Lockdowns and martial law: constitutional or not?

As governments have had to react urgently over the past weeks and months to the Covid-19 outbreak, their measures – the type of which was hardly ever used outside wartime – have so far been supported by the general public due to the broad consensus about prioritizing public health. Since the beginning of the global lockdown, however, commentators have been discussing the potential infringement of personal freedoms, enshrined in national constitutions. Legal specialists in Italy noted, in March already, that freedoms such as personal liberty and freedom of movement can only be restricted by law and that the decrees adopted by the Italian government as an emergency measure, did not have the same legal force as laws. Along similar lines, specialists in Sweden have observed that the granting of emergency powers to the Swedish authorities, as part of the recently promulgated Pandemic Law, has taken place in the absence of any real constitutional debate.

The Danish parliament has gone particularly far in its response to Covid-19 by unanimously passing an emergency coronavirus law which gives health authorities extensive powers with the backing of the police, including mandatory testing and vaccination, if required. It is unclear whether other countries would be able to adopt similar measures. Experts in the US have argued that while there is no doubt that those who have been exposed to the virus could be forcibly quarantined, even if they show no symptoms, nationwide and en masse lockdowns would get us “into territory that implicates the most fundamental constitutional rights and the right to freedom of movement”.

With the economic and social effects of the lockdown becoming more visible, it is reassuring that questions regarding the constitutionality of the lockdown measures start to be raised in more and more countries. A debate on policies which, in many countries, are moving into the direction of martial law is high time. Some voices have started to suggest that courts should be excluded from considering the lawfulness of any lockdown order, thus effectively excluding judicial review of governments’ substantive authority to impose free movement restrictions, and whether the exercise of these powers is reasonable in relation to the purpose and follows the adequate procedures.

Organisations such as Amnesty and Human Rights Watch have drawn attention to categories that are impacted particularly harshly by the lockdown, such as the 14 million people in Britain alone who live in poverty and are dependent on food banks and charities. The general public’s fear of the pandemic, however, for now seems to prevail over any concerns about the long-term risk to civil liberty and human rights. According to a survey published in The Atlantic, there is broad bipartisan endorsement in the US of the liberty-restricting policies implemented so far. Importantly, the authors point at historic precedents such as the Japanese American internment camps during WWII or the use of torture after 9/11 as examples which show that constitutional rights are easily transgressed when the majority is so inclined. Citizens would do well to heed to the authors’ warning that after the threat has subsided, any constitutional violations must be recognized for what they were, lest they become the new normal.

Edited by: Olivier Vonk