–Alejandro Cortés-Arbeláez, Universidad El Bosque
In recent constitutional debates there has been an ongoing discussion about the use and abuse of states of emergency as a tool for implementing drastic measures in order to stop, or at least slow down, the pandemic of the new coronavirus SARS-COV2, which causes the COVID-19 disease. “As states of emergency are declared throughout the world in response to the spread of COVID-19, concerns arise as to the use –and potential abuse– of power in a time of crisis”, Joelle Grogan wrote recently. In Colombia, where I am writing from, many academic constitutionalists –such as Magdalena Correa, Rodrigo Uprimny, Julián Gaviria-Mira and Esteban Hoyos-Ceballos– have shed light on the importance of closely monitoring the decisions madeby the national government in the context of the current emergency. These cannot be disregarded as formalisms only relevant among lawyers, as this fundamental discussion is underpinned by substantial issues of fundamental rights, liberties and constitutional democracy. As Roberto Gargarella asserted recently in a newspaper article about the coronavirus and the state of emergency in Latin America, “the health emergency is, perhaps, the most perfect excuse to justify drastic rights restrictions,” but “we have reasons to think about this matter with more concern” and “analyze with extreme prudence any call to exchange health protections for basic rights.”
I agree with what has been argued by authors like the ones I quoted in the previous paragraph. I consider that, with the purpose of enriching these discussions, it is convenient to analyze in a comparative level how widespread the use of the state of emergency as a management instrument of the pandemic is. And, if the countries that have used it effectively show a tendency to take more freedom-restrictive measures than the ones that have not. In order to do that, I will present and discuss some data taken from the COVID-19 State of Emergency Data database by the Centre for Civil and Political Rights.
Before proceeding, however, some caveats are in order. Due to the descriptive nature of this analysis it would be reckless to draw causal conclusions on the relationship between the declaration of the state of emergency and the use of measures restricting freedom and which are aimed at slowing the pandemic, since this kind of data exploration does not allow one to control for other variables that might explain why authorities choose one set of policies over others. This is a descriptive preliminary analysis exercise that I hope contributes to enriching discussions and that can be improved with comments and perspectives from readers.
What does the data show?
The mentioned database includes information from 173 countries. The first thing that should be noted is that the use of the state of emergency is effectively a generalized instrument to take measures aimed at mitigating the pandemic, since almost 50% of the countries included in the database have declared a state of emergency in the actual situation, while only 22% haven’t done so (there is no information available for 30% of the countries). This is presented in Table 1.
Table 1. States of emergency declared because of the pandemic
|State of emergency declared?||Number of countries||Percentage of countries|
Source: Own elaboration based on the COVID-19 State of Emergency Data by the Centre for Civil and Political Rights
It is worth checking if the countries that have declared a state of emergency have a tendency to take measures restricting freedom to a greater extent than those in which constitutional normality has been maintained. A clarification is necessary: in the data that I present here the number of countries in the categories “State of emergency” and “No State of emergency” don’t add up to the 83 and 38 countries reported in Table 1, since there are information gaps in different variables regarding several countries.
A first measure worthy of revision are school closures, which are a public policy designed to “flatten the curve” of the pandemic. As Graph 1 shows, both in the countries that have resorted to a state of emergency and the ones that have not, school closures have been a widely adopted measure. This suggests that, despite how traumatic they might be, closing school has been a generally accepted administrative measure to slow down the contagion rate.
Graph 1. School closures: countries that have declared the state of emergency vs. countries that haven’t
Another interesting decision is the one related to the prohibition or restriction of gatherings. Out of 83 countries in which the state of emergency has been decreed, 49% have taken very “hard” measures on prohibitions of gatherings, like curfews or the prohibition of meetings between more than two people. Only 4% of those countries haven’t taken any measures towards prohibition of gatherings. In contrast, from 38 countries in which no state of emergency has been decreed, 21% have adopted curfews or prohibition of meetings between more than two people, and in 11% of the cases no policies against gatherings have been implemented. Against this backdrop, it seems like decision-making of this magnitude, which entails restricting freedom of movement and public gatherings, is in fact more easily adopted in countries in which the constitutional emergency has been used.
Graph 2. Prohibition/restriction of gatherings: countries that have declared the state of emergency vs. countries that haven’t
One extremely delicate measure has been the decision of closing places for religious practices, like churches and temples. From a public policy perspective this is a necessary measure and, at least in Colombia, most of the churches have accepted this measure and implemented virtual rituals instead. However, it is important to consider that for some religious groups this is a very “spiritually costly” measure because, from their perspective, virtual worship cannot replace face-to-face worship. That is the reason why, for example, a group of Catholics in Spain have asked the government to lift these types of measures and to allow the celebration of face-to-face masses, adopting biosecurity protocols.
How much do the measures of closure of worship places vary between the countries that have declared the state of emergency and the ones that have not? Considerably: in 42% of the countries under a state of emergency, places of worship have been completely closed, whereas 16% of them have maintained their normal operations. In contrast, places of worship remain open in 37% of the countries in which the state of emergency has not been declared, while in 24% they have been completely closed. This information is presented in a more detailed way in Graph 3.
Graph 3. Closure of worship places: countries that have declared the state of emergency vs. countries that haven’t
A perfectly reasonable measure from the epidemiological standpoint, but with tragic effects on the life and economy of people and families, is the closure of business establishments like restaurants and coffee shops. When comparing this measure between the countries that have declared the state of emergency and the ones that have not, it is possible to see that it presents a considerable variation, in the same way as with restriction of gatherings and the closure of places of worship. Indeed, in 55% of the countries under a state of emergency this measure has been implemented, while it has not been done in only 6 percent. Contrary to this, in countries without a state of emergency, the number of countries that have closed this type of establishments is almost the same number of countries that have not implemented this measure (Graph 4).
Graph 4. Closure of restaurants and coffee shops: countries that have declared the state of emergency vs. countries that haven’t
Some (very) preliminary conclusions
States of emergency are a common constitutional tool premised upon the assumption that the rule of law allows for exceptionality when ordinary measures from the government are insufficient. In this vein, it becomes necessary to grant exceptional powers to the Executive branch in such a way that it can quickly make decisions that normally would require legislative approval (and that are often restrictive of liberties and citizens’ rights), with the purpose of dealing with crisis situations.
The current situation justifies the declaration of states of emergency with the purpose of governments being able to make hard and sensible decisions that result in “flattening the curve” of the new coronavirus pandemic. The data that I presented here suggests that the adoption of measures to restrict certain liberties, such as the harsh restriction of gatherings, seems to be facilitated by declaration of a state of emergency. In countries in which constitutional normality has been maintained, these types of measures are much less common.
However, this data is not enough to fully support this claim. As I pointed out in the introduction, this kind of analysis does not allow us to conclude that there is a causal relationship between the declaration of the state of emergency and the use of freedom-restrictive measures. This apparent causality could be due to “omitted variable bias”: there may be variables not included in the analysis, such as the severity of the outbreak in each country, which explain both the declaration of the state of emergency and the use of freedom-restrictive measures. For now, it is possible to conclude that the declaration of the state of emergency is correlated with the restriction of liberties, but not that the former is the sole cause of the latter.
In order to reach stronger conclusions on this matter, it is necessary to include control variables in the quantitative analysis and to do case studies that allows us to understand in a detailed manner the type of measures that are being taken in each country, either under a state of emergency or in a situation of constitutional normality. While thinking about this important issues we should always be aware that, as Tom Ginsburg and Mila Versteeg contend, the extended use of states of emergency “might lead to a deterioration of civil liberties and constitutional democracy long-term”, since “many leaders might not easily give up their newfound powers”.
citation: Alejandro Cortés-Arbeláez,
Pandemic and States of Emergency: A Comparative Perspective, Int’l
J. Const. L. Blog, May 22, 2020, at: http://www.iconnectblog.com/2020/05/pandemic-and-states-of-emergency-a-comparative-perspective/
 Alejandro Cortés-Arbeláez is a Colombian public servant at the Office of the Attorney General in Colombia and lecturer in Constitutional Theory at the Faculty of Law and Political Science in Universidad El Bosque (Bogotá, Colombia). Email: firstname.lastname@example.org. Twitter account: @acortesarbe. A previous version of this article was published in Spanish in a blog belonging to the Journal of State Law of Universidad Externado de Colombia. I want to thank Carolina Muñoz for translating this post and Anamaría Muñoz for her revision and corrections.
 According to Tom Ginsburg and Mila Versteeg: “Over 90 percent of constitutions in force today include emergency clauses that allow the government to step outside of the ordinary constitutional framework and to take actions that would not otherwise be permitted. For the duration of the emergency, the government can rule by decree with few checks on its power. It can suspend rights, though not without limitations”.