Sunset clauses: Don’t let the sun go down on democracy

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Authors
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Rosie Frost

Commentary

Sunset clauses: Don’t let the sun go down on democracy

Just under half of 33 countries do not have a sunset clause in their emergency COVID-19 legislation, WFD’s Pandemic Democracy Tracker shows.

As the month containing International Day of Democracy, September is always a time to reflect on the global state of democracy. This year, alongside the usual challenges and victories and the continuing downward global trends, we are taking stock of the unprecedented impact of COVID-19. This includes unusual attention on so-called sunset clauses.

In June 2020, over 500 civil activists, Nobel Laureates, former state leaders, and pro-democracy institutions including WFD, signed an open letter titled ‘A Call to Defend Democracy’, laying out the threat that the pandemic poses. With the need to introduce emergency measures, democratic states risk drifting towards authoritarianism, amassing emergency powers, side-lining oversight processes and undermining civil liberties.  

As Chair and Vice-Chair of WFD’s Board of Governors, Richard Graham MP and Rushanara Ali MP, recently put it in The Times (£), “Democratic constraints matter because when emergency measures become permanent, corruption and abuse of the law soon go unpunished, civil rights are unprotected and security forces become a threat.” 

Clearly the stakes for democracy are high. 

Westminster Foundation for Democracy (WFD) has created a Pandemic Democracy Tracker to monitor the democratic quality of COVID–19 responses in countries we work in.  

Sunset clauses

One thing it is tracking is the use of sunset clauses in emergency legislation. A sunset clause is a provision in legislation that gives it an automatic expiry date once it is passed into law. This means that the emergency legislation cannot be in place indefinitely. 

Sunset clauses are a simple and effective way of preventing the normalisation of emergency measures and signaling the willingness of governments to cede their new powers when the emergency is over. They are a vital part of a ‘human-rights compliant’ COVID 19 response, according to the United Nations. They are not, of course, a silver bullet to protect democracy from authoritarianism. Their effectiveness relies heavily on the quality of the review, and they are open to manipulation and constant extension.1   Sunset clauses are, nevertheless, an important litmus test for the sincerity with which a government is safeguarding democratic rights and principles and have been widely discussed and debated in recent months.  

48% of countries we work in do not have a sunset clause in COVID-19 emergency legislation

So what does the Pandemic Democracy Tracker say about sunset clauses? Are states listening to calls from academicsjournalists, and human rights institutions to take sunset clauses seriously?  

Worryingly, the answer is no. Just under half of our 33 programme countries do not have a sunset clause in their emergency COVID–19 legislation.  

For example, in Nepal, the government is relying on the 57-year-old Infectious Disease Act that gives it sweeping powers, and as it is not new legislation, there has not been the opportunity to insert a sunset clause. In Indonesia, there is no sunset clause in controversial emergency legislation that anti-corruption activists have flagged as open to abuse, and that is now the subject of multiple petitions to the Constitutional Court.  

Of course,  52% of the countries we track have sunset clauses. Since we launched the tracker, three countries – SerbiaMontenegro, and Morocco – have transitioned to having sunsets clauses, showing steps in the right direction.  

However, democratic norms remain at risk in many states. Over half of the countries that have not included a sunset clause are those that are on a downward trend away from democracy, according to Freedom House annual scores, suggesting that COVID-19 is being used as an excuse for poor democratic behaviours. Clearly the attention paid to sunset clauses and the management of emergency legislation in recent months has not resulted in the desired actions, and democracy continues to require protection against the opportunities for power expansion that emergencies such as COVID 19 provide.

Explore our data

The Tracker is available to view online. You can also follow updates from the tracker at @WFD_Tracker on Twitter, and get involved in the conversation using the hashtag #PanDemTracker. You can challenge the information displayed on this website, as well as suggest updates by submitting an online form.