Protection of human rights in the state of public emergency the role of constitution

Protection of human rights in the state of public emergency the role of constitution Protection of human rights in the state of public emergency the role of constitution

OF PUBLIC EMERGENCY: THE ROLE OF CONSTITUTION

A/Prof Vu Cong Giao ~ Dr Vu Thi Thu Quyen INTRODUCTION

A state of public emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of their citizens In many countries, a government can declare a state of public emergency during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other biosecurity risk

Any country can experience public emergencies in which the constitutional rights and democratic constitutional order can be obstacles to be derogated Most of modern constitutions include emergency provisions that allow the authorities to take actions necessary to safeguard national security, and therefore may permit the government to limit or suspend certain constitutional rights, and to set aside some institutional checks and balances so as to concentrate decision-making power in the central executive

However, many governments have misused emergency powers to violate constitutional rights and undermine the democratic constitutional system Great care therefore needs to be taken in designing a balance constitution’s emergency powers provisions, which allows the state to respond effectively to real emergencies, but that prevents emergency powers from being misused in authoritarian ways'

This paper tries to analyse the role of constitutions in the protection of human rights in the time of public emergency For that, the questions are addressed in this paper include: Why is it necessary to protect human rights in the public emergency situation? What is the international legal basis for the protection of human rights in the state of public emergency? Why does the constitution play an important role in protecting human rights in the state of public emergency? Through what provisions do the constitution protect human rights in the state of public emergency?

1 See IDEA, Emergency Powers - International IDEA Constitution-Building Primer 18, p.10, at

https://www.idea.int/publications/catalogue/emergency-powers,Emergency Powers

PHAN TIENG ANH (PAPERS IN ENGLISH) 103

Protection of Human Rights in the State of Public Emergency in international human rights law Under international human rights law, rights and freedoms may be suspended during a state of emergency depending on the severity of the emergency and a governments policies However, government policy on public emergency must comply with the strict provision on derogation of rights set forth in Article 4 of International Covernant on Human Rights (CCPR) and subsequently concretized in the General Comment No 29: Article 4: Derogations during a State of Emergency, which was adopted by Human Rights Committee at the 1950th meeting, on 24 July 2001’

The Article 4 of ICCPR reads:

1 In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the

ground of race, colour, sex, language, religion or social origin

2 No derogation from articles 6,7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision ,

3 Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation

In relation to paragrapth 2 of the Article 4, non-derivable rights in ICCPR include:

* Article 6 (right to life);

¢ Article 7 (prohibition on torture, cruel, inhuman or degrading treatment); * Article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude); * Article 11 (prohibition on imprisonment on the basis of inability to pay a

contractual obligation);

* Article 15 (principle of legality in the field of criminal law), * Article 16 (right to recognition as a person before the law); and * Article 18 (freedom of thought, conscience and religion)

In addition to the above listed, as recommented by the Human Rights Committee (CCPR), certain other rights are also considered to be non-derogable under general international law and/or in practice too despite not being provided for expressly

1 Source: file:///Users/FShop/Desktop/COVIDstatementEN pdf

under Article 4(2) of ICCPR, which includes the right to a fair trial (article 14) and elements of the principle of non-discrimination e.g to the extent that this protects non-derogable rights’

As emphasised by CCPR, Article 4 of the ICCPR on the one hand allows for a State party unilaterally to derogate temporarily from a part of its obligations under the Covenant; on the other hand, subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards’ And, the restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant® More importantly, the measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature Before a State moves to invoke Article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency* That means, not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation.’ The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation’

The requirements for permissible derogation under the ICCPR can be divided into two types’:

Substantive requirements and principles, which include:

° Existence of a public emergency: there must be a “public emergency which

threatens the life of the nation”, such as armed conflict, civil and violent unrest, a

terrorist emergency, or a severe natural disaster, such as a major flood or earthquake * Principle of conformity with international obligations: Derogations should not be inconsistent with other obligations under international law In no circumstances can the right to derogate from human rights obligations be invoked to justify a violation of international humanitarian law or of a peremptory norm of international law

* Principle of proportionality: Permissible derogation measures must limit the derogated rights only to the extent strictly required by the exigencies of the situation’

CCPR General Comment No 29, para.7-8 CCPR General Comment No 29, para.1

CCPR General Comment No 29, para.1

CCPR General Comment No 29, para.2 CCPR General Comment No 29, para.6 CCPR General Comment No 29, para.6

E4J University Module Series: Counter“Terrorism Module 7: Counter-Terrorism and Situations of Public Emergency https://www.unodc.org/e4j/en/terrorism/module-7/key-issues/derogation-

PHAN TIENG ANH (PAPERS IN ENGLISH) 105

The duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency’

* Principle of non-discrimination: Derogation must be applied in a non-

discriminatory manner, without a distinction solely founded on grounds of race,

colour, sex, language, religion or social origin

Procedural requirements, which include:

* Official proclamation: Derogation measures are only permissible in respect of public emergencies which are «officially proclaimed» When proclaiming a public emergency, States must abide by their constitutional and other provisions of law which govern such a proclamation This «requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed»’

_ * International notification: article 4(3) requires States seeking to declare a public emergency and to derogate from the requirements of the Covenant to inform the United Nations Secretary General of this position

The issue of derogation of human rights in the state of public emergency is also stipulated in regional human rights conventions For example, Article 15 European Convention on Human Rights (ECHR) and Article 27 Inter-American Convention on Human Rights contain similar provisions to the Article 4 of ICCPR Their overarching principles and approaches are largely the same, though some regional variations exist? However, among regional human rights instruments, only the African Charter on Human and Peoples’ Rights does not provide for states of emergency nor the possibility of derogations being made Instead, the Article 22 of the 1999 OAU Convention on the Prevention and Combating of Terrorism states that “[nJothing in this Convention shall be interpreted as derogating from the general principles of international law, in particular the principles of international humanitarian law, as well as the African Charter on Human and Peoples’ Rights” Article 22 is regarded to

the requirement of strict necessity relates to the duration, geographical coverage and material scope of the derogation In particular, in relation to the duration of a derogation, the Human

Rights Committee states that “measures derogating from the provisions of the Covenant must

be of an exceptional and temporary nature” And Principle 54 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (which have been endorsed by the United Nations Economic and Social Council) states that “[t]he principle of strict necessity shall be applied in an objective manner Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed

merely because of an apprehension of potential danger” See E4J University Module Series:

be a ‘safeguard’ clause to prevent States parties from invoking any provisions under the Convention to justify diluting or even violating human rights protections

In addition to the Article 4 of ICCPR and the CCPR General Comment No 29, * the ‘Paris Minimum Standards of Human Rights Norms in a State of Emergency’, adopted by the International Law Association in 1984, is also used to governing states of emergency These Paris Minimum Standards are designed to ensure that ‘even in situations where a bona fide declaration of a state of emergency has been made, the state concerned will refrain from suspending those basic human rights which are regarded as non-derogable’.’ The Paris Minimum Standards provide that the courts should have the power and jurisdiction to decide:

o Whether emergency legislation is in violation of the constitution: do the mate- rial conditions specified for this state of exception exist? Does the situation meet the constitution’s requirement of necessity, meaning that the exercise of emergency pow- ers is strictly necessary to meet the demands of the situation?

o Whether any particular exercise of power is in violation of the emergency pro- visions: have all the required procedures been followed? Has the use of emergency powers met the requirements of necessity and proportionality?

o Whether there is a breach of constitutional provisions protecting rights and freedoms even under a state of emergency Have non-derogable rights been violated? o Whether specific measures violating rights that allow derogation are propor- tional

o Whether emergency measures are in violation of local laws, which are to be re-

garded as remaining in effect unless explicitly repealed

Protection of Human Rights in the State of Public Emergency in constitutions

Constitutions can use several approaches to address emergency provisions Some constitutions do not mention emergency provisions in the constitutional text?, or mention emergencies only in passing.*Other constitutions provide only a loose * Lillich, R B., ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’,

American Journal of International Law , 79 (1985), pp 1072-81

2 Lillich, ibid, pp 1072-81

* For example, Canada’s Emergencies Act of 1988 provides a statutory basis for various types of states of emergency, in response to natural disasters, public disorder, international tension or wax The act principally regulates the circumstances in which these emergency conditions can be declared, the means of parliamentary approval, the duration of the emergency, and the degree to which powers are delegated to the executive, See IDEA, Emergency Powers , ibid, p.10 * For example, the US National Emergencies Act of 1976 regulates the president's authority to declare emergencies It requires that Congress must be notified, that emergencies lapse after

PHAN TIENG ANH (PAPERS IN ENGLISH) 107

framework of general principles concerning emergency provisions, and leave the details to ordinary laws' These arrangements may be acceptable where there is a

strong tradition of constitutionalism and deeply rooted democratic values, but where

legislatures and judiciaries are weak, or where human rights and democratic values are more fragile, this approach could be very perilous Most modern constitutions therefore include emergency provisions that may allow a temporary deviation from normal constitutional safeguards’

Declaring a state of emergency normally involves suspending or restricting certain rights and liberties that are otherwise constitutionally protected In some countries, the declaration of the state of emergency may have a direct effect on constitutional rights even without further legislative action In the other countries, constitutions give the legislature discretion to enables Parliament to nullify almost all guarantees of constitutional rights However, such sweeping provisions are unusual in modern democratic constitutions The usual practice is to recognize that

some rights and freedoms are more sacred or fundamental than others, and that a

state of emergency, in seeking to find a balance between the rights of individuals and the good of the community, may therefore treat different rights and freedoms in different ways* For example, the Constitution of Estonia (article 130) stipulates that certain rights are always protected, even during an emergency, including citizenship rights, procedural rights and guarantees of the rule of law, the right to life, and the prohibition of torture, prohibition of imprisonment for debt, the right to a fair trial and presumption of innocence, no punishment without law and no retroactive laws, right to compensation for unlawful actions, familial rights, various socio-economic rights, prohibition of arbitrary extradition, and freedom of thought

and religion® Another example is the Constitution of Poland, of which the Article

233 provides that ‘the statute specifying the scope of limitation of the freedoms and rights of persons and citizens in times of martial law and states of emergency shall not limit’ the dignity of the person, citizenship, protection of life, humane treatment, ascription of criminal responsibility, access to a court, personal rights,

one year unless renewed and that Congress may terminate an emergency by joint resolution See IDEA, Emergency Powers, ibid, p.10

: For example, Article 103 of the Constitution of the Netherlands, allows Parliament, using ordinary

statues, to define a state of emergency, to declare the legal consequences of an emergency in terms of the restrictions on rights and the concentration of powers, and to determine in which cases a state of emergency may be declared It also allows a joint session of Parliament to decide the duration of a state of emergency See IDEA, Emergency Powers, ibid, p.10

See IDEA, Emergency Powers, ibid, p.10

3 See IDEA, Emergency Powers, ibid, p.8

See IDEA, Emergency Powers, ibid, p.21

5 Constitution of Estonia 1992 (rev 2015), at https:/Awww.constituteproject.org/

freedom of conscience and religion, the right to petition, or the rights of the family and children’

Emergency situations may require concentrated and decisive action, for which the executive is better suited than the legislature’ Many constitutions therefore enable the executive, during an emergency, to take actions—including issuing orders having the force of law-—which might otherwise be the legislature’s responsibility® Such concentration of lawmaking power in the executive branch disturbs the usual balance of powers in a democratic constitution, and may tempt the government to

over-use these powers

The constitutional checks and balances might help to protect human rights against the misuse of administrative powers in the state of public emergency This falls into two main categories*: (a) those that strengthen legislative oversight and (b) those that enable the judiciary and fourth branch institutions to protect the integrity of constitutional institutions during a state of emergency

In relation to legislative oversight, one simple rule is to require the legislature to assemble automatically if a state of emergency is declared, or to remain in session throughout the emergency.’ Some constitutions provide for the establishment of special legislative scrutiny and oversight mechanisms that operate in emergency situations.’ Such an emergency committee may also be a useful substitute for

7 Constitution of Poland 1997 (rev 2009), at https://www.constituteproject.org/ 2 See IDEA, Emergency Powers, ibid, p.24

> For example: The Constitution of Namibia (article 26) provides that during a state of emergency

the president ‘shall have the power by praclamation to make such regulations as in his or her

opinion are necessary for the protection of national security, public safety and the maintenance

of law and order’ The Constitution of Ecuador (article 165) allows the president to issue decrees for certain purposes, including the advance collection of taxes, the reallocation of public funds, the imposition of censorship, the mobilization of the armed forces and police, and the closing

of ports, airports and borders See IDEA, Emergency Powers, ibid, p.24

See IDEA, Emergency Powers, ibid, p.21 `

For example, in Ukraine Constitition, Parliament must assemble within two days after a declaration of a state of emergency (article 83) Or in Constitution of Vanuatu, it is required the legislature to remain in session throughout the emergency, or may give legislatures the power to meet during the emergency without waiting for convocation by the executive or head of state (Article 70) See the Ukraine Constitution 1996 (rev 2016) and Vanuatu Constitution 1980 (rev 2013), at https:/Awww.constituteproject.org/

For example, in Ukraine Constitition, Parliament must assemble within two days after a declaration of a state of emergency (article 83) See the Ukraine Constitution 1996 (rev 2016)

For instance, Brazil’s constitution (article 140) states: ‘After hearing from party leaders, the

Executive Committee of the National Congress shall designate a Committee composed of five of its members to monitor and supervise implementation of measures concerning a state of defence and state of siege” See Constitution of Brazil 1988 (rev 2017), at https:/www constituteproject.org/

PHAN TIENG ANH (PAPERS IN ENGLISH) 109

For the rule of law, the legality of emergency power may be tested in the courts Accordingly, some constitutions specify the right of the judiciary to exercise judicial review in relation to: (a) a declaration or extension of a state of emergency and/or (b) the exercise of emergency powers For example, the Constitution of Kenya (article 58) expressly permits the Supreme Court to decide on the validity of: (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; and (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency* Or, the Constitution of Slovakia (article 129) states: ‘The Constitutional Court shall decide on whether a decision on declaring an exceptional state or an emergency state and other decisions connected to this decision were issued in conformity with the Constitution and constitutional law.’ 4

However, judicial review is not always sufficient to protect against the abuse of

emergency powers’ It is often a slow and complex process, which may take some time to catch up with alleged violations of rights Judges, moreover, are state functionaries and usually belong to the same elite as members of the executive and legislature’ Conduding remarks

When designing a constitution, a delicate balance must be struck between the need for protection of human rights and the obligation to protect the public and vital national interests, which may sometimes involve limiting those rights’ The optimal

See IDEA, Emergency Powers, ibid, p.29 See IDEA, Emergency Powers, ibid, p.29

See Constitution of Kenya 2010, at https://www.constituteproject.org/

See Constitution of Slovakia 1992 (rev 2017), at https://www.constituteproject.org/ See also

Constitution of South Africa 1996 (rev 2012), and Constitution of France 1958 (rev 2008), at

https:/www.constituteproject.org/ See IDEA, Emergency Powers, ibid, p.30

® Sagar, R., ‘Emergency powers’, in S Choudhry, M Khosla and PR Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford: Oxford University Press, 2016).c

See IDEA, Emergency Powers, ibid, p.8

i

balance between these objectives is not fixed It can shift, with different priorities

prevailing at different times and in different circumstances In normal times, a

democratic constitution might emphasize inclusion and deliberation in decision- making, but in times of emergency swift and decisive executive action might have greater priority’

Emergency constitutional provisions are therefore necessary because they enable the state to respond effectively to crises while keeping the exercise of emergency powers within the rule of law and human rights framework If they are well designed and properly applied, emergency constitutional provisions are a self-defence

mechanism for democracy and human rights If a constitution did not contain such

emergency provisions, then the state would have to either: (a) stand with its hands tied, unable to undertake urgent actions necessary to deal with the emergency or (b) exercise such powers outside the law Either of these outcomes could be very dangerous for democracy and human rights’

In short, when considering emergency provisions, constitution designers should therefore pay special attention on the issue of protection of constitutional rights In

adition, check and balance system are also improved in order to prevent the missuse

of emergency powers References:

CCPR General Comment No 29: States of Emergency (Article 4)

Canada’s Emergencies Act of 1988, Canada’s Emergencies Act of 1988

US National Emergencies Act of 1976, https:/Awww.congress.gov/bill/94th-congress/house-bill/3884

Constitution of Netherlands 1814 (rev 2008), at https://www.constituteproject.org/ Constitution of Estonia 1992 (rev 2015), at https://www.constituteproject.org/ Constitution of Poland 1997 (rev 2009), at https://Awww.constituteproject.org/

Constitution of Namibia 1990 (rev 2014), at https://www.constituteproject.org/

Constitution of Ecuador 2008 (rev 2015), at https:/Avww.constituteproject.org/

Constitition Ukraine 1996 (rev 2016), at https://www.constituteproject.org/ Constitution of Vanuatu 1980 (rev 2013), at https://www.constituteproject.org/ Constitution of Brazil 1988 (rev 2017), at https://www.constituteproject.org/ Constitution of Kenya 2010, at https://www.constituteproject.org/

Constitution of Slovakia 1992 (rev 2017), at https://www.constituteproject.org/ Constitution of South Africa 1996 (rev 2012), at https://www.constituteproject.org/ 1 See IDEA, Emergency Powers, ibid, p.8

2 See IDEA, Emergency Powers, ibid, p.6,7.

PHAN TIENG ANH (PAPERS IN ENGLISH) 111 Constitution of France 1958 (rev 2008), at https://www.constituteproject.org/

E4J University Module Series: Counter-Jerrorism Module 7: Counter-Terrorism and Situations

of Public Emergency _https://www.unodc.org/e4j/en/terrorism/module-7/key-issues/

derogation-during-public-emergency.himl

Lillich, R B., ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’,

American Journal of International Law , 79 (1985)

Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant

on Civil and Political Rights, at https://www.icj.org/wp-content/uploads/1984/07/Siracusa-

principles-ICCPR-legal-submission-1985-eng.pdf

Sagar, R., ‘Emergency powers’, in S$ Choudhry, M Khosla and P Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford: Oxford University Press, 2016).