Power, Law and the COVID-19 Pandemic – Part II: Preparing for Future Emergencies

See Part I: The Year of Pandemic

Acts to Address COVID-19

In response to the concerns about executive dominance, legal uncertainty, and the lack of parliamentary oversight and control, a common theme across countries has been to press for targeted legislation which addresses the pandemic, returning oversight and control to legislatures as well as providing a clear and limited legal basis for action. For example, as advocated for Colombia, such a legislative act would ‘resolve the questions of who can take measures that severely restrict the fundamental rights of citizens for the control of a pandemic and how such measures can be adopted.’ Similar calls for parliamentary legislation have been made in India and Bangladesh, particularly where such an act – or at least reform of pre-existing provisions – could provide a framework based on equality and transparency.

However, ‘Corona Acts’ have rarely, if ever, proven to be a panacea. Legislation introduced in the haste that emergency provokes can often suffer from legal deficiencies including vague and open-ended terms providing for the wide delegation of discretionary powers, and a lack of parliamentary oversight both at its promulgation, but also in its application. For example, the Swiss ’COVID-19 Act’, remains ‘too vague for ordinary legislation’ and as emergency legislation, it represents a ‘form of empowerment vis-à-vis the government that lacks a constitutional basis’. Where such acts make permanent changes, this can introduce a form of ‘emergency creep’ infecting ordinary law and governance beyond the pandemic.

These concerns are all the more manifest where ‘new’ states of [health] emergencies are created, but their use and limits are dictated by governments rather than constitutions. France allows for the ‘deep and wide’ restriction of rights but does not ostensibly introduce measures to tackle the pandemic which did not previously exist. In Bulgaria the introduction of the ‘state of epidemiological conditions’ is determined by the executive with uncertain definition and constraints, which allows for the limit of fundamental rights based on executive orders only.

Legal reform will be necessary as states examine the efficacy and adequacy of their responses to the pandemic. The experiences of Singapore, Taiwan and Hong Kong are evidence for reform and preparation by learning from experience. Taiwan, despite being barred entry from entry to the World Health Organisation, and its close proximity to China, is considered paradigmatic of a ‘successful’ response to the pandemic having both low mortality and infection rates coupled with the least restrictive measures in the world, and with relatively minimal disruption to government services, access to the courts, business and education. Reforms of the law and institutions, notably the Centre for Disease Control, enabled fast action as well as providing government with capacity to introduce measures for economic relief, compensation, and stimulus.

A fast-acting government response, coupled with extensive and free public testing and tracing, meant that South Korea avoided implementing many of the more restrictive measures including lock-down, and did not declare a state of emergency. In echo of similar experience in Taiwan and Hong Kong, such action was enabled by reforms following the mistakes made during the initial responses to the MERS outbreak in 2015, including the introduction of administrative provisions which allowed for the collection of personal data and tracking. One reality is that the timing and speed of response is central to the most positive outcomes across public health, the economy and the trust in the political system: but this response relies on preparation and the reform of legal provisions, institutions and frameworks where they have been found to be deficient.

There are certainly failings in current legal measures which should be immediately remedied but, to borrow a metaphor, ships are best built in a safe harbour – not in the middle of a storm. There will be time for reform, and this should build on global comparative experience which is adapted to local conditions, institutions, cultures, and environments.

A Human-Rights Based Approach

The pandemic is ‘an economic crisis. A social crisis. And a human crisis that is fast becoming a human rights crisis’. Human rights violations undermine public health, just as poverty connects with the worst health outcomes. The pandemic has exposed endemic social and structural weaknesses, as it has most negatively impacted those already in a vulnerable position, including minority communities, women and children, asylum-seekers, the elderly, those with physical or mental disabilities, refugees and undocumented migrants. Domestic and gender-based violence has spiked across the world. As Alice Donald and Phil Leach write:

This dramatic increase results from a perfect storm of factors, which itself exemplifies the interdependence of human rights of all kinds. Restrictions on movement, economic insecurity, a decrease in police interventions, and the closure of courts and emergency services have emboldened perpetrators and aggravated the risks faced by women and girls.

Enforcement measures are more likely to be applied to already marginalised communities, and have been applied in a discriminatory manner against already stigmatised groups including the disabled, minority religious communities, and LGBTQ+. Such arbitrary application is damaging. Inconsistency in the application of provisions can show political bias, as in Sri Lanka where the use of guidelines was to prevent protest by families of the disappeared, but was not applied to government events and private functions attended by officials. In Croatia and Kenya, disproportionately favourable treatment was shown to politically important events favourable to the ruling parties. Measures provide a cloak for targeted discrimination against protesters, political opponents and those who have criticised government decision-making including doctors and journalists. In Turkey and Poland, peaceful protests were banned but political gatherings in support of government were praised and took place without restrictions being enforced.

Economic policy choices can inadvertently work against effective pandemic response – for example, in Thailand, the choice to control the cost of face masks effectively disincentivised domestic production. Economic rescue measures can also further entrench inequalities where they are often being placed beyond the reach of informal workers – a majority of whom are women. Even in otherwise ‘successful states’ such as Singapore, the hidden workforce of low-wage migrants were disproportionately affected by the disease. However, in Singapore, this did inspire an ostensible change in political rhetoric towards inclusion with the promise of free vaccinations.

Stimulus packages can also be hampered by mismanagement and corruption, exacerbating the growing disparity between politically advantaged and disadvantaged members of the population. Contingency planning and safety nets were removed following the ‘third wave’ in Kenya, but had already previously been tied with allegations of corruption. In Bangladesh, there were reports of bribes in return for the promised grant payments. Levels of corruption effectively diverted both attention and resources away from effective pandemic management. Similar questions over the opacity of funding and donations were raised in India.

The alternative, and here we advocate the best practice to be adopted, is a Human Rights Based Approach. This approach connects the protection of public health with upholding human rights. Human rights frameworks can ensure accountability during emergency, necessitating that measures be legal, necessary and proportionate and (where derogation is applied) as is strictly required by the emergency. A Human Rights Based Approach ‘requires governments to meet their obligations by embedding fundamental principles of participation, equality, non-discrimination, transparency and accountability into their practices’ and ‘strengthens the focus on marginalized and vulnerable groups’. Such a framework can be the means of designing long-term recovery solutions by recognising the universal right to health, and can also embrace new rights such as access to the Internet, as well as embracing innovations to improve access to justice and more resilient and inclusive education systems.

Information, Justification, Public Participation and Public Trust

U.N. Secretary-General António Guterres called the current situation a ‘pandemic of misinformation’ encompassing not only proliferation of ‘fake news’ but also the increasingly controlled use of information by governments, and the lack of transparency behind government action. Brazil, China, Hungary, and Russia, have restricted or sus