Governance in emergencies: A test of the sustainability of the rule of law

Abstract

States of emergency are a test of the sustainability of the rule of law. Normally, the behaviours of public actors are governed by the overarching principle that “public servants may act only under express legal authorisation”. However, states of emergency around the world show that public actors tend to create exceptions for themselves to act, which, in many cases, went beyond the scope of what was permitted and could be readily extended even when the emergency was no longer present. Responses to emergencies show that state actors have adopted interventions that go far beyond the scope of the usual framework, such as restrictions on freedom of movement, freedom of assembly, freedom of business, or interference with personal liberties. However, the ability to withdraw these interventions after a state of emergency is a test of the sustainability of the rule of law. The discussions in this study aim to find out the limits of the rule of law that cannot be exceeded even during a state of emergency and the procedures necessary to provide reasonable powers for public actors to use in emergencies.