of the potential triggers for a potential adjournment is “an epidemic notice given under section 5(1) of
the Epidemic Preparedness Act 2006 being in force.”23
As these country examples illustrate, it is important to clarify where the rules around term limits and
electoral deadlines reside in the hierarchy of laws. As IFES has written about previously, an understanding
of the hierarchy of laws is fundamental to the rule of law, as it dictates how the different levels of law will
apply in practice.24 This helps determine whether provisions already exist that allow for postponements
in exceptional circumstances, or if not, how easy the relevant term limits and deadlines are to modify.
A legislative deadline or term limit may be easier for lawmakers to adjust during an emergency than
a constitutional deadline. Or, emergency provisions in a constitution may allow decision-makers to
override deadlines in the electoral laws or to enact emergency legislation. This does not suggest that
term limits should not be protected in constitutional frameworks. However, the pandemic is creating
extraordinary situations that constitutions, electoral laws and emergency powers legislation may not
have contemplated. In some situations, such as the United States, any postponement will be legally or
politically impossible, and focus must be instead on modifications to electoral processes and frameworks
(discussed below) to protect public health as elections move forward.
The Silence of the Laws
Lacunae in legal frameworks present new challenges as electoral processes and emergency powers
collide. Occasionally, the constitutional or legal framework in a specific country may provide for
continuity of government beyond a mandated term, but in many other cases it is silent.
In Myanmar, the Constitution explicitly provides that “after the expiry of the incumbent term, the
President and the Vice-Presidents,” who are elected indirectly, “shall continue their duties until the time
the new President is duly elected,”25 but no similar provision exists for members of Parliament (MPs).
Hence, if elections are postponed beyond the end of a legally mandated term of office, questions may
arise as to the legitimacy of office holders, even if a state of emergency is in place. Any decision to
postpone would be significant, as Myanmar is facing a major general election this year — the second
since a civilian government came to power in the 2015 democratic transitional elections. The timing of
elections in Myanmar is determined by the Constitution and election laws, and there are three relevant
sets of provisions in the 2008 Constitution. Taken together, these provisions require that – if there is
to be no legislative interregnum, which would be constitutionally problematic – the election be held
no later than January 2021.26
In North Macedonia, the Constitution provides that the mandates of the judges of the Constitutional
Court, the president, the government and members of the Republican Judicial Council are extended
for the duration of the state of war or state of emergency.27 However, the provision is silent about the
current unprecedented situation where a state of emergency has been declared, but a dissolution
of Parliament has already occurred. Hence, no legal norms clearly regulate whether Parliament can
convene; if Parliament convenes, whether MPs would have a mandate until new MPs are elected, and
whether their powers would be the same; whether Parliament reconvening would impact existing
executive decrees promulgated during the state of emergency; and whether the speaker can amend
the decision to call elections.
Where emergency measures conflict with constitutional deadlines for elections, or if there is silence as
to how these legal provisions interact, this can result in pressure to move ahead with an election, or to
risk a real or perceived constitutional crisis. In the Autonomous Region of Bougainville, forthcoming
general elections are highly anticipated and heavily contested in light of an independence referendum
held at the end of 2019. The Constitution requires general elections to be held every five years,28 but
International Foundation for Electoral Systems
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