International law says Michigan has no right to take away rights
By Mark P. Fancher
Special to the Michigan Citizen
Across the country, many minds have been boggled by the fact Michigan has an Emergency Manager law that allows the Governor to place all authority normally possessed by a mayor and city council in the hands of a single, unelected and essentially unaccountable individual. This breathtaking piece of legislation — which has been invoked most often in cities with substantial Black populations — strips citizens of many of their democratic rights, all in the name of addressing economic crisis.
How does Michigan get away with this? After all, the primary source of political rights in this country is the U.S. Constitution, and that document does not speak to how certain political rights it confers can be suspended. In the absence of constitutional guidance, courts sometimes look to international law. The suspension of democratic rights in Detroit and other Michigan cities in the manner authorized by Michigan’s Emergency Manager law is regarded as illegal under international law, even when underdeveloped countries with economies far worse than Detroit’s are involved. The irony is that some compare Detroit to the “Third World.”
In a lawsuit challenging the constitutionality of the Emergency Manager law, the American Civil Liberties Union (ACLU) of Michigan filed a friend of the court brief that explains under international law, the declaration of a state of emergency allowing the suspension of political rights is permissible only under very specific circumstances.
The International Covenant on Civil and Political Rights as well as other treaties say suspension of the right to participate in public affairs individually and through freely-chosen representatives can occur only when there is an emergency that “threatens the life of the nation.” In other countries where that standard has been met, there have been terrorist activities, general strikes, natural disasters, economic anarchy, civil war and other events on a comparable scale that have essentially shut down the government or the economy. Notwithstanding its economic challenges, the beat goes on in Detroit. Shops and service firms still transact business, crowds flock to professional sporting events, classes are conducted at the universities, and the museums are still open to the public.
The nature and quality of the “emergencies” specified by Michigan’s Emergency Manager law pale in comparison to those that justify the suspension of political rights under international law. Furthermore, the ACLU brief explains once political rights are lawfully suspended, they must be restored as quickly as possible. In Michigan, a city can be under emergency management for years.
Finally, the brief points out even if the Michigan Emergency Manager law required the requisite larger scale emergencies, its implementation would still run afoul of international law’s prohibition of practices that have the “purpose or effect” of racial discrimination. Cities like Pontiac, Flint, Benton Harbor, River Rouge, Highland Park, and of course Detroit all have sizeable Black populations. They have also had emergency managers.
Those who leave Michigan should not rest easy. Michigan just might be the model for how to disempower communities of color nationwide.
Mark P. Fancher is the attorney for the ACLU of Michigan’s Racial Justice Project.