

In the US state of Wisconsin, meanwhile, the Supreme Court struck down an attempt by Governor Tony Evers to extend stay-at-home orders, ruling in May that he did not have the authority to do so. Justice Daniel Kelly wrote of the order: ‘This comprehensive claim to control virtually every aspect of a person’s life is something you normally associate with prison, not a free society governed by the rule of law.’

Yet judges have only been able to make these rulings because the cases have come before them for determination in the first place. As the situation in India shows, that is not always possible, particularly when courts themselves are restricted due to the pandemic.

Ravinder Thukral, a partner at Brown Rudnick, notes that even in countries where litigation is possible, parties need to have deep pockets and a strong motivation to pursue it. In the United Kingdom, for example, a high-profile action is being brought by airlines British Airways, easyJet and Ryanair. They are seeking judicial scrutiny of a rule that came into effect in early June and which requires anyone arriving in the UK by plane to spend 14 days in quarantine.

Thukral notes a large number of organisations, including non-governmental organisations and trade unions, are willing to put their weight behind such actions, while legal crowdfunding is also making it easier for ordinary people to get together to hold the state to account. That said, Thukral believes there is a case for litigation funders to get involved too, even though a constitutional challenge would not result in an immediate return for their investors.

‘Questions are being asked about whether funders have a bigger role to play when it comes to the litigation that they decide to fund,’ he says. ‘The distance between a lot of public law challenges and the commercial cases that they bring is very short. If, for example, the lockdown is unlawful, the commercial consequences of that are massive.’

For Natascha Tunkel, Officer at Large on the IBA Mediation Committee and a partner at KNOETZL, this is key because, as far as the judiciary is concerned, ‘if you don’t raise a topic there is no topic’.

‘That’s how a judicial system works,’ she adds. ‘Judges are not there to police things; they are there to step in when someone has an issue and raises an action.’

As things stand, the number of challenges being brought around the world remains relatively small considering the extent to which people’s civil liberties have been curtailed. That is likely to change in the coming months, as countries begin to ease lockdown measures and individuals and organisations assess the impact emergency powers have had.

‘For the moment, there is a majoritarian consensus on the legitimacy of the emergency measures issued by the [government] to address the crisis on the grounds of public health reasons,’ notes Hugo Vivot, Senior Vice-Chair of the IBA Public Law Committee and a partner at Argentinian firm Hope Duggan & Silva. ‘However, these public health reasons may amount to an overreach in government constitutional powers and are capable of colliding with individual rights. It is therefore essential [to have] the intervention of both judicial power and legislative power in order to uphold the rule of law.’

It is in everyone’s interests that such interventions can be made. As Ian McDougall, President of the LexisNexis Rule of Law Foundation, notes, while it is easy for governments to dispense with the rule of law in times of panic and upheaval, it is not always easy to reverse those decisions if they are allowed to go unchecked.

‘If emergency legislation bypasses the rule of law then rights are lost and those rights are very difficult to recover,’ he says. ‘Emergency powers are necessary in times of crisis, but the abandonment of the rule of law is not a response that helps. In fact, it undermines the crisis and undermines the thing that we are trying to achieve.’