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 International; Joint Committee on Human Rights; Greene). 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.