Sanaa Alsarghali is Assistant Professor of Constitutional Law, An-Najah National University (firstname.lastname@example.org) and author of The ‘State of Emergency’ or the ‘State of Exception’: Bahrain and COVID19
In response to the covid-19 pandemic, governments across the world have had to implement emergency measures to confront the crisis. These measures have come in various forms, ranging from economic stimulus packages to establishing varying degrees of lockdown. These types of rapidly implemented measures are deemed as emergency provisions, often declared though calling a ‘state of emergency’, as they allow governments to pass regulations without going through normal legislation procedures. Whilst many of these measures are appropriate, and indeed effective, in managing the spreads of the virus, the increasing frequency of emergency power use has caused discomfort in some quarters that fear constitutional norms and democratic principles could become subverted if emergency power use becomes normalised. At its most extreme, the use of emergency powers by governments become perpetuated indefinitely, a condition of governance that has been termed as a ‘state of exception’ in which the citizenship is unaware of this prolonged state of emergency and normalisation of emergency powers.
In the Middle East and Gulf region this concern over the normalisation of emergency powers is more pertinent, as many Arab governments have had a long history of emergency power abuse. Whilst the Arab Spring uprising in 2011 reversed this trend to some extent, the pandemic may accelerate what this paper terms as emergency power creep – the tendency to slowly use and introduce emergency powers outside of the ‘state of emergency’ and into normal governance. Bahrain provides an emblematic example of this emergency power creep which, since the pandemic, has become normalised to the extent that Bahraini citizens have become willing participants in this process.
The emergency power creep began in Bahrain around 2013 following the Arab Spring uprising in February of 2011. In this period, emergency laws have been passed despite it being a period of normalcy. For example, in this time, the definition of ‘terrorism’ was broadened to include various forms of activism and the punishment for ‘terror’ could now also involve a revoking of citizenship. In 2017 Constitutional amendments have also been made to allow military courts to be used for citizens in times outside of martial law. Furthermore, measures and institutions have been developed in this period to allow for draconian forms of cyber surveillance, which alongside restrictions being made on free speech, has made the arresting of social media users and journalists common place.
The pandemic has also seen emergency creep take place, with the added active involvement of a largely unaware populace. Indeed, Bahrain has been lauded for its Covid-19 policies, from it citizens at home and from international bodies. In particular, it’s stimulus package announced on March 17 that provided $1.5 billion dollars to fund a series of 3-month relief initiatives- a policy which has been continually extended. The authorities have also taken on-board the procedures suggested by the WHO, incorporating measures such as social distancing, the mandatory use of masks while in public and stay-at-home policies. This response to the Covid-19 crisis has been wide-ranging and for many, appropriate, considering the dangers this pandemic has for the health of the public. However, these measures have not been passed via normal channels; they have not been authorised by the legislator (parliament) – and yet have been passed without the government declaring a form of emergency. In other words, ‘emergency measures’ are being passed without the declaration of emergency, suggesting a form of normalisation is taking place.
This process of normalisation is perhaps most evident with the “BeAware Bahrain” app which while devised by the government to aid track and trace measures has been criticised for also facilitating the monitoring of opposing political party members and activists. The app requires users to register with their national ID and become paired with a Bluetooth bracelet which is used to make sure the user remains in the vicinity of the phone (in order to enforce quarantine measures). This level of data harvesting, and the recent criminalisation of failing to use this app, seems particularly liable for use in human rights violations. Furthermore, the app and its dangers has been sanitised by Bahraini TV programs that can acquire anyone’s contact details through the app in order to develop game shows. In one instance, during Ramadan, the TV show was able to select ten random phone numbers which were then called, live on air, to check if they were home – those that were, won a prizes. This example provides a clear indication of how a country’s citizenship can become passive participants in an emerging ‘state of exception’.
Although many countries have not declared an outright emergency in response to the pandemic (due to constitutional provisions allowing for a rapid response in other ways), in countries that have a history of emergency power abuse, it is important to make clear the distinctions between periods of emergency and normalcy. Often constitutions have clear stipulations for the use of emergency powers in times of crisis that includes limits regarding time period (usually between 2 to 6 months); extensions (usually requires approval from legislative councils); and compulsory requirements that allow the legislative body an opportunity to review all the measures and arrangements adopted during the emergency period. However, without this distinction between emergency and normalcy, these strict stipulations can be by-passed. That there was no need for the Bahrain authorities to formally declare a ‘state of emergency’ in response to the pandemic suggests that the government has already obtained the level of exceptional powers needed to facilitate a rapid response to a public health crisis. Put simply, the Bahrain response to the covid-19 pandemic, whilst admirable and extensive, also demonstrates how Bahrain has already normalised the use of emergency measures.