How emergencies diminish the legislative power in favour of a strengthening of the executive and how this affects human rights
The doctrine of a separation of executive and legislative powers has represented one of the main tenets of Western constitutionalism, related as it is to concepts of democratic rights and popular sovereignty (Friedrich). Indeed, constitutional provisions in several states institutionalise various balances of power between the executive and legislative branches. Therefore, in some systems, the executive has the power to set the agenda for legislative committees, whereas in others, assemblies can supervise government initiatives and decisions, thereby offering greater advantages to the executive to push its agenda through the legislative branch and avoid scrutiny and supervision. However, what happens in times of crisis is a different story. Indeed, there is a documented tendency to turn increasingly to the executive when it comes to emergencies and this has always been the case.
Past and recent practices
The Republic of Rome used to appoint dictators in order to deal with an emergency, but only for six months. In the Middle Ages, Italian city-states used to appoint condottieri (warriors) or noblemen as podestà or capitani del popolo in order to cope with internal disorders or dangers coming from the outside — rescuers who frequently would become the sovereigns (Signori) of the cities that they were asked to protect. In the Third French Republic (1870–1940) the Constitution included special executive powers (pouvoirs pleins) and functions in times of emergency and something similar was in place in Germany under Article 48 of the Weimar Constitution (1919–1933).Overall, from the Roman Republic to the Italian city-states during the Renaissance, from the French Third Republic to Weimar, history provides lots of examples in which, in the event of an emergency, institutional provisions include the concentration of power. This is why academics have suggested the presence of a causal relationship between crises and the growth of executive power.
More recent democratic constitutions have also provided more powers to the executive in times of crisis, but only for as long as that was in place. Therefore, United States President Abraham Lincoln and later Franklin Roosevelt claimed and exercised exceptional powers during the Civil War and World War II respectively, legitimated by what Dicey calls “acts of indemnity” to legitimise action - including illegal action - already taken by the executive, withdrawn or left unchallenged. What occurred in New York and Washington on 11 September 2001 and the subsequent so-called war on terror professed by George W. Bush undoubtedly represented a crisis, not only in the United States but also in other political realities, partly because of the US’s hegemonic position in shaping and influencing many other countries’ foreign and domestic policies. External shocks to democratic systems often endanger the balance of relations between the executive and the representative assembly. Moreover, they can disrupt and threaten constitutional politics, and damage democratic institutions.
State of crisis and of “exception”
Several scholars have argued that critical events (war, civil wars, terrorist attacks, and other crises) may contribute to a strengthening of the executive. Since emergencies require immediate responses and executives are thought to be more capable than parliaments and legislatures of taking such actions, more power is concentrated in their hands. In addition, by effectively managing emergencies, executives gain greater legitimacy in the eyes of the people. When this occurs, executives may institutionalise their enhanced powers. Schmitt and Rossiter regarded the causal link between emergencies and the strengthening of executive power as necessary and unavoidable. In order to face an “exception”—or critical event—Schmitt claims that political order cannot be retained by constitutional provisions alone, but by a “sovereign”, an extra-constitutional authority. Nevertheless, while Rossiter claimed that emergencies caused a momentary expansion of executive power, other scholars consider such events responsible for the acceleration of a long-term secular tendency towards executive strengthening.
What is occurring in the present suggests that crises of different types are increasing and getting more frequent as well, almost as if there is always a new (or old) emergency to deal with. Schmitt argued that a constant state of emergency translates into what he would call the state of exception. Some scholars have investigated the possibility of making an analogy between Schmitt’s state centric decisionism and a new form of decisionism, in which the international community devises a framework for a binding political decision to deal with crises. In the context of the United Nations such exceptionalism can be found in Articles 24 and 25 of the Charter, which allow, inter alia, the Security Council to surpass state sovereignty (under Chapter VII).
Globalisation, democracy and human rights
According to Saskia Sassen, the increasing power of the executive today is a deeper problem. It is a process that started in the 1980s and is part of the structural evolution of the liberal state. Indeed, the birth of a global corporate economy has further bolstered the executive branch and weakened the legislative one. It began in the 1980s, when the current globalisation phase started, and has grown ever since, no matter which country is taken in consideration or which parties were in power. Therefore, globalisation has had its own autonomous effect in sharpening executive power and in weakening the legislature. Sassen identified different trends in the global economy that encourage executive power, like for instance intergovernmental organisations, the principal global bodies, namely the International Monetary Fund and the World Trade Organization, together with lesser-known ones which bargain only with the executives. According to Sassen’s analysis, today, the liberal state is responsible for its own democratic deficit. Emergencies and crises become just a part of a greater issue that Sassen considers as intrinsic in liberalism.
As executives are strengthened, the balance between executives and assemblies is not the only one affected. To some extent, democracy as a whole is affected as well. Tendencies such as those which have been analysed so far increase the distance that already exists between the citizenry and the places of power. When assemblies are downgraded, the people are as well. In this way participation is discouraged and it results in either participating less or general discontent, both bad symptoms within any system which aspires to be called democratic. Indeed, democracy seems to be in trouble, with populist and illiberal movements on the rise worldwide: for more than a decade, authoritarian populists all over the world have managed to reach power. It occurred in the Philippines and in India, in Brazil and the United States, in Poland and Hungary, and even though Rodrigo Duterte and Jair Bolsonaro were at first scorned as unskilled leaders who would soon be out of office, they proved themselves successful in keeping their popularity intact. For a decade or more, examples of populist leaders being defeated on election day have not been many. Even though municipal initiatives going against this populist trend were not missing, looking at the past year, with the exception of Donald Trump, dictators and their followers have had a relatively good time: Vladimir Putin and Xi Jinping are more self-confident than ever; Alexander Lukashenko and Nicolás Maduro, in Belarus and in Venezuela respectively, look as they have come through strong challenges to their rule. Already in 2008 Larry Diamond, an important thinker in democratic theory, argued that a “democratic recession” was occurring. Indeed, every year, more states are becoming less democratic and, according to Freedom House’s last report, the aforementioned recession entered its 15th consecutive year, with 73 states becoming less democratic in the course of 2020.
It could be argued that the main reason for this democratic recession stems from a general discontent towards politics and how globalisation was generally handled. Indeed, these rising movements often go against migration, international institutions and favour conservative policies which seem to reject what globalisation implies. Rejecting globalisation and what comes with it cannot be a long-term sustainable solution since globalisation is unavoidable, but this resentment highlights that something has to be changed. Today it is very easy for this discontent to translate into resentment towards the establishment. This happens because the widespread assumption is that politics is the entity which has the power to satisfy people's desires. But, as people find that many of their desires are not fulfilled, then the disappointment towards politics turns into resentment and even hatred. On the representation level, this resentment and discontent has brought, among other things, what nowadays is called populism. Populists have their own solution to fill the ever-growing distance between the citizenry and decision-making places, but these cannot be considered a viable solution in line with democratic principles and the respect of human rights. As a matter of fact, when democracy is threatened, so are human rights. The interdependency and mutual compatibility of democracy and human rights have been generally unquestioned and rest upon many familiar claims and trends. These comprise the interdependency of many civil and political rights and any democratic system. It is also a commonplace to assert that, more often than not, liberal democracies, as such, feature an affirmed support for human rights. Moreover, there is a significant amount of legally binding and non-binding proclamations, UN declarations and Treaty Body general comments which affirm the interdependency of democracy and human rights.
Conclusions
History makes it evident that there is a generalised tendency among countries to centralise power and increase executives power. This was true centuries ago and is still a reality today, also thanks to studies and theories developed by authors such as Schmitt and Rossiter. As far as democracy and human rights are concerned, evidence shows that phenomena of this kind have negative effects on the safeguard of human rights and democracy as a whole.
This excerpt summarised just one aspect of the whole master thesis, which first started by analysing the phenomenon of globalisation and its various dimensions and challenges, the main institutions of global governance, their most evident controversies and then went on to design an alternative model of cosmopolitan democracy based on local governments rather than nation-states, addressing the reasons and limitations of such a hypothesis.