On 30 January 2020, the World Health Organization declared coronavirus a public-health emergency of international concern. Since then, several countries around the world have declared national emergencies. The exercise of emergency powers in Southasia, whether in late 2007 in Pakistan or between 1975 and 1977 in India, is often associated with state overreach and abuse of human rights. Himal Southasian thought it would be a good time to revisit the history of emergency regulations to see how they have been used in the past and what their legacies may portend for Southasia.

In this interview, we speak to Asanga Welikala, a lecturer in public law at the University of Edinburgh and a constitutional-law expert. He describes the common origins but divergent paths of Southasia’s emergency regulations, the different considerations for authoritarian and democratic regimes in addressing emergencies, and the impact that prolonged emergencies can have on democratic institutions.

Himal Southasian: Could you tell us about the origins of emergency regulations as a legal concept and how much public-health concerns have factored into this history?

Asanga Welikala: States of emergency and emergency regulations are separate, although closely related concepts in law. A state of emergency is the special legal regime of powers and rules that is brought into operation when a country is facing a grave threat. The threat could be a war, an insurgency, a natural disaster, a famine, or a virulent disease such as the coronavirus (COVID-19) pandemic we are facing today. But the key point is that it must be a clear and present danger to the life of the nation that cannot be adequately addressed with the normal powers and resources available to a government. In such situations, it is recognised that the government must be empowered with additional powers by law to tackle the threat and protect the people.

For postcolonial political elites, the colonial legal machinery was a necessary and convenient tool of governing newly independent and often unstable societies.

These powers can be very extensive, depending on the nature and extent of the threat, and will often involve curbing some individual rights in the interests of the wider public. So, for example, when an emergency such as the coronavirus pandemic requires the government to be given powers to impose curfews for long periods to prevent large gatherings or the free movement of people, then this is seen as a justified limitation on the individual rights of association, movement, and expression. But it is understood that this is justified only when the need to protect the community is overwhelming, and that the government is only given these powers until such time as the threat has abated.

Emergency regulations (as they are called in Sri Lanka, and by other names elsewhere) are the legal rules that governments make to deal with the threat in the exercise of the wider powers that have been given to the government under a state of emergency.

HSA: Are there large differences – or notable similarities – between the origins of emergency regulation across countries in Southasia? How close are the modern-day versions to the early, largely colonial, laws?

AW: There are, of course, differences in the laws of different countries, but the origins of emergency laws in most Southasian countries have a common origin in the principles of English common law, because most countries in the region are former British colonies and derive their modern legal systems from the law of the imperial power. In fact, emergency laws are an area especially in which the colonial rule remains a major influence to this day, because most Southasian countries have continued the colonial laws in force at the time of independence. For postcolonial political elites, the colonial legal machinery was a necessary and convenient tool of governing newly independent and often unstable societies. However, many countries in the region have also had constitutional bills of rights and interventionist judiciaries after independence, and sometimes these have curbed the excesses in the use of colonial emergency laws (and the source of these liberties and the traditions of independent judiciaries are themselves a legacy of English law).

In democracies, by contrast, the difference is that the need to empower the government to protect the safety and security of the community has to be evaluated together with, rather than against, the competing consideration of the values of a free society.

Some Southasian countries, such as Pakistan and Bangladesh, have experienced long periods of military rule, which have invariably influenced their legal systems in authoritarian directions and made them distinct from those that have remained democracies. In other countries, there have been long periods of internal conflict, and this is again a factor that has tilted legal systems in authoritarian directions. So while there is a common origin in the British colonial legacy, the pathways in which emergency laws have developed in Southasian countries have depended on the challenges they have faced as independent countries.

HSA: Have debates on the trade-offs between liberty and security always been a fixture of conversations around emergency powers of the state?

AW: In democracies, it is the central question, in authoritarian regimes, not. In authoritarian regimes, the only relevant consideration in addressing emergencies is about how efficiently it can be done. They do not place value on competing interests, like the need to protect basic freedoms and the rule of law. Whatever works best in neutralising the causes of the emergency, is best.

In democracies, by contrast, the difference is that the need to empower the government to protect the safety and security of the community has to be evaluated together with, rather than against, the competing consideration of the values of a free society. There is, of course, the recognition that sometimes governments need extraordinary powers to deal with exceptional threats. But democracies, in accepting this reality, devise ways to accommodate governmental powers within a pre-established legal framework, rather than leave it to governments to use raw power and untrammelled discretion to deal with emergencies in an unregulated way. In the design of democratic constitutions, there is therefore a distinction made between ‘normalcy’ (when governmental powers are circumscribed by the rights of citizens), and ‘the exception’ (which are periods of emergency that require an expansion of governmental power in the interests of security and a corresponding curtailment of individual and collective liberty). This distinction is made in order to achieve a balance between two competing objectives: the reality of emergencies and the philosophical commitment of democracies to individual rights and the rule of law. The constitutional and legal frameworks that are then built around this distinction are aimed at balancing the two competing aims. If the institutional balance tilts too much in favour of liberty, then security will suffer and even anarchy may follow. There can be no liberty in a state of anarchy or disorder. On the other hand, if the balance tilts the other way, then governments will have few or no constraints on their power, which inevitably means the destruction of freedom and the rule of law. However efficient it might be in combating emergencies, this is not a morally defensible type of political order according to the logic and values of constitutional democracy.

Thus it was that emergency regulations were used by the government to regulate matters unconnected to the emergency (e.g., prices, weights and measures) because regulations were easier and more convenient to promulgate than ordinary laws involving parliamentary debate and scrutiny.

Democratic constitutions that are built on this common philosophical basis, therefore, have some shared institutional characteristics in the way that they provide for the exercise of emergency powers. A state of emergency is something that will have to be brought into force by a positive act, on the basis of a justification of exceptional threat. There will be requirements for the declaration of a state of emergency (so that everyone knows that these powers are in operation), procedures for extending the state of emergency (often involving parliamentary approval), and a formal termination of the state of emergency once the threat has abated. There will be pre-established limits even to the expanded powers of the executive, often in the form of a statement of rights that cannot be abridged even in the face of the most extreme danger (eg., torture). And there will be checks and balances: it is the executive that is the dominant actor in an emergency, but in a democracy, heightened executive powers will be matched by heightened powers for legislative oversight and judicial supervision of executive action.

These may describe the ideals and no democracy may ever meet them in full, but the important point is that constitutional democracies establish these standards, whereas authoritarian regimes do not. Governments can be held to account in these ways in democracies, whereas there is no way of doing so in autocracies.

HSA: How might the exercise of emergency regulations in the context of public health be different or similar to emergency powers exercised during periods of communal or political conflict? How might they be different from or similar to emergency laws employed during natural disasters (floods, droughts, earthquakes, etc)?

AW: The content of emergency laws will vary according to the nature of the crisis they are directed at. A public-health emergency will involve rules based on medical and scientific knowledge; a counterinsurgency will require a very different set of responses. But in essence, these laws share a similar character in that it would be constitutionally permitted for them to impinge on individual rights in ways and to an extent a law in normal conditions will not be permitted to do.

HSA: Can you give us some examples of the abuse of emergency regulations? What kinds of protections do exist – or should exist – for citizens to seek accountability from governments that have declared states of emergency?

AW: Abuse of emergency powers are a fact of life, certainly in Southasian countries, and even in more consolidated democracies elsewhere. Especially when states of emergency become protracted – for example, due to long drawn out conflicts – both governments and societies become accustomed to rule by emergency powers – a problem known as ‘the normalisation of the exception’ – because the exception has become the norm and the distinction between normal and exceptional conditions I mentioned previously has broken down.

For example, in Sri Lanka during the period when the state was fighting a war in the northeast and an insurgency in the south, emergency rule became the norm. Thus it was that emergency regulations were used by the government to regulate matters unconnected to the emergency (e.g., prices, weights and measures) because regulations were easier and more convenient to promulgate than ordinary laws involving parliamentary debate and scrutiny.

In emergency situations, it may often be more popular to support authoritarian action than adopt complex political stances based on the values of constitutional democracy, and the paradox is that the very responsiveness of politicians to the electorate in democracies creates this disincentive.

Another very common feature is that protracted emergency rule facilitates a culture of executive convenience and impunity, such that informal practices build up that have no basis in law, but are nevertheless accepted as valid executive action. In many Southasian countries, police practices involving torture and ill-treatment or communal discrimination are endemic, even though they are clearly prohibited by law. But they crystallise over time because of the overall atmosphere created by protracted emergency rule.

HSA: What sort of record do legislatures and judiciaries in the region have in curbing the excesses of emergency state powers? Are there examples of key constitutional or statutory limits to such powers or judicial precedents?

AW: The record of legislatures in holding executives to account is generally quite poor. Judiciaries have been better than legislatures, and in some countries, better than others. There are many reasons, depending on the context, as to why legislatures have a poor record of oversight. Many countries in the region are institutionally weak, and have struggled to build cultures of parliamentary democracy, especially those that have emerged from military rule. In those countries where parliamentary democracy has not been ravaged by military rule, executives tend to dominate legislatures, through the party system, patronage, corruption, and the poor quality of legislators. A common feature of Southasian democracy is political mobilisation on the basis of communal loyalties, such as ethnicity or religion or caste. When communalism, and not the civic virtues of individual freedom and the rule of law, is the defining basis of political culture, there is very little incentive for politicians to protect constitutional democracy and every incentive to patronise the interests of politically dominant communities.

Anyone who thinks addressing a global pandemic – requiring a sophisticated and nuanced blend of skills, knowledge, judgement, and international cooperation – is much the same thing as prosecuting a counter-terrorism campaign is dangerously deluded.

Moreover, even in relatively strong democracies, both the legislature and executive are subject to electoral pressures. In emergency situations, it may often be more popular to support authoritarian action than adopt complex political stances based on the values of constitutional democracy, and the paradox is that the very responsiveness of politicians to the electorate in democracies creates this disincentive.

The judicial record in Southasia is somewhat better, from the perspective of the defence of civil and political liberties against overweening governments and ineffectual legislatures. As a region, we have had some of the most activist judiciaries, particularly Supreme Courts, anywhere in the world. While there have been peaks and troughs in the record of the courts as guardians of constitutionalism, it is undeniable that at crucial moments of major constitutional stress, the Supreme Courts of India, Pakistan, and Sri Lanka, for example, have repeatedly demonstrated independence and creativity in standing up to powerful governments in favour of citizens’ rights and the rule of law. It is to be hoped that this tradition of judicial independence in the region will continue, as the new challenges of the post-COVID-19 era manifest themselves.

HSA: Historically, what impact has the employment of emergency regulations had on state institutions and democratic rights? Given the types of governments in place in several Southasian countries, are there grounds for worrying about the institutional impact of COVID-19 mitigation measures?

AW: There are many reasons to seriously worry about the long-term impact on democratic institutions of the COVID-19 crisis. It is a pandemic, and a global crisis of scale and reach, that the world has not experienced for several generations. As a result, even liberal democracies like Australia, Canada, and the UK are taking measures that would have been thought unthinkable just a few weeks ago. Australia is shutting down its Parliament until August. Canada is giving its government public spending powers without parliamentary scrutiny until December. The UK is giving its government extensive powers to legislate without adequate parliamentary scrutiny for the foreseeable future. New Zealand is distinctly in the minority of countries when it seeks to use technology to ensure legislative scrutiny of the executive’s response to the crisis, at a time when the very nature of the crisis demands social distancing and this has been the excuse to shut down parliaments elsewhere. And the world’s more authoritarian governments have been quick off the block. In Israel and Hungary, the ostensible response to the crisis has meant a massive arrogation of power by the executive. COVID-19 and its likely adverse impact on constitutional democracy comes at a time when it was already in peril, not only in developing democracies, but also in the liberal heartlands of the West.

While there have been peaks and troughs in the record of the courts as guardians of constitutionalism, it is undeniable that at crucial moments of major constitutional stress, the Supreme Courts of India, Pakistan, and Sri Lanka, for example, have repeatedly demonstrated independence and creativity in standing up to powerful governments in favour of citizens’ rights and the rule of law.

In Southasia, we have many governments whose commitment to constitutional democracy has been in question well before the crisis. They already have a record of explicitly using ethnic nationalism, religious communalism, and other types of intolerant ideology as the basis of political mobilisation for political gain, and once in power, of dismantling liberal institutions in favour of electoral authoritarianism. As the pressure grows to deal decisively with the crisis, those with authoritarian tendencies will inevitably capitalise on the situation to accrete more power and weaken accountability. They will be assisted by the bottom up pressure of their electorates wanting decisive action, the handy example of even liberal democracies taking liberties with constitutional restraints, and an overall international political environment in which the defence of democracy is much less of a priority than it has ever been since the end of the Cold War. This represents the looming challenge for defenders of democracy in Southasia.

HSA: Some have compared the population control and surveillance in COVID-19 emergency management to counter-terrorism management. Are there any merits to such comparisons? What are the dangers of making such comparisons?

AW: As I mentioned earlier, there are certain essential commonalities in emergency measures regardless of the nature of the crisis. But the comparison ends there. Anyone who thinks addressing a global pandemic – requiring a sophisticated and nuanced blend of skills, knowledge, judgement, and international cooperation – is much the same thing as prosecuting a counter-terrorism campaign is dangerously deluded. Southasian states do not have a counter-terrorism record that stands up to any plausible scrutiny on human- rights grounds. That is not a record that should be invoked as a success story in dealing with the unprecedented challenge of COVID-19 – if the response to it is also to be conducted in a way that ensures the survival of constitutional democracy in Southasia.