Editorial Welcome to the IALS Student Law Review Tuğçe Yalçin
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Editorial Welcome to the IALS Student Law Review Tuğçe Yalçin Welcome to the COVID-19 Special Issue of the Institute of Advanced Legal Studies' Student Law Review (ISLRev). The COVID-19 pandemic threw not only the world into a serious shock to all intents and purposes but caused an historic decline in economic outputs in many countries and raised numerous questions for states and the societal functioning in general. The severe and challenging situation also ushered in a rethink of our old habits and seeming obviousnesses such as meeting friends or working in shared environments. It reminds us about what is really essential in life, or simply: recalling our humanity and reality – our natural limits of necessity. In this COVID-19 Special Issue, we will be reflecting on how the COVID-19 pandemic has affected local legal systems, the introduction of legal regimes to confront the new realities, economies, governments and the society at large. We are pleased to introduce the following articles of this COVID-19 Special Issue of the ISLRev: Dr. Marijana Opashinova Shundovska discusses whether emergency measures in response to the COVID-19 pandemic are a threat to the democracy by analysing the case of North Macedonia. This new world order ‘Covidism’, both autocratic and liberal, proved to be more dangerous in the long run than the virus which took thousands of lives and infected millions of people worldwide. The ‘COVID-19 victimisation’ and ‘de-democratisation’ made representative houses revert to old emergency situations, conveying the lead to the executives to carry on the entire decision-making process, putting into question their definition as pillar institutions in the systems of representative democracy. Fighting for decades to maintain the representative democracy due to the monopolisation of legislation by the executives in the EU member states, and to the rising of autocratic processes in developing countries, national parliaments have felt sisyphied over again. Having in mind the ongoing fight with the virus, one might question how long it will take until national parliaments put the rock up on the hill, this time for good. Dr. Fotios Fitsilis and Athanasius Pliakogianni examine the Hellenic Parliament’s response to the COVID-19 pandemic. Legislatures face political crises constantly – they navigate through them using an institutional weaponry made out of constitutional and standing order provisions, often accompanied by informal regulations, so-called 'soft law'. Nevertheless, the COVID-19 pandemic took whole societies by surprise. Constitutions and standing orders do not contain dedicated provisions for such crises. In the absence of similar precedents, parliaments needed to improvise, often adopting expansive interpretation of existing provisions. To complicate things further, countries have used various approaches to combat the pandemic – a fact that also affected the behavior of parliaments. Dr. Afrim Krasniqi explores the critical situation in Albania due to the COVID-19 pandemic. Since the nineties, Albania has declared several national emergencies. The violent riots of 1991 and 1997 were prominent cases thereof. The state of emergency was invoked six more times since that time owing to natural disasters. The situation with the COVID-19 pandemic in 2020 marks a new, unique experience with fundamental differences from the past. In none of the previous states of emergency have public, private, parliamentary and judicial activity been effectively suspended, and state propaganda and police force used as creatively as in 2020. The outbreak of the COVID-19 pandemic in early 2020 found the country in a situation of political crisis, whilst stuttering in its efforts to recover from the natural disaster caused by the heavy earthquake of November 2019. Carmelina Sessa assesses the effects of the COVID-19 pandemic on the rule of law and pursues the question of the compatibility of fundamental rights with mass surveillance technologies in democratic systems by using Italy as an example – ie, the first state in Europe to launch containment measures of the spread of the virus and to protect public health. Through a comparative approach, she examines IALS Student Law Review | Volume 8, COVID Special Issue, [Winter 2021], pp. 1-2 | Page 1 This work is licensed under a Creative Commons Attribution – NonCommercial-NoDerivs 4.0 International License Tuğçe Yalçin Editorial the assumptions and the impact of the emergency legislation on the Italian democratic system. Despite undoubted short-term benefits, the concern is to safeguard both the protection of personal data and health, in the face of this ‘invisible enemy’, considering that the link between emergency regulation and prolonged compression of rights in technological innovation also requires special attention. Sossi Tatikyan examines the adoption, enforcement and parliamentary oversight of the emergency measures in response to the COVID-19 pandemic, and their impact on the democracy, human rights and good governance in Armenia. The Government of Armenia declared a State of Emergency (SoE) in March 2020 and extended it five times followed by a similar regime of quarantine in order to manage the spread of COVID-19 in Armenia. At the same time, the decisions accompanying the SoE constantly adapted to the evolving situation. Authorities introduced a number of tools and mechanisms as well as different levels of lockdowns and restrictions depending on the situation. Armenia is one of the few countries that continued parliamentary plenary and committee sessions through physical attendance without skipping any regular parliamentary sitting. Dr. Elohor Stephanie Onoge analyses the emergency measures implemented by the Nigerian government and human rights' infractions and considers the Post-Legislative Scrutiny to mitigate the government's legislative actions as a safeguard for human rights and democracy in Nigeria. The threat posed by passing emergency laws and policies in response to the COVID-19 epidemic, can be said to be a critical precursor of human rights abuses. In response to the COVID-19 pandemic, the Nigerian President issued the COVID-19 Regulation 2020 exercising his powers under the Federal Quarantine Act, CAP Q2 Laws of the Federation of Nigeria 2004. Based on this, the Nigerian Federal Government has undertaken stringent measures, including enforced restrictions, cessation of movement, and restrictions on social and economic activities in Nigeria, to curtail the pandemic. Nigeria has employed human control to stop the spread of the disease, including travel bans, quarantine orders, social distancing and lockdowns. The measures applied to curtail the spread of COVID-19 have had an undoubted impact on human rights. Emmanuel Saffa Abdulai presents a paper on how conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. He examines the origin of the concept of a state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. Furthermore, he analyses and reviews the constitutional history of the use of state of emergency in Europe, the United States and eventually in three West Africa countries such as Ghana, Nigeria and Sierra Leone. Finally, we are hugely thankful to our authors for their submissions. We would like to encourage any postgraduate student, practitioner and academic who would like to submit an article to get in touch with us. The details for submission can be found below: https://ials.sas.ac.uk/digital/ials-open-access-journals/ials-student-law-review/ials-student-law-review- editorial-board We look forward to hearing from prospective contributors. Until then, please enjoy the COVID-19 Special Issue of the ISLRev! Tuğçe Yalçin & the ISLRev Editorial Board. IALS Student Law Review | Volume 8, COVID Special Issue, [Winter 2021] | Page 2 Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency Emmanuel Saffa Abdulai Origin and use of State of Emergency The liberal democratic tradition from Western Europe of the nineteenth century can be credited with the birth of modern legal concepts of state of emergency born out of the artificial legal concept of norm and exception ‘which endorses a bifurcated approach to balancing the interests of societal goals and individual rights. The concept is regarded as a tag that legitimises governmental limitation of individual rights’.1 The concept has been given different names in different contexts including, but not limited to, ‘states of emergency,’ ‘states of exception’, ‘states of siege’, and ‘martial law’.2 At the same time, majour international human rights treaties provide for a derogation from the enshrined rights to allow state parties to ‘temporarily adjust their obligation under the treaties in exceptional circumstances’.3 To fully understand the origin and extent of the concept of a state of emergency under international human rights law, three leading questions ought to be answered which are at the centre of the derogation regimes. First, has a situation degenerated to a level of a ‘public emergency, threatens the life of the nation’? Second, whether the measures taken by the state are ‘strictly required by the exigencies of the situation’. Third, should the state derogating from international law notify the treaty depositary thereby alerting the other state parties to its public emergency derogation?4 There is almost a consensus amongst legal scholars that human rights enjoyment should not be curtailed during a state of emergency.5 However, in practice, the interpretations as to when a state can derogate from human rights regimes have been co-opted and distorted. The perverseness of the introduction and enforcement of state of emergency was discovered by an in-depth U.N. study, which concluded that about ninety-five states, representing half the world's countries, have been under a state of emergency.