Avoiding desperate measures in desperate times. Crisis Governance in Multilevel System
Pandemic, climate change, wars. This “extended period of instability and insecurity, resulting from a series of catastrophic events” – also referred to as permacrisis1 - seems to have become a constant of our days, underlined by the fact that the word permacrisis was even nominated Word of the Year 2022. But does having the vocabulary equate to having the solutions? Exactly how prepared are states to react to these crises? Is the separation of power being challenged? And most importantly, how legitimate are government reactions?
These were some of the questions explored during the International Munich Federalism Days in May 2023 where experts in different disciplines discussed crisis policymaking in and across levels of government and assessed policy performance in past crisis situations.
Including crisis management in constitutions
An important starting point for legitimate crisis management is to develop effective guidelines that are juridically anchored in constitutions. In turn, procedural channels to cope with crises should be rational, pre-determined, non-arbitrary and democratic. However, efficiency does not necessarily provide legitimacy.2 Frequent reactions to crises have often included restrictions of fundamental rights and centralization of powers, both on horizontal and vertical levels which is particularly problematic when it takes place outside of a constitutional framework. In addition, the last years of the COVID-19 pandemic showed that the legal base referred to during emergency management was often outdated (see Nigeria’s law of 1926) or had originally been deliberated for a different purpose (Public Order Act in Kenya). This outlines the importance of making constitutions fit for dealing with emergency situations even more, especially within federal systems. Federalism, by its very nature a tool for protecting more than one interest and democratically organizing pluralism, can only be effective if combined with the rule of law.
Cooperation of powers
By analyzing each government power separately, various reactions to different crises responses emerged. For instance, when dealing with COVID-19 management, especially in its early stages, the executive power very often adopted centralized approaches. In India, the mechanism activated included federalism’s fend for yourself approach. In contrast, during secession crises, reactions varied between accommodation and compromise (Canada) to military suppression (Punjab) and removal of regions special rights (Kashmir).
The executive government often predominated over its legislative counterpart which led to less checks and balances. Fast tracked legislation with no real deliberation time and so-called omnibus bills limited the legislative function of parliaments. In addition, the oversight function of local governments was in some cases initially neglected during COVID-19, however then re-established with time (as for example in the Spanish case).
Seamless cooperation among powers is often hindered by the practical obstacles that arise during crises and can include such things as the inability to gather in one place or poor communication due to bad internet connectivity. During COVID-19, in some cases even the physical separation of powers was not respected. This happened in Ethiopia, where parliaments work occurred door to door with the prime minister’s office.
When special measures are taken, returning to the status quo after a crisis is often obstructed by the decision makers themselves. In Brazil, the joint commission of its lower and higher chambers was abolished, and its re-establishment was hampered by the lower house: this led to territorial interest being underrepresented.
In such situations, as support to the other powers, the judiciary should ensure the correct application of the rule of law and human rights. This is indispensable in maintaining the legitimacy of crisis management institutions and citizen’s trust. Unfortunately, many times disputes on crisis management reach courts when the crisis itself is already over. However, the promotion of a system of power that allows mistakes and enables (self-) corrections also becomes as relevant as the legal quality of decision.
Coordination among actors
The involvement of local authorities, international organizations and civil society is key for legitimate crisis governance. Indeed, over time the role of civil society has become more procedural and institutionalized within the decision-making landscape. In a situation of crisis, it is fundamental to link relevant actors with the correspondingly competent governmental level, especially in multi-level system. Pathways to further institutionalize participation should come from both sides, civil society, and governments.
Conclusively, it can be said that there is no one-size-fits-all solution even though each state may be liable to react to crises differently. However, the principles of subsidiarity and proportionality should always be considered in responses. Cooperation – between different levels of government, vertically as well as horizontally – is fundamental. Separation of power and controlling mechanisms must be respected and local authorities, civil society and international organizations involved.
An ongoing exchange on different best practice solutions is certain to help better shape the guidelines developed in the framework of state constitutions.
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