Will governments around the world use the pandemic to grab more power and override individual rights? Many scholars, pundits and journalists have been asking that question. Public opinion polls suggest that most Americans, and many others around the globe, currently accept the public health orders that restrict their movements and businesses. However, such acceptance is premised on the belief that such restrictions will end at some point. As policymakers begin to discuss reopening plans and some countries begin to declare victory over covid-19, will they restore the rights they’ve limited?
That depends in part on whether the emergency orders include a sunset provision — and whether nations have active and independent civil societies that are ready to hold governments to account.
Temporary measures often become permanent
Countries ranging from Albania to Sweden have issued emergency orders on freedoms of movement, association, assembly, religion, and privacy, among others. Citizens generally understand the need to stop the spread of this highly contagious and deadly pandemic, except perhaps for a vocal few. But emergency orders limiting rights and giving governments more power have a tendency to stick around longer than originally expected.
Consider, for instance, these three measures. In the early 1920s, the United Kingdom put emergency orders in place that imposed a curfew, banned gatherings and placed restrictions on movements in Northern Ireland, in an attempt to stop secessionist uprisings. In 1917, the United States adopted an Espionage Act to criminalize antiwar speech during World War I. And in 1939, the United Kingdom adopted another “temporary” emergency law to respond to the Irish Republican Army. All three remain on the books today.
States of emergencies also tend to remain long past the justification for them has passed. Algeria was under a state of emergency for 19 years, from 1992 to 2011. In Egypt, a state of emergency lasted from 1981 until 2012. Syria has been under emergency rule since 1962. And in 1950, U.S. President Harry Truman declared a state of emergency to deal with Korean hostilities, which was later used to justify sending the military into Vietnam and wasn’t repealed until 1976.
Some European governments acted quickly to fight the pandemic — but not the ones you’d expect.
Governments tend to expand rather than contract
In the 1980s, economist Robert Higgs developed the “ratchet effect theory” to explain crises like the one we are currently experiencing. This theory holds that during crises, governments expand the size and scope of their powers, but when the crisis ends, these expanded powers never fully return to precrisis levels. Having grown accustomed to its newfound authorities, the government is reluctant to relinquish these powers, which become the new status quo. Like a mechanical ratchet that can only go in one direction, the government rarely gets smaller, only larger.
Both constitutional democracies and authoritarian-leaning countries have shown their willingness to impose emergency orders and keep them in place once the crisis ends, succumbing to the ratchet effect. Nearly all the world’s democratic governments have issued emergency orders of some kind or another to stop the spread of covid-19, the disease caused by the coronavirus. These emergency orders shift what some critics are calling “eye-watering” new levels of authority to the government to control our lives, borders and movements.
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Two factors can prevent governments from holding on to emergency powers
Research suggests two factors that counteract the ratchet effect. The first comes from independent watchdogs, individuals and organizations that document, publicize and hold governments to account for their actions. The second involve sunset provisions, or specific provisions contained within the emergency orders themselves that bring them to an end.
Civil society organizations and human rights groups have been closely monitoring the scope and spread of pandemic-related legal measures. The International Center for Not-for-Profit Law’s covid-19 Civic Freedom Tracker, the Institute for Democracy and Electoral Assistance’s covid-19 Election Monitor, and the International Press Institute’s tracker on Media Freedom Violations, are just a few of many examples.
Sunset provisions require governments to reevaluate an emergency order by a specified date. These help keep emergency orders temporary and, while in effect, narrowly tailored to the situation.
I reviewed each of the emergency orders issued by nearly 60 democratic governments, as defined by Freedom House and the Polity Project. Nearly all contain specific sunset provisions — except in Costa Rica, Hungary, Poland, Slovenia and the United States. In the remaining democracies, which amount to over 90 percent of the countries surveyed, the sunset provisions range from New Zealand’s seven days to the United Kingdom’s two years. Most range between 15 days and three months.
Of course, emergency powers can be extended, and virtually all these countries have done so. New Zealand, for example, has extended its emergency order at least seven times. Spain has extended its order every 15 days since first issued on March 14.
At some point these renewals must end. The watchdogs help hold governments to those self-imposed deadlines.
Chrystie Swiney is a legal scholar at the Sunwater Institute and PhD candidate in political science at Georgetown University, whose forthcoming book “The Cambridge Handbook on Innovations in Commons Research,” co-edited with Georgetown law professor Sheila Foster, will be published by Cambridge University Press in 2021.