Although countries have different responses to the pandemic, physical distancing has been the common approach, ranging from controls on movement to lockdowns, curfews, quarantine and states of emergency.
Of all the measures, human rights groups have been most alarmed by the option of announcing a state of emergency to tackle COVID-19 because it poses the most serious challenge to the protection of human rights. The term “state of emergency” creates a category in which a government is permitted to impose limitations on human rights.
The idea of a “state of emergency” is also shaped by a dichotomy between normality and exception with the regard to respecting human rights. It shifts the way we perceive the relationship between principles of justice and principles of order, and holds that societal goals – often defined by the state – are superior to individual rights.
There are three countries in ASEAN that have declared states of emergency to deal with the pandemic. Cambodia’s Senate passed the Law on National Administration in the State of Emergency on April 30, which provides the government with “extraordinary powers” in the time of emergency for a period of three months.
The Philippines Congress issued Republic Act 11469 declaring a national emergency due to COVID-19 on March 23 for the period of six months, and Thailand adopted the Emergency Decree proclaiming a state of emergency on March 26 for one month, which was later extended for another one month.
According to the United Nations Human Rights Committee, a state of emergency should only be declared by a state if it meets two fundamental conditions: first, the situation amounts to a public emergency that threatens the life of the nation and its existence; and second, the measures are absolutely necessary to address the situation.
Public health is a legitimate reason to restrict human rights, as stated in the International Covenant on Civil and Political Rights, but it should always be subject to the principles of legality, necessity and proportionality. Moreover, the rule of law must be respected at all the times regardless of a state of emergency.
The declaration of states of emergency by countries in the region begs many substantive and procedural questions, particularly whether it is even an effective way to slow the spread of the coronavirus.
Based on the monitoring documentation of Indonesia’s office for the ASEAN Intergovernmental Commission on Human Rights (AICHR), human rights in the region have been compromised during these states of emergency. This includes limitations on freedom of movement, expression and opinion, peaceful assembly, religion, access to information, the right to health, work, education and privacy. This has now spilled over to press freedom, the right to food, housing and personal security.
People are living in fear of being infected by the virus and facing persecution, especially if they make comments on social media concerning their government’s policies related to COVID-19, or when distributing food to the poor, or just being migrants.
Regrettably, this situation is now a reality in almost all ASEAN member states, regardless of whether a state of emergency has been declared or not. However, state of emergency laws make the derogation of human rights justified.
The state of emergency has also undermined the rule of law and the functioning of the checks and balances system, argued the Cross-Cultural Foundation in Thailand in its press release on April 19.
The laws on the state of emergency have enabled public officials to exercise their power disproportionately and weaken the role of the legislative and judicial branches. Sadly, the countries that have not declared a state of emergency have also weakened the role of their respective legislative branches by limiting their sessions.
In terms of cases and deaths, countries in both camps – those imposing a state of emergency and those that are not, such as the Philippines and Indonesia – are still struggling to control the virus.
Perhaps, declaring a state of emergency is not the key to tackling a public health crisis like the COVID-19 pandemic, but rather transparency, access to information and quick responses through conducting large-scale testing, tracing and treatment as well as implementing risk assessment, management and communication.
In addition, we note that countries that have not declared a state of emergency have used or enacted laws that share characteristics with a state of emergency. Whether or not a state declares a state of emergency, it appears the outcomes have been the same for human rights, the rule of law and governance
In terms of substantive inquiry, for states that declare a state of emergency, we need to assess whether COVID-19 poses an existential threat to the nation. Indeed, SARS-CoV-2 is a dangerous virus, but the extent to which it poses a risk to the existence of a nation is debatable.
Another assessment that needs to be made is whether other conventional measures have been exhausted or have proven insufficient. My reflection so far is that some member states have made a decision to declare a state of emergency out of convenience rather than necessity, doing so simply because they can, as it an option under their constitution and is permissible under international human rights law.
Of course, the state has the discretion to decide whether to declare a state of emergency in response to a situation that is considered dangerous. In many contexts, a state’s decision may also be shaped by the availability of political and legal modality, capacity, limitations and the role of civil society.
However, we should all worry about the elasticity of state practices in declaring a state of emergency. Especially, if it is exercised with less prudence and consideration to the proportionality element. Such a practice not only sets a bad precedent but also undermines the normativity of the law.
Declaring a state of emergency should always be a last resort, not the first option in addressing a public health crisis.
The writer is representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights (AICHR) for 2019-2021.
Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.