Sean Molloy and Sue Farran

There are fifty-eight ’Small Island Developing States’ (SIDS) listed by the United Nations, thirty-eight of which are members of the UN.  In these, as elsewhere across the world, governments had to respond rapidly to the unseen enemy of Covid-19. This post focusses on those SIDS located in the Pacific, many of which were former colonies of Britain, and the legal powers which were exercised to protect their citizens. Specifically, as countries across the globe invoke constitutional provisions allowing for and facilitating a state of emergency, this post considers the legal infrastructures that allow for exceptional measures in response to extraordinary times.

States of Emergency and Covid-19

In the Pacific region there are thirteen SIDS: Fiji, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Timor Leste, Tonga, Tuvalu, and Vanuatu. In terms of economic wealth, population and land size there is great diversity but one thing they all have in common is a written constitution. In SIDS, many constitutions were enacted following, or just prior to the end of, periods of Colonial rule. For instance, after being governed by a series of countries, Papua New Guinea established its sovereignty in 1975 adopting its constitution in the same year. Vanuatu’s Constitution was created in 1980, following independence movements against Franco-British Condominium rule.  Timor Leste became the first independent state of the 21st century approving its constitution on March 22, 2002. Many of these early constitutions have been subsequently amended or replaced.

Constitutions in newly independent states can serve various purposes. Most basically and like all constitutions, they can define the nature of government (for, example parliamentary democracy, constitutional monarchy), the institutions of the state (for, example, the police, courts, legislature), the separation of powers between different organs (for example, between parliament and the executive, the government and the judiciary) and set out the relationship between the state and citizens.

In contexts emerging from periods of repression or colonial rule, constitutions can also serve another, additional purpose; namely, ensuring that similar power grabs do not occur internally. Upon independence, it is inevitable and, if done in appropriate ways, positive, that different factions emerge to challenge for political leadership. Electoral contests are, arguably, the hallmark of a democracy. Nevertheless, there is always a risk for those that fall short of gaining a seat at the table of politics (and the numerous economic benefits that attach to the status of power) that similar forms of repression and marginalisation suffered under colonial rule will be replaced but replicated by new elites. With this in mind, constitutions enacted after colonial rule may incorporate potential safeguards that seek to limit power imbalances in favour of certain groups over others.

This is important in the context of the current covid-19, particularly when considering how these constitutions balance the need for exceptional measures to respond to crises, while also safeguarding against the conflagration of these powers for personal and party gain. As the virus swept the globe, a number of SIDS, like many other countries, declared a state of emergency. These included Federated States of Micronesia (14 March 2020), Nauru (17 March 2020), Tonga (20 March 2020), Samoa (20 March 2020, Solomon Islands (25 March 2020), Kiribati (26 March 2020), and Fiji (13 April 2020), as examples  (others opted not to, for example, Palau see, Statement from the President (17 March 2020).

Declaring a state of emergency (or health emergency as they are often termed in SIDS) allows the authorities, in times of urgent necessity, to take exceptional actions which often bypass rights and legislative processes, in order to safeguard national security, maintain law and order, protect citizens’ lives and property, keep essential public services working, concentrate relief resources and direct them to the areas of greatest need, and in general to restore normality (see Ní Aoláin and Gross, 2006). For instance, pursuant to Art 78(1) of Nauru’s constitution:

During the period during which a declaration of emergency is in force, the President may make such orders as appear to him to be reasonably required for securing public safety, maintaining public order or safeguarding the interests or maintaining the welfare of the community.

In the context of covid-19, the transferring of these powers is justified in light of a health crisis. Nevertheless, such provisions also carry significant risks. For instance, in granting powers to the state that circumvent ‘normal’ legislation, this transfer of power can have adverse effects on the enjoyment of rights to life, a fair trial, liberty and security, and freedom of assembly and association, as examples (see Amnesty InternationalJoint Committee on Human RightsGreene). In Fiji, for example, there has been widespread criticism of efforts to stifle the press, while in Samoa there have been concerns raised about the passage of controversial bills at a time when Parliament is not sitting. Moreover, in any given state of emergency, there is the risk that these exceptional powers and permitted restrictions on rights can become normalised.

Because many of the risks associated with declaring a state of emergency are similar to the risks facing newly independent states, it might be expected that constitutions of formerly colonialised SIDSs contain important approaches to the construction of their constitutions (although it should be noted that some SIDS constitutions, such as Tonga, do not include provisions on a state of emergency, relying instead on legislation).

States of Emergency in SIDS Constitutions

Many SIDS constitutions permit the government in question to declare a state of emergency. For instance, under art 77(1) of the Nauru Constitution, the President, if satisfied that a grave emergency exists whereby the security or economy of Nauru is threatened may, by proclamation, declare that a state of emergency exists. In Samoa, Article 105 provides for the making of State of Emergency Orders by the Head of State (O le Ao o le Malö) in consultation with the Cabinet, if he is satisfied that ‘a grave emergency exists whereby the security or economic life of Samoa or of any part therefore is threatened’. Proclamations made under this power have been used and amended as the pandemic has unfolded.

As identified, granting powers such as these risk the normalisation of otherwise exceptional measures. Nevertheless, SIDS constitutions can be seen to include a number of safeguards. For instance, in Nauru, if Parliament is sitting, a state of emergency lapses after seven days. If it is not sitting then the period is 21 days, unless approved in a resolution by a Parliamentary majority. If the reasons presented are unagreeable, parliament can thus refuse to extend the state of emergency in question. Similarly, in Palau, if the President exercises his powers to declare a state of emergency, he must call a meeting of the legislature (Olbiil Era Kelulau) to affirm or disapprove the state of emergency, and he may not exercise emergency powers for more than ten days without ‘the express and continuing consent’ of this body. In Samoa, a Proclamation of Emergency only remains in force for 30 days if not revoked earlier, although subsequent proclamations may be made. Any such proclamation has to be laid before the Legislative Assembly either at the time or as soon as it can be called. Any orders made by the Head of State subsequent to the proclamation of an emergency must also be laid before the legislative assembly. As a final example, in Kiribati, section 16(4) of the Constitution provides that:

A proclamation made under this section, if not sooner revoked, shall cease to have effect at the expiration of 3 days (or, in the case of a proclamation made otherwise than during a meeting of the Maneaba ni Maungatabu, 30 days) from the date of publication unless it has in the meantime been approved by a resolution of the Maneaba, and a proclamation that has been so approved shall remain in force so long as the resolution remains in force and no longer.

These constitutional provisions provide various procedures by which the initial declaration of the emergency, including the context and reasons for doing so, can be scrutinised, rejected or, in some cases, extended.

There are also additional protections offered under SIDS constitutions. As news reports from the UK will have made clear, breaching so-called lockdown rules can result in imprisonment. Arguably, freedom from detention is one of the first liberties to give way during a state of emergency. Some SIDS constitutions, however, include provisions directly addressing the circumstances of detention. For instance, under article 79(1) of Nauru’s constitution, there is to be an advisory board that is to hear representations from those detained during a state of emergency. Similarly, under article 6(b) of Kiribati’s Constitution, anyone detailed by virtue of a law or regulating enacting under a state of emergency shall be notified to the Beretitenti (Office of the President) stating that he has been detained, alongside the particulars of the provisions of law under which his detention is authorised.

As noted above, civil rights are often curtailed in a state of emergency. The constitution of the Federated States of Micronesia attempts to safeguard rights by providing under section 9 (b) that a civil right may be impaired only to the extent actually required for the preservation of peace, health, or safety. This provision appears to place limits on the extent to which certain rights can be undermined, subject only to those measures that are deemed as strictly necessary. Of course, such a provision on its own is worth little, particularly if individual governments reasons are not scrutinised. Thus, it is noteworthy that the same provision stipulates that ‘a declaration of emergency may not impair the power of the judiciary except that the declaration shall be free from judicial interference for 30 days after it is first issued.’ This provision is ambiguous but might be interpreted as saying that not only will the courts be permitted to function during a state of emergency, but they might also, owing to the initial part of this provision, have the scope to  scrutinise the extended period of emergency. What is not permitted, it would seem, is questioning the reasons for declaring a state of emergency ab initio. This appears to reflect the position in the UK where courts are being called upon to interpret the laws adopted to give effect to emergency legislation rather than the decision to adopt emergency legislation or the legislation itself.

In addition, some SIDS constitutions can expressly provide for the protection of human rights, a state of emergency notwithstanding. For instance, the Constitution of Papua New Guinea provides under article 233(3) that an emergency law (a) may not alter: (i) Section 35 (right to life); or (ii) Section 36 (freedom from inhuman treatment); or (iii) Section 45 (freedom of conscience, thought and religion); or (iv) Section 50 (right to vote and stand for public office); or (v) Section 55 (equality of citizens); or (vi) Section 56 (other rights and privileges of citizens).

Scope for Future Research

These are, of course, just a number of preliminary observations regarding ways in which SIDS constitutions appear to enable their respective governments to respond to crises such as that of covid-19 while, at least in theory, safeguarding rights. These observations are, at this point, just that but identifying them helps to frame a number of additional questions, which emerge as a result of the partial picture that a textual examination of these respective constitutions presents.

Firstly, and in a general sense, is there anything particularly special about how SIDS constitutions address emergency situations? Are the provisions and mechanisms in place unique to (A) SIDS, (B) SIDS in the pacific vis-à-vis those in Atlantic, Indian Ocean and South China Sea or Caribbean or (C) reflective of how most post-colonial constitutions address states of emergency?

Secondly, what of those SIDS whose power to declare a state of emergency derives not from a constitution but rather legislation (see, for example, the Emergency Powers Act 1978, Solomon Islands, the Public Emergency Act 1979, Niue  and the Emergency Powers Act 1958 in Tonga)? What explains the omission from constitutions and what differences emerge from a legislative rather than constitutional approach?

Thirdly, to what extent have the constitutions in question been successful in restricting overly excessive responses? Reports from Asia and Pacific Policy Forum suggest that in the Solomon Islands, security forces have used violent means to enforce the restrictions. Do constitutional protections make any difference at all? Finally, why do some SIDS such as FSM opt to declare a state of emergency while others, such as Palau, do not?

As countries around the world continue to adopt, end or prolong states of emergency, the phenomenon warrants further research. This post has sought to identify one such area, that of SIDS which hitherto have received relatively little attention. By drawing attention to certain constitutional aspects that have underpinned the response of SIDS to covid-19, it becomes clear that scope exists for better understanding the origins, reasons behind, differences between, impacts of and justifications for, the inclusion of emergency provisions in these constitutions.


The launch event for the 2018 edition of the North East Law Review is taking place on 29th May at 4pm in seminar room 5.

The Review publishes a selection of the best student essays from the North East – this year’s collection covers a range of fascinating and important issues, including Brexit, patient autonomy, and Charles 1st. Pick up a copy at the launch!

The event takes place at the conclusion of the Symposium in Law and Politics – the North East Law Review is hosting post-symposium drinks. Please feel free to attend both or either event.


Commercial Awareness – A Multi-Faceted Concept

It is, as ever, crucial for law students entering the workplace to be commercially aware. But the concept of commercial awareness is no longer monolithic. Craig Sharpe, Marketing Manager, has written the piece below on its developing nature. Craig, who has more than 30 years in the legal field, will be providing further insights into this and other legal practice issues at a careers service event taking place on 7th February (details to follow).

Commercial awareness – multi faceted and one size doesn’t fit all

Travelling around the country visiting and speaking at different Universities, it’s clear to me that students are increasingly aware of the changing nature of lawyering. The buzzword that often summarises the major changes in legal practice and the market is “commercial awareness”.

When I talk to students it’s also clear to me that what constitutes commercial awareness is not always clear. The term can mean different things to different people and, crucially, it often means something quite different depending on the type and size of law firm.

Commercial awareness is more important because there has been a shift in the legal market

The traditional role of lawyers as pure professionals has largely disappeared over the last 30 years. When I say pure professional I mean a relationship where lawyers were used to protect clients without needing necessarily to understand much about the client’s business, where legal costs weren’t generally negotiated much by clients, and where the legal market wasn’t that competitive.

Things have radically changed, primarily based on a huge increase in the number of lawyers without the same increase in the demand for legal services.

Clients now shop around for lawyers and their expectations have changed.

For the largest law firms, on a basic level, commercial awareness tends to mean an expectation that trainee applicants demonstrate an understanding of: (1) how business works and; (2) the importance of understanding different business sectors. This is often the basic definition of commercial awareness, described in this article, and one which most students provide when I ask them what commercial awareness means. However, it actually involves a lot more and if students can demonstrate they understand it on a deeper level, this can be a differentiator.

Justifying legal fees and proportionality

Even the magic circle firms are now having clients demand justification of charging rates and their proportionality. The latter is especially important – the historical model was that lawyers would advise clients that, as professionals, they had to do a job thoroughly and that might mean costs could seem disproportionate to the commercial risk/advantage to the client. Clients, generally, simply don’t buy that argument any more. So, being commercially aware means understanding that clients almost always looking at whether legal fees are proportionate from a business viewpoint.

Commercial awareness can mean risk sharing

Historically, lawyers wouldn’t even consider sharing some of the commercial risk with clients and the practice was also seen as unethical. Times have changed and for some types of law, clients now expect their lawyers to share some risk. This typically applies to high value litigation, where increasingly, litigation funding (more here on the growth of litigation funding) and some form of partial risk sharing, contingency or no win no fee is being utilised.

So, lawyers and law firms are having to exercise commercial judgment as well as legal judgment in deciding whether to take on a potentially lucrative but risky case. In doing so, business considerations can also apply. For example, with a high value, multinational client, the commercial awareness aspect may also include consideration of how the client may view the firm going forward if the firm rejects risk sharing out of hand. In other words, if that clients goes elsewhere for a litigation matter, might they not come back for other types of work such as huge corporate transactions?

Internal commercial awareness

The example given above demonstrates that commercial awareness often has an internal as well as an external aspect. In addition to understanding clients, markets and so on, lawyers are increasingly being forced to adopt a business as well as professional approach. Being part of a law firm means understanding the internal commercial considerations that go on within that firm. Law students may well ask “how can law firms expect me to know about their business when I apply, I don’t have access to that information?”.

Business challenges for law firms

That’s a completely fair point of course. However, law students can gain an understanding of the changing market and how that impacts firms of all sizes. Whether a student may apply to a huge law firm or a very small one, appearances of unabated success can be deceptive and firms of all sizes now face unprecedented competition. For a smaller law firm, internal commercial awareness may well mean understanding that for that size of firm, they would expect a trainee lawyer to get involved in tasks that are not traditional fee earning.

In a firm like Darlingtons, a typical small to medium firm where I work, we expect trainees to be open to getting involved in marketing initiatives. In a competitive market, every member of staff needs to have an open and adaptable approach which is team centric. This is an example of how we perceive commercial awareness.

It’s worth remembering that about 70% of lawyers or more do not work in the big firms, so students statistically who pursue a career as a solicitor are more likely to end up working in a smaller law firm.


Newcastle students – we’re recruiting student editors… apply now!

What is the NELR?

The NELR is a Newcastle University student-led and -run journal. It publishes annually a selection of high-quality legal research from Newcastle Law School and other law schools in the North East.

What will you do?

The key role of the editorial board is to prepare articles for publication. This involves standardising and improving the style, referencing and language of each piece to the quality required by a journal of professional appearance. The NELR also runs this blog, which is led by the board.

Why is this such a great opportunity?

• Helping to promote the high-quality research produced by Newcastle students.

• Engagement with high quality work will help improve your own coursework.

• Editing and preparing text for publication is a valuable skill – great for the CV.

• Developing and demonstrating teamworking skills.

• Opportunities to help develop the Review’s website and social media presence.

How do I apply?

You have to be a 2nd, 3rd or Postgrad law student at Newcastle University to qualify. Please send your CV and a brief covering letter, explaining why you wish to participate in running the NELR and what you can bring to it. Please also attach a recent essay that is all your own work. The deadline is Friday, October 6th. Applications must be sent to

If you want any further information, please contact either Tim Sayer, Editor in Chief, ( or Jenny Lio, Deputy Editor, (


It is no secret that the Conservative Party has always been critical of the Human Rights Act 1998 (HRA), which incorporated the European Convention on Human Rights (ECHR) into domestic law. Many of its prominent members have spoken negatively of it and, instead, advocate a British Bill of Rights. In the Party’s 2010 election manifesto, it proposed to “replace the Human Rights Act with a UK Bill of Rights”. Likewise, in its 2015 manifesto the Party made the same promise but added that this proposal “will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”. Although Michael Gove, the Secretary or Justice, announced before the House of Lords Constitution Committee that the awaited Bill of Rights consultation have been postponed causing a delay in the government’s plan to scrap the HRA again, the question of whether a Bill of Rights is right for the UK remains controversial. With public outcries for the HRA’s repeal demonstrated by the Policy Exchange/YouGov statistic of 75% of Britons thinking the HRA are a “charter for criminals”, there seems to be strong support for this proposal. However, is this figure a product of the media and many politicians’ widespread apathy towards the Strasbourg court’s controversial rulings, especially in foreign suspect cases, or does it show genuine need for Britain to build a home-grown Bill of Rights?

In a House of Commons debate, Dominic Raab, the Minister for Human Rights, shed light on some of the perceived issues of the HRA which a new Bill of Rights will seek to solve, which Mark Elliott identified, including:

  • Granting “greater authority for the Supreme Court” so less will be “subordinated” to Strasbourg;
  • Stopping rights from being “distorted by judicial legislation”;
  • Stopping rights from “being abused by serious and serial criminals”;
  • And ensuring “sensible application and proper respect” for the “democratic role” of Parliament.

In answering questions from other MPs, Raab’s responses are vague in analysis. However, it is apparent that the Party’s concerns remain unchanged and seemingly intertwined.

First, there is concern towards the supposed “abuse” of rights by claimants who are seen as undeserving, namely foreign suspects who attempt to prevent deportation using human-rights laws after their prison release. As seen in the reactions to the Strasbourg court’s decision against the deportation of the suspected terrorist Abu Qatada, there is a great will for there to be a Bill of Rights with many antagonising the HRA. However, the idea that a human-rights claimant is ‘underserving’ does not rest well with the conventional notion of human rights. The ECHR was written after the horrors of the Second World War when it was believed that some fundamental rights, such as the right to be protected against inhuman and degrading treatment, should be enshrined with no get-out clause or exceptions. Some rights are fundamental in ensuring fair treatment and protection for all to prevent discrimination against particular groups such as foreign criminals from arbitrary power and populist opinions. Therefore, some human rights should be above the whims of parliament to protect minority interests. Introducing a Bill of Rights imply that, potentially, rights of these individuals will be compromised as the HRA is viewed as firearm for ‘undeserving’ claimants. With the notion that a human-rights claimant can be ‘undeserving’ and thus showing a lack of equal and fair treatment, just because the idea of a Bill of Rights is politically right, it does not mean it is morally right.

Second, the Party is also concerned over a judicial “mission creep”; the court is said to have manipulated the interpretation of a rational set of human-rights laws to the ‘undeserving’ claimant’s advantage. This contention illustrates the tension between the courts and politicians and their institutional role regarding the separation of powers; the crux of the issue is the argument that unelected judges should not apply human-rights law to contentious matters of public interest, such as the balance between the threat of deportation of a suspected terrorist against the potential danger of their stay to the public. The compromise between the public’s interest of being protected and the foreign suspect’s interest in pursuing a family life in the UK is therefore a domestic issue requiring a political value judgement. The judiciary, especially a foreign one, cannot claim democratic mandate to make judgements on cases this heavily involving the public. However, which other institution can we rely on to make such decisions? If anything, contentious cases require neutrality to a larger extent to avoid tyranny of the majority and to reach a fair balance. Politicisation of the decision risks the scale to be tipped heavily in favour of the frantic public who are highly responsive to the media’s exaggerated portrayal.

Lastly, Raab revealed a concern previously expressed by former Justice Secretary Chris Grayling, who advocated for “our Supreme Court to be supreme again”, that there should be an expansion in the UK Supreme Court’s authority in the expense of the Strasbourg court. This suggests that the concern is not with human-rights decisions by judges, but by specifically European judges. However, the argument lacks strength as it is unclear how and if the outcome would be different since all judges are supposedly politically neutral. Additionally, refusal to implement the Strasbourg court’s judgement may impact the obedience of other Council of Europe members. Recently, a bill in Russia was supported allowing Moscow to ignore judgements of international rights courts, foreshadowing the country’s rejection of the ECHR.

So, is the Bill of Rights right? Politically, it is obvious that it will please many voters. However, one cannot help but be sceptical about why the Conservative Party endorse the proposal so badly and what human-rights law will look like if they were to shape it to their liking. This is without even considering the international impact and the obstacles of backbench MPs, the Lords and the devolved assemblies.

Carmen Huang (Law)