There are fifty-eight \u2019Small Island Developing States\u2019\n(SIDS) listed by the United Nations, thirty-eight of which are members of the\nUN. In these, as elsewhere across the\nworld, governments had to respond rapidly to the unseen enemy of Covid-19. This\npost focusses on those SIDS located in the Pacific, many of which were former\ncolonies of Britain, and the legal powers which were exercised to protect their\ncitizens. Specifically, as countries across the globe invoke constitutional\nprovisions allowing for and facilitating a state of emergency, this post\nconsiders the legal infrastructures that allow for exceptional measures in\nresponse to extraordinary times. <\/p>\n\n\n\n
States of Emergency and Covid-19<\/strong><\/p>\n\n\n\n In the Pacific region there are thirteen SIDS: Fiji,\nKiribati, Marshall Islands, Federated States of Micronesia, Nauru, Palau, Papua\nNew Guinea, Samoa, Solomon Islands, Timor Leste, Tonga, Tuvalu, and Vanuatu. In\nterms of economic wealth, population and land size there is great diversity but\none thing they all have in common is a written constitution. In SIDS, many\nconstitutions were enacted following, or just prior to the end of, periods of\nColonial rule. For instance, after being governed by a series of countries,\nPapua New Guinea established its sovereignty in 1975 adopting its constitution\nin the same year. Vanuatu\u2019s Constitution was created in 1980, following\nindependence movements against Franco-British Condominium rule. Timor Leste became the first independent\nstate of the 21st<\/sup> century approving its constitution on March 22,\n2002. Many of these early constitutions have been subsequently amended or\nreplaced.<\/p>\n\n\n\n Constitutions in newly independent states can serve various\npurposes. Most basically and like all constitutions, they can define the nature\nof government (for, example parliamentary democracy, constitutional monarchy),\nthe institutions of the state (for, example, the police, courts, legislature),\nthe separation of powers between different organs (for example, between parliament\nand the executive, the government and the judiciary) and set out the\nrelationship between the state and citizens. <\/p>\n\n\n\n In contexts emerging from periods of repression or colonial\nrule, constitutions can also serve another, additional purpose; namely,\nensuring that similar power grabs do not occur internally. Upon independence, it\nis inevitable and, if done in appropriate ways, positive, that different\nfactions emerge to challenge for political leadership. Electoral contests are,\narguably, the hallmark of a democracy. Nevertheless, there is always a risk for\nthose that fall short of gaining a seat at the table of politics (and the\nnumerous economic benefits that attach to the status of power) that similar\nforms of repression and marginalisation suffered under colonial rule will be\nreplaced but replicated by new elites. With this in mind, constitutions enacted\nafter colonial rule may incorporate potential safeguards that seek to limit\npower imbalances in favour of certain groups over others. <\/p>\n\n\n\n This is important in the context of the current covid-19,\nparticularly when considering how these constitutions balance the need for\nexceptional measures to respond to crises, while also safeguarding against the\nconflagration of these powers for personal and party gain. As the virus swept\nthe globe, a number of SIDS, like many other countries, declared a state of emergency.\nThese included Federated\nStates of Micronesia<\/a> (14 March 2020), Nauru (17 March 2020), Tonga<\/a>\n(20 March 2020), Samoa<\/a>\n(20 March 2020, Solomon\nIslands<\/a> (25 March 2020), Kiribati<\/a>\n(26 March 2020), and Fiji<\/a>\n(13 April 2020), as examples (others\nopted not to, for example, Palau see, Statement\nfrom the President<\/a> (17 March 2020).<\/p>\n\n\n\n Declaring a state of emergency (or health emergency as they\nare often termed in SIDS) allows the authorities, in times of urgent necessity,\nto take exceptional actions which often bypass rights and legislative\nprocesses, in order to safeguard national security, maintain law and order,\nprotect citizens\u2019 lives and property, keep essential public services working,\nconcentrate relief resources and direct them to the areas of greatest need, and\nin general to restore normality (see N\u00ed Aol\u00e1in and Gross, 2006). For instance,\npursuant to Art 78(1) of Nauru\u2019s constitution:<\/p>\n\n\n\n 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.<\/p><\/blockquote>\n\n\n\n In the context of covid-19, the transferring of these powers\nis justified in light of a health crisis. Nevertheless, such provisions also\ncarry significant risks. For instance, in granting powers to the state that\ncircumvent \u2018normal\u2019 legislation, this transfer of power can have adverse\neffects on the enjoyment of rights to life, a fair trial, liberty and security,\nand freedom of assembly and association, as examples (see Amnesty\nInternational<\/a>; Joint\nCommittee on Human Rights<\/a>; Greene<\/a>).\nIn Fiji, for example, there has been widespread\ncriticism<\/a> of efforts to stifle the press, while in Samoa there have been concerns\nraised<\/a> about the passage of controversial bills at a time when Parliament\nis not sitting. Moreover, in any given state of emergency, there is the\nrisk that these exceptional powers and permitted restrictions on rights can\nbecome normalised. <\/p>\n\n\n\n Because many of the risks associated with declaring a state\nof emergency are similar to the risks facing newly independent states, it might\nbe expected that constitutions of formerly colonialised SIDSs contain important\napproaches to the construction of their constitutions (although it should be\nnoted that some SIDS constitutions, such as Tonga, do not include provisions on\na state of emergency, relying instead on legislation). <\/p>\n\n\n\n States of Emergency in SIDS Constitutions<\/strong><\/p>\n\n\n\n Many SIDS constitutions permit the government in question to\ndeclare a state of emergency. For instance, under art 77(1) of the Nauru\nConstitution, the President, if satisfied that a grave emergency exists whereby\nthe security or economy of Nauru is threatened may, by proclamation, declare\nthat a state of emergency exists. In Samoa, Article 105 provides for the making\nof State of Emergency Orders by the Head of State (O le Ao o le Mal\u00f6) in\nconsultation with the Cabinet, if he is satisfied that \u2018a grave emergency\nexists whereby the security or economic life of Samoa or of any part therefore\nis threatened\u2019. Proclamations made under this power have been used and amended\nas the pandemic has unfolded.<\/p>\n\n\n\n As identified, granting powers such as these risk the\nnormalisation of otherwise exceptional measures. Nevertheless, SIDS\nconstitutions can be seen to include a number of safeguards. For instance, in\nNauru, if Parliament is sitting, a state of emergency lapses after seven days.\nIf it is not sitting then the period is 21 days, unless approved in a\nresolution by a Parliamentary majority. If the reasons presented are\nunagreeable, parliament can thus refuse to extend the state of emergency in\nquestion. Similarly, in Palau, if the President exercises his powers to declare\na state of emergency, he must call a meeting of the legislature (Olbiil Era\nKelulau) to affirm or disapprove the state of emergency, and he may not\nexercise emergency powers for more than ten days without \u2018the express and\ncontinuing consent\u2019 of this body. In Samoa, a Proclamation of Emergency only\nremains in force for 30 days if not revoked earlier, although subsequent\nproclamations may be made. Any such proclamation has to be laid before the\nLegislative Assembly either at the time or as soon as it can be called. Any\norders made by the Head of State subsequent to the proclamation of an emergency\nmust also be laid before the legislative assembly. As a final example, in Kiribati,\nsection 16(4) of the Constitution provides that:<\/p>\n\n\n\n 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.<\/p><\/blockquote>\n\n\n\n These constitutional provisions provide various procedures\nby which the initial declaration of the emergency, including the context and\nreasons for doing so, can be scrutinised, rejected or, in some cases, extended.<\/p>\n\n\n\n There are also additional protections offered under SIDS\nconstitutions. As news reports from the UK will have made clear, breaching\nso-called lockdown rules can result in imprisonment. Arguably, freedom from\ndetention is one of the first liberties to give way during a state of\nemergency. Some SIDS constitutions, however, include provisions directly\naddressing the circumstances of detention. For instance, under article 79(1) of\nNauru\u2019s constitution, there is to be an advisory board that is to hear\nrepresentations from those detained during a state of emergency. Similarly,\nunder article 6(b) of Kiribati\u2019s Constitution, anyone detailed by virtue of a\nlaw or regulating enacting under a state of emergency shall be notified to the\nBeretitenti (Office of the President) stating that he has been detained,\nalongside the particulars of the provisions of law under which his detention is\nauthorised. <\/p>\n\n\n\n As noted above, civil rights are often curtailed in a state\nof emergency. The constitution of the Federated States of Micronesia attempts\nto safeguard rights by providing under section 9 (b) that a civil right may be\nimpaired only to the extent actually required for the preservation of peace,\nhealth, or safety. This provision appears to place limits on the extent to\nwhich certain rights can be undermined, subject only to those measures that are\ndeemed as strictly necessary. Of course, such a provision on its own is worth\nlittle, particularly if individual governments reasons are not scrutinised.\nThus, it is noteworthy that the same provision stipulates that \u2018a declaration\nof emergency may not impair the power of the judiciary except that the\ndeclaration shall be free from judicial interference for 30 days after it is\nfirst issued.\u2019 This provision is ambiguous but might be interpreted as saying\nthat not only will the courts be permitted to function during a state of\nemergency, but they might also, owing to the initial part of this provision,\nhave the scope to scrutinise the\nextended period of emergency. What is not permitted, it would seem, is\nquestioning the reasons for declaring a state of emergency ab initio. This\nappears to reflect the position in the UK where courts are being called upon to\ninterpret the laws adopted to give effect to emergency legislation rather than\nthe decision to adopt emergency legislation or the legislation itself. <\/p>\n\n\n\n In addition, some SIDS constitutions can expressly provide\nfor the protection of human rights, a state of emergency notwithstanding. For\ninstance, the Constitution of Papua New Guinea provides under article 233(3)\nthat an emergency law (a) may not alter: (i) Section 35 (right to life); or\n(ii) Section 36 (freedom from inhuman treatment); or (iii) Section 45 (freedom\nof conscience, thought and religion); or (iv) Section 50 (right to vote and\nstand for public office); or (v) Section 55 (equality of citizens); or (vi)\nSection 56 (other rights and privileges of citizens).<\/p>\n\n\n\n Scope for Future Research <\/strong><\/p>\n\n\n\n These are, of course, just a number of preliminary\nobservations regarding ways in which SIDS constitutions appear to enable their\nrespective governments to respond to crises such as that of covid-19 while, at\nleast in theory, safeguarding rights. These observations are, at this point, just\nthat but identifying them helps to frame a number of additional questions,\nwhich emerge as a result of the partial picture that a textual examination of\nthese respective constitutions presents. <\/p>\n\n\n\n Firstly, and in a general sense, is there anything\nparticularly special about how SIDS constitutions address emergency situations?\nAre the provisions and mechanisms in place unique to (A) SIDS, (B) SIDS in the\npacific vis-\u00e0-vis those in Atlantic, Indian Ocean and South China Sea or Caribbean\nor (C) reflective of how most post-colonial constitutions address states of\nemergency? <\/p>\n\n\n\n Secondly, what of those SIDS whose power to declare a state\nof emergency derives not from a constitution but rather legislation (see, for\nexample, the Emergency Powers Act 1978, Solomon Islands, the Public Emergency\nAct 1979, Niue and the Emergency Powers\nAct 1958 in Tonga)? What explains the omission from constitutions and what\ndifferences emerge from a legislative rather than constitutional approach? <\/p>\n\n\n\n