COVID-19: Emergency Powers and Constitutional Limits


By Amin Kef Sesay

Our country is in a national State of Emergency over COVID-19. We noticed that even though the President, in announcing the emergency in March categorically stated that constitutional rights are not revoked or restricted, we see some of these been eroded by some State institutions – For example, the fiat being prepared by the Attorney General to make COVID-19 spending non-accountable.

The people maintain that an emergency does not allow either the Government or State institutions to grant themselves any new powers. The Government is still one of enumerated powers, and the State cannot act arbitrarily.

The Constitution provides that no person may be deprived of life, liberty, or property, without due process of law. Procedural due process requires certain procedures before a law is applied, such as notice or the opportunity to be heard. Substantive due process looks at the validity of the law being applied.

Whether a specific Governmental action is constitutional will largely depend on particular circumstances. Most importantly, States generally retain the power to make laws for the purpose of protecting the health, safety and welfare of its people.

That said, the existence of the emergency may justify limiting the scope of certain rights, at least on a temporary basis.

Thus, we can understand when pursuant to the emergency declaration by the President schools have been closed; public gatherings of a certain size are banned, etc. However, when people are detained for unreasonably long periods without trial or denied bail, it raises questions.

As the American Supreme Court has said, “an emergency may not call into life a power which has never lived,” but “emergency may afford a reason for the exertion of a living power already enjoyed.”

In other words, by declaring a national or State emergency, the Government cannot grant itself any new power. Rather, the emergency declaration allows Governments to unlock powers that normally lie dormant.


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