Emergency Powers in a Pandemic

EMERGENCY POWERS

IN A PANDEMIC

As lockdowns became a prominent feature of Caribbean life in a region fighting to stave off COVID-19, academics debated the appropriate legal framework for imposing such restrictions on civilian movement.

LOCKDOWN

Dr. Alan Greene

Senior Lecturer Birmingham Law School, United Kingdom Senior Lecturer at the

Birmingham Law

School in the United Kingdom (UK) and author of the book

Emergency Powers in a Time

of Pandemic, Dr. Alan Greene said lockdowns are “100 percent necessary” though such restrictions not only affected individuals who are sick but the healthy as well. However, he argued that a formal declaration of emergency was the best route to take in the UK and neighbouring countries.

Dr. Greene was speaking during a Faculty of Law forum to examine the restriction issue amid growing debate about the use of such measures to curb public movement. His presentation focused on protecting human rights, democracy and the rule of law during a pandemic and was delivered as part of the faculty’s Eminent Speaker Series in March 2021 when lockdowns had begun to take effect.

He made specific reference to the situation in Europe, notably Article 15 of the European Convention of Human Rights that explains that in times of war or public emergency, states may take measures derogating from the convention. However, there is a caveat that those measures must be proportionate to the exigencies of the situation.

“Although emergencies can damage human rights and damage constitutional norms— because we are sacrificing those constitutional norms by damaging human rights and we’re allowing certain things that ordinarily wouldn’t be permissible—I

argue that they can also protect human rights by ensuring that we quarantine, and we limit those exceptional powers only to conditions that justify those powers. We’re not allowing them in times of normalcy,” Dr. Greene said.

He added a note of caution, stating that emergencies are a lot easier to identify when they begin than when they end. Furthermore, he said emergencies have a propensity to trigger other emergencies and pointed to the global financial crisis as an example.

“Unemployment was at record levels, and once the pandemic is over, it remains to be seen what the government response is going to be. Global economic crises and financial crises are the exact conditions under which you get civil unrest, and they are also the conditions in which you get government temptations to crack down on civil unrest … So powers introduced to deal with the pandemic can potentially be applied to situations beyond it, and it might become a bit more difficult to identify when the emergency has ended.”

Dr. Greene said there are also human rights concerns that relate to the rush to normalcy and that urgency has the potential to damage democracy. He once again used the UK as an example, explaining that the rush to resume in-person voting for parliamentarians put those with underlying health conditions at risk of contracting the virus.

In response, regional legal expert Gabrielle Elliot-Williams said a one-size-fits-all approach would not be applicable to the Caribbean. The Mona Campus Law Lecturer said countries in the region have taken two routes to restrict activities, both of which have strengths and weaknesses. Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, St. Kitts and Nevis, and St. Lucia had opted to utilise the state of emergency (SOE) regime, while Jamaica, and Trinidad and Tobago went the route of limitation on rights provided in their respective constitutions in the interest of public health and safety. She said Trinidad and Tobago was managing under a colonialera law, while Jamaica was utilising legislation from 2015. For her, the critical question is, “Does one size fit all?”

“Given that the underlying or unspoken message which the law communicates depends on shared symbolism or shared values and so on, that might cause us to assume that one size can fit all. The message which allows our legal regime might communicate [one way] in Barbados [but] might not be the same as the message communicated in Jamaica, [and] might not be the same as the message communicated in the UK. The messages may vary depending on differences in historical and contemporary uses of emergency

regimes,” she said. “In my view, whether a jurisdiction really needs the quarantining effect of an SOE really has to do with the nature of the system in each context … does it have an independent judiciary with a strong record of protection of rights? Common Law lawyers and judges earn their living making fine distinctions, and there is robust protection in some of our jurisdictions.” Dr. Greene agreed that one size does not fit all, adding that he understood the reluctance by some countries in the Caribbean to utilise emergency powers given their adverse experiences under colonialism. l “… So powers introduced to deal with the pandemic can potentially be applied to situations beyond it, and it might become a bit more difficult to identify when the emergency has ended.”