Given the current intensity of the COVID-19 global pandemic, many countries are declaring states of emergency. In some instances, these declarations may intend to contain the virus, but they can also represent a calculated attempt to erode democracy. To guard against opportunistic authoritarian governments leveraging COVID-19 to expand executive power at the expense of rule of law, legislative oversight, and human rights, NDI is monitoring four key indicators:

• separation of powers and executive authority in emergencies

• federalism and preservation of subnational authority

• shifts in civil liberties

• role of military and armed groups

NDI is working with political and civil society actors around the world to assess and mitigate this risk through monitoring vulnerabilities and developing resources with these actors to respond to unique and often deeply complex circumstances.

These efforts to monitor the vital signs of democracy draw on the International Covenant on Civil and Political Rights (ICCPR), which offers legal parameters and guidance on states of emergency. These include: emergencies must be time bound; any measures must be proportional to the nature of the emergency; an emergency is defined as an event or set of events that threatens the life of the nation; and certain rights must be protected, such as freedom of religion and a prohibition on torture. When these conditions are not met, it can lead to alarming consequences for democratic governance and human rights. For each of these four key internationally recognized principles, there are specific warning signs that civil society and activists should be monitoring. 

Separation of powers

Separation of powers is fundamental to democracy because it balances power and authority, making it a significant target for authoritarian executives. Some authoritarian tactics intended to shift this balance in their favor include:  

• Suspension of constitution or shifting constitutional authority to executive justified by a doctrine of necessity (e.g. Pakistan)

• Dismissal of Supreme Court or other judges (e.g. Cameroon)

• Dissolution of legislative function with no immediate election and rule by decree (e.g. Hungary)

• Suspension of national elections (e.g. Bolivia)

• Rejection of expert guidance for political and economic expediency (e.g. Brazil)

Each of these authoritarian tactics expands the reach of unchecked executive power. These troubling steps can lead to rule by executive decree without oversight. Strongmen can then use this power and misinformation to silence political opposition, and weaken institutions that protect citizens -- including legal institutions. 

Federalism

Vertical power allocations, or federalism, refers to a system of government where a central government shares authority with state and provincial governments. These powers must also be negotiated regularly by independent courts. When opportunistic strongmen use emergencies to consolidate power, they seek to gain footholds at more local levels, bypassing elected and community representatives. The following are vulnerabilities of federalism that can be exploited by authoritarian executives:  

• Federal and state authority are not sufficiently constitutionally delineated or the executive can take over state governance (e.g. Myanmar and India)

• Weak rule of law and legislative institutions prevent negotiation of power sharing or limits on executive authority (e.g. Uzbekistan). 

• Weak administrative and bureaucratic structures and/or a lack of independent revenue generation at the state or provincial levels that cannot guarantee service delivery during an emergency (e.g. Nigeria and Afghanistan)

• Existence of limited cooperative mechanisms or tensions and conflict between states and provinces (e.g. Iraq) 

The critical impacts here include an executive with full and protracted authority of state and even smaller administrative structures. Conflict can also be exacerbated because the provision and distribution of humanitarian and economic assistance can often depend on political favor.

Shifts in civil liberties

Another area of grave concern is civil liberties, which is a complex calculus. For example, COVID 19 containment requires restrictions on movement. However, proportionality and its oversight can balance the necessary with the democratic through transparent and scientific assessment. The most concerning restrictions and violations include:

• Weak rule of law safeguards, legislative disruption, and corruption (e.g. across Latin America)

• Protection of certain rights is limited, including search and seizure, protection of correspondence, indefinite detention, and surveillance (e.g. Honduras and Bulgaria)

• Fundamental rights and freedoms (e.g. Zimbabwe - limits on expression and press freedom)

• Limits on civil society space to operate through extreme scrutiny and detention of civil society activists (E.g. Tanzania and Kyrgyz Republic)

• Limited access to information (e.g. Egypt)

• Women and marginalized groups are subject to identity-based violence (e.g. rise of domestic violence in pandemics)  

These liberties and democratic processes, without the protection of data-driven proportionality and oversight, can easily lead to erosion of human rights in the long term.  

Role of military and armed groups

Finally, the role of military and armed groups is crucial in a time of crisis. Though enforcement and the military are usually subject to executive oversight, there are instances where they are given constitutional authority during emergencies to coordinate assistance and ensure order in chaos. However, when rule of law is weakened by chaos, civilian control over the military can slip. Warning signs include:

• Enforcement of lockdown by military with or without executive oversight (e.g. Malaysia and Myanmar)

• Peace negotiations and granting amnesty to armed groups to reduce immediate violence  (e.g. Afghanistan)

• Reduced jurisdiction, legitimacy, and capacity of democratic institutions during and after the emergency (e.g. Fiji and Ukraine)

The increased role of military and police during an emergency, when unchecked, can lead to an entrenched police state, with very limited accountability to human rights. It can also weaken governments in negotiating peace deals with insurgents because they are pressured to make unfavorable deals to cope with violence. 

What NDI Is Doing

Working with partners around the world, NDI is ramping up efforts to stop authoritarian efforts to discredit and debase democracy. Now is the time to invest not only in institutional and civil society strengthening, but also on specific programming focused on emergency powers, authority and oversight. We are creating new programs to train civil society groups to monitor and respond to executive overreach that could narrow civic space and undermine democratic institutions. We are working with legislatures to ensure that parliamentary authority and rules can sustain their constitutional functions. Finally, we are working with local governments on becoming resilient to illiberal forces and protect their communities. NDI emphasizes anticipatory and responsive democracy programming that prevents the entrenchment of authoritarianism in the fog of uncertainty and chaos in mature and developing democracies.

 

Author: Jena Karim is the Asia Advisor for Afghanistan, Pakistan, and Bangladesh at the National Democratic Institute.