When a crisis strikes, how do we prevent exceptional government powers from becoming permanent instruments of control?

 

Serious crises may require governments to act faster and more decisively than ordinary procedures allow. Pandemics, military threats, cyberattacks, terrorism, climate-related disasters and failures of essential infrastructure can demand rapid coordination and temporary restrictions. Yet these same circumstances increase the danger of concentrated executive power, weakened democratic oversight and prolonged limitations of fundamental rights. An effective emergency framework must therefore make exceptional action possible while ensuring that it remains necessary, temporary, proportionate and correctable.

An emergency framework should apply when an exceptional threat requires temporary powers, accelerated procedures, or rights restrictions that exceed the ordinary capacity of government. Urgency alone is insufficient: ordinary law often permits rapid action. The framework becomes necessary when powers are concentrated, normal safeguards are displaced, or several measures together create an exceptional constitutional burden⁶⁹¹.

Dutch emergency authority is distributed across Article 103 of the Constitution, the Coordination Act on Exceptional Circumstances, public-health and security legislation, and sector-specific regimes. These routes have different legal consequences. Formal activation of constitutional emergency provisions, use of sector-specific crisis powers, accelerated ordinary legislation, and emergency orders by decentralized authorities should not be treated as one category. For each measure, the legal basis, competent authority, available rights limitations, parliamentary role, judicial remedy, territorial scope, and termination rule must be identified. Functional severity rather than the label attached to the regime should determine the intensity of scrutiny. Functional differentiation can be justified, but safeguards vary across activation, information, parliamentary control, judicial review, and termination. Reform should therefore begin with an inventory of powers and cumulative effects, not with an assumption that every emergency competence must be placed in one statute.

Modern crises make this fragmentation increasingly problematic. They are often gradual, technically complex and long-lasting rather than clearly defined events with an obvious beginning and end. Cyber threats, pandemics and ecological disruption can persist for years, making it difficult to distinguish a temporary emergency from a structural policy challenge. The crucial principle is that emergency powers should be used only when ordinary authority is genuinely inadequate⁶⁹². Once a threat becomes enduring, government must return to normal legislation and full democratic decision-making.

The coronavirus crisis demonstrated how extensive restrictions can be introduced through several different legal channels without formally activating the constitutional emergency regime. It also showed why the justification for emergency action must change over time. During the first days of an unknown crisis, uncertainty and urgency may justify broad discretion. After weeks or months, however, authorities have more information, more time to examine alternatives and greater opportunity to involve Parliament. Measures that were defensible as immediate precautions cannot automatically remain justified throughout a prolonged crisis.

The burden of justification should increase with time. Immediate measures may rely on provisional evidence and short review intervals; renewal should require updated facts, comparison with less restrictive alternatives, distributional analysis, and an explanation of why ordinary legislation remains inadequate⁶⁹³. After a defined period, continuation should require primary legislation or an enhanced parliamentary majority rather than repeated executive renewal.

A reformed framework would therefore require emergency measures to expire automatically unless they are actively renewed⁶⁹⁴. Continued restrictions would need increasingly strong justification as time passes, while long-term extensions would require broader democratic support. This would prevent temporary powers, surveillance systems, databases and centralized procedures from quietly becoming ordinary instruments of government. Structural problems would have to be addressed through regular legislation rather than a permanently renewed exception.

Democratic control would remain essential throughout the crisis⁶⁹⁵. The executive may need to act immediately, but it should not be able to maintain exceptional authority on its own.

Parliament must receive timely and sufficiently complete information, examine individual measures and possess the power to limit or terminate them. Political opposition, independent journalism, peaceful criticism, elections and parliamentary inquiry must remain protected, because democratic scrutiny is most important when fear and uncertainty strengthen the executive’s position.

Scientific and technical expertise would continue to play a central role, but experts should not replace political and constitutional judgment. Epidemiological models, intelligence assessments and cybersecurity analyses can clarify risks and possible consequences; they cannot independently determine which restrictions on liberty are socially acceptable. Authorities would need to disclose the information, assumptions and uncertainties supporting their decisions whenever possible.

Where secrecy is genuinely required, confidential parliamentary and judicial scrutiny should remain available.

Every confidential emergency decision should retain an auditable record of the legal basis, evidence considered, uncertainty, responsible decision-maker, affected rights, review date, and reason public disclosure was withheld. A designated parliamentary body, court, or independent reviewer should receive sufficient access to test the decision. Secrecy should expire independently of the emergency measure unless renewed on distinct grounds.

Fundamental rights would continue to apply during emergencies. Human dignity and the essential content of rights form a minimum that crisis policy cannot set aside. Measures must be suitable for addressing the threat, no more intrusive than necessary and limited in duration,

territory and affected population. Restrictions on physical liberty, political participation and non-suspendable rights, as well as measures producing irreversible harm, would require particularly close examination. The legal basis must distinguish ordinary limitations of rights from formal derogation⁶⁹⁶. Many crisis measures remain subject to the usual limitation clauses and proportionality review. Formal derogation under Article 15 ECHR or Article 4 ICCPR is exceptional, must be officially proclaimed or notified as required, must be strictly required by the situation, and cannot affect non-derogable rights.

Special attention is needed because emergency measures rarely affect everyone equally⁶⁹⁷. Confinement is more burdensome for people in overcrowded housing, digital education disadvantages families without suitable equipment, and business closures or quarantine rules may disproportionately affect flexible workers, migrants and caregivers. Older people, children, people with disabilities, detainees and residents of institutions may be especially dependent on public decisions while having limited ability to challenge them. Crisis policy must therefore examine how burdens are distributed and provide support or compensation where apparently uniform measures create severe inequality.

Social and ecological protections also remain relevant. A crisis may justify temporarily redirecting resources or reducing some services, but it should not permit living conditions to fall below a humane minimum. Nor should emergency action cause irreversible environmental damage unrelated to resolving the immediate threat. Any serious temporary deterioration should be accompanied by a credible plan for restoring protection after the crisis.

Independent judicial scrutiny provides a further safeguard. Courts should be able to review the declaration, continuation and application of emergency powers, provide urgent interim protection and order effective remedies. They should not manage the crisis or substitute their own policy for that of government. Their role is to ensure that decisions rest on adequate facts, follow the required procedures, consider less intrusive alternatives and end when no longer necessary⁶⁹⁸.

Emergency governance must also remain decentralized where possible. National coordination may be indispensable when risks cross regions or require uniform measures, but local authorities often possess better knowledge of circumstances and vulnerable communities. Responsibilities should therefore be assigned according to the scale of the problem. Centralization should occur only where coordination requires it, while municipalities and regional authorities retain room to adapt implementation when local variation is possible⁶⁹⁹.

 

Constitutional closure requires more than announcing that the danger has passed. Each exceptional power should terminate formally; emergency databases and surveillance tools should be deleted or transferred to ordinary legal authority; expedited contracts should be audited; continuing sanctions and restrictions should be reconsidered; and persons suffering unlawful or disproportionate harm should have access to redress. A public after-action report should identify which safeguards functioned, which failed, and which temporary arrangements must not migrate into ordinary administration.

Preparedness should include regular constitutional stress tests involving the executive, both Houses of Parliament, courts, decentralized authorities, oversight bodies, and civil society. Exercises should test secure information access, emergency sittings, rapid judicial remedies, continuity of elections and journalism, protection of vulnerable institutions, decentralized implementation, and the withdrawal of powers⁷⁰⁰. Results and corrective actions should be reported publicly except where a specific security interest requires temporary confidentiality.

The central benefit is that decisiveness and constitutional restraint would reinforce each other. Clearly defined responsibilities and credible oversight can increase legitimacy, public trust and compliance, thereby improving the effectiveness of crisis measures. Emergency law would no longer be understood primarily as permission to suspend normal constitutional principles, but as the mechanism through which those principles protect themselves under extreme pressure. The ultimate objective is a system capable of acting rapidly without allowing urgency to become a justification for unlimited or permanent power.

 

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691 European Commission for Democracy through Law, Respect for Democracy, Human Rights and the Rule of Law during States of Emergency: Reflections, CDL-AD(2020)014, paras. 10–17 and 121–123, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2020)014-e

692 European Commission for Democracy through Law, Interim Report on the Measures Taken in the EU Member States as a Result of the COVID-19 Crisis and Their Impact on Democracy, the Rule of Law and Fundamental Rights, CDL-AD(2020)018, paras. 27–31, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2020)018-e

693 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006); Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis (Cambridge: Cambridge University Press, 2006).

694 European Commission for Democracy through Law, Emergency Powers, CDL-STD(1995)012; John Ferejohn and Pasquale Pasquino, ‘The Law of the Exception: A Typology of Emergency Powers,’ International Journal of Constitutional Law 2, no. 2 (2004): 210–239.

695 European Commission for Democracy through Law, CDL-AD(2020)014, paras. 77–91; European Parliament,

national-parliamentary and comparative materials on parliamentary oversight during COVID-19

696 European Convention on Human Rights, art. 15; International Covenant on Civil and Political Rights, art. 4, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights; UN Human Rights Committee, General Comment No. 29: States of Emergency, CCPR/C/21/Rev.1/Add.11 (2001).

697 UN Committee on Economic, Social and Cultural Rights, Statement on the Coronavirus Disease Pandemic and Economic, Social and Cultural Rights, E/C.12/2020/1; UN Committee on the Rights of Persons with Disabilities, Statement on COVID-19 and the Rights of Persons with Disabilities (2020).

698 European Court of Human Rights, A. and Others v. the United Kingdom [GC], App. No. 3455/05, Judgment of 19 February 2009; European Commission for Democracy through Law, Rule of Law Checklist, 2nd ed., section on emergency powers.

699 Daniel Halberstam, ‘Federalism: Theory, Policy, Law,’ in The Oxford Handbook of Comparative Constitutional Law, ed. Michel Rosenfeld and András Sajó (Oxford: Oxford University Press, 2012); European Charter of Local Self-Government, arts. 4 and 9.

700 OECD, Government at a Glance 2023, chapters on crisis governance and public trust; National Academies of Sciences, Engineering, and Medicine, Evidence-Based Practice for Public Health Emergency Preparedness and Response (Washington, DC: National Academies Press, 2020).