Shane Kilcommins: 'Duty on the State' in times of emergencies

There are extraordinary/emergency provisions which, to date, have mostly been seen in relation to the threat of armed force/terrorism.

Shane Kilcommins: 'Duty on the State' in times of emergencies

There are extraordinary/emergency provisions which, to date, have mostly been seen in relation to the threat of armed force/terrorism.

They have a long history dating back to Roman times, permitting rulers to ignore the strictures of formalised legal orders in times of emergencies.

In more recent times the 'Constitutional State' has largely taken over from the 'Security State', limiting the executive’s capacity to mould the law to its will. Individual rights, in particular, have expanded in terms of their reach, and cannot easily be trumped for collective policy reasons such as security or public protection.

Rights act as a bulwark against unrestrained and arbitrary state power.

In times of real crisis, however, realpolitik demands that authorities have recourse to extraordinary measures, to serve the State, rather than limiting it.

In order to counteract extraordinary conditions such as invasion, insurrection, plague, or famine, states often in the past introduced emergency provisions that operated outside the parameters of normal legal relations. Once the specified crisis was averted, the status quo ante was restored.

Most emergencies provisions provided for in Ireland in the relatively recent past have related to armed conflict and included measures such as restrictions on movement and assembly, detention without trial, the suspension of jury trials, the designation of ‘states of disturbance’ in counties, the introduction of curfews, and trial by court martial.

On independence, such measures, where they existed were justified (by Kevin O’Higgins, a government minister) in the following terms: ‘whilst the existence of the nation is at stake there can be but one code…Salus Populi Suprema Lex esto’ (the good of the people should be the supreme law)'.

The ‘extraordinary measures’ which are being introduced under this proposed Health Act include restrictions on travel, curfews, the prohibition or restrictions on the holding of events, the requirement for safeguards to be put in place by owners/occupiers, the imposition of affected area orders which designate certain areas as areas of infection, enforcement provisions, and involuntary detention by medical officers of persons suspected of having the virus until such time as the medical officer certifies that the person’s detention is no longer required.

Though they restrict individual rights as they relate to property, travel, liberty, and freedom of association, they are a functional necessity, and can be justified on the basis of the public interest in the health of the population and, in particular, the positive duty of the State to defend and vindicate the fundamental rights of citizens to life and bodily integrity.

What is clear from this legislation is that the systemic risks we face today are different from the terrorist/armed insurrection threats that dominated emergency provisions since the 1920s.

The current threat – which is global in reach – is an infectious disease rather than involving any military challenge; nevertheless it poses as much if not more of a threat with the potential to affect more people.

It demonstrates the multiplicity of ways in which our security and protection can be compromised in contemporary society.

- Shane Kilcommins is Professor of Law at the University of Limerick

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