Written by: Diana De Mata
The COVD-19 pandemic has resulted in a legal crisis in all countries of the world. The legal systems have been reached in the fight and confrontation with this serious health crisis. It is in this scenario that we ask ourselves: Where are our freedoms? ; What role should our authorities play in the effective restoration of order? and, therefore, what should we expect and demand from them?These are just some of the questions on which it is necessary to reflect in order to reach conclusions that allow us to have a clearer criterion regarding the legal-constitutional challenges in terms of individual freedoms that this or any other emergency situation may present to us in the future. And this is precisely the objective that this article aims to achieve, to be a reference document for the reader on the most relevant legal-constitutional reflections on emergency situations, such as the COVID-19 pandemic, and its interaction with individual freedoms.
The state of “full force” is the natural and ordinary state of human rights
To give context to this first reflection, it is pertinent to quote the famous phrase of the American human rights lawyer, William Ramsey Clark, who says: “a right is not something that someone gives you; it is something that no one can take away from you. “
The state of “full force” is the natural and ordinary state of the rights of the individual derived from his special and superior dignity of “human being”. The full enforcement of human rights is the rule, not the exception. But then why in an emergency situation is the restriction of rights and guarantees of the individual allowed?
The restriction of the exercise of rights is essential during an emergency situation to safeguard human rights and the rule of law
From the legal doctrine, the phenomenon of a “state of emergency” should be understood as a “crisis in the constituted legal order” by virtue of which, the pre-existing balance of powers within the State is altered by an extraordinary situation 1 .
This “imbalance of powers” is evident because, as Carl Schmitt established in his work “Political Theology”: “it is the sovereign who decides on the state of exception” 2 . And it is precisely noted how in a situation or state of emergency it is the executive power and not the legislature, who takes the lead on the need to declare it, for how long and under what conditions and measures.
Although it may seem ironic, it is therefore important to understand and accept that the restriction of the exercise of fundamental rights during a state of emergency is a necessary – indispensable – tool to safeguard the validity of human rights and the rule of law, and not an instrument to suppress them. . It is worth warning the reader in this second reflection that what is “suspended” or “restricted” is the “exercise” of rights and not the rights themselves, since these, due to their attributes of universal, absolute and inalienable They cannot be altered in their essence and nature and, therefore, they can never be suspended or restricted in themselves.
We can say then that the restriction or suspension of the exercise of fundamental rights is the maximum “crisis power” that a government can exercise in times of emergency. And it is necessary to note that the relevance of this crisis power does not derive only from how “invasive” it results in the life and legal sphere of individuals, but from how “easy” this power is, as a legitimate tool to safeguard the fundamental rights and the rule of law, can become the worst weapon in the hands of a government to destroy the very objective it seeks to protect.
The maximum “crisis power” that governments hold in emergency situations is recognized and legitimized within the framework of International Human Rights Law.
Both at the level of the internal law of the States, as well as at the international level, the legal possibility exists and is accepted to restrict or suspend the exercise of certain rights in emergency circumstances in order to protect the validity of the rest of the rights. As a reference for the reader, the basic normative framework in International Human Rights Law that contemplates the possibility of restricting the exercise of rights in emergency situations is made up of:
- The International Covenant on Civil and Political Rights (article 4):
“1. In exceptional situations that endanger the life of the nation and whose existence has been officially proclaimed, the States Parties to the present Covenant may adopt provisions that, to the extent strictly limited to the exigencies of the situation, suspend the obligations contracted by virtue of this Pact, provided that such provisions are not incompatible with the other obligations imposed by international law and do not entail any discrimination based solely on reasons of race, color, sex, language, religion or social origin. (…). “
- The American Convention on Human Rights (article 27):
” Article 27. Suspension of Guarantees
- In the event of war, public danger or other emergency that threatens the independence or security of the State Party, the State party may adopt provisions that, to the extent and for the time strictly limited to the exigencies of the situation, suspend the obligations contracted under of this Convention, provided that such provisions are not incompatible with the other obligations imposed by international law and do not involve any discrimination based on race, color, sex, language, religion or social origin. (…). “
- European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 15):
“Article 15. Repeal in case of a state of emergency.
1. In the event of war or other public danger that threatens the life of the nation, any High Contracting Party may take measures that derogate from the obligations set forth in this Agreement to the strict extent required by the situation, and provided that such measures are not in contradiction with other obligations arising from international law. (…). “
The restriction of the exercise of individual freedoms in emergency situations by governments must always be framed in general principles of International Human Rights Law so that it is legitimate and consistent with its nature and purpose.
Based on the fact that the confrontation or combat of a state of emergency by a government will always and necessarily suppose a situation of “legitimate violation” of rights (constitutionally and legally speaking) in order to maintain security, public order and stability of State institutions, it should be noted that, in the decision of any government to decree a state of emergency and suspend the exercise of certain rights to a certain extent and circumstances, there is a clear space of discretion that could lead to arbitrariness.
And that is why, on the occasion of the global crisis caused by the COVID-19 pandemic, the United Nations High Commissioner for Human Rights, Michelle Bachelet, recently indicated 3 that the implementation of exceptional or emergency measures to Protecting the population from the Coronavirus pandemic should not be used by governments as an excuse to violate people’s human rights. And to assist States in their response to the pandemic, the Office of the High Commissioner published an “orientation manual” 4 on the adoption of urgent and exceptional measures, in which it was established that the restriction of rights should respect, as a minimum, the following principles or requirements, which are in accordance with the principles and doctrine of International Human Rights Law:
The restrictions must be contained in a law, which in turn must be: of general application, reasonable, clear and accessible to the entire population.
Restrictions must be adopted only for the time strictly necessary to return to “normality”, that is, until the reestablishment of the established order or that of a new order, if applicable. In other words, a state of emergency must always be decreed with a view to returning the restricted rights to full effect as soon as possible and cannot be extended beyond what is strictly necessary.
It supposes that the restriction or limitation of the right is the “only” effective means to protect the protected legal asset and, therefore, to avoid more serious damages. It must therefore be a measure of last resort for governments in the understanding that there is no other measure that is equally effective in achieving the desired objective and that, in turn, has a lesser impact on human rights.
Related to this requirement is also the “severity” of the emergency. The restriction of rights is a necessary measure because the “seriousness” of the emergency warrants it. Not just any emergency can then be classified by a government as a candidate for a measure of this type. It is said a government may opt for the suspension of guarantees, when the severity of the emergency is such that it could endanger the very existence of the State.
4. Proportionality (within which “reasonableness” is embedded):
The restriction must be equivalent to the danger or harm that is to be avoided and, therefore, it must be appropriate to achieve the desired objective. Within all the types or degrees of restrictions that are presented as an effective option by governments to achieve the desired objective, the restriction that turns out to be the least invasive of fundamental rights must always be chosen.
No restriction should imply discrimination based on race, color, sex, sexual orientation and gender identity, disability, language, religion, political opinion, national or social origin, property or birth, among others. Suspension or restriction measures must respond only to criteria related to the degree or magnitude of the emergency. In other words, it can be said that the measures for the suspension of rights must be adopted with objectivity and impartiality with regard to their addressees.
6. In case of doubt, the right will always be favored:
All limitations or restrictions must be interpreted strictly and in favor of the affected right and no limitation can be applied arbitrarily. As the restriction of the right is not the rule, but the exception, it should be understood that all that manifestation, aspect or facet of a right that is not expressly limited, remains in force and thus must be respected by state authorities.
7. What must be justified or reasoned is the limitation of the right, not its exercise:
It is the government authorities who have the burden of justifying the restrictions on rights and it is not the citizens who have the burden of justifying the exercise of them. In other words, that right that is not restricted during a state of emergency must be understood to be in force in all its manifestations. To make the suspension of certain rights effective and legitimate, said restriction must be fully and clearly justified by the authorities.
8. Safeguard clause:
Any restriction of rights must always be established with a view to returning to the normal or natural validity of the right as soon as possible and, consequently, the restriction of rights must be subject to a constant review of its need for the duration of the state of emergency.
It may be that, at some point, the emergency situation continues, but the restriction of the right is no longer necessary, proportionate or reasonable to achieve the desired objective, in which case, maintaining the restriction would be totally illegitimate and arbitrary.
9. Non-derogable rights :
It is a general principle of Law that some rights such as the right to life, the free expression of thought, the prohibition of torture and the principle of legality in criminal matters cannot be derogated, even during states of emergency and, therefore, Therefore, they must remain valid in all situations, regardless of their severity.
10. Timely, clear, transparent and accessible communication:
The authorities must inform at all times to the population affected by the restriction of rights, the exact substantive, territorial and temporal scope of the state of emergency and of all the governmental measures that are related to it in order to conduct themselves accordingly.
11. Continuity of the institutions:
During a state of emergency, States are obliged, more than ever, to continue working and joining forces, continuously and permanently, to return to normalcy as soon as possible. Thus, the existence of a state of emergency does not imply, from any point of view, the “suspension” of the functions of the institutions and dependencies of the State.
Although it is true that certain emergency situations, such as pandemics, represent a serious risk to the health of those who work in public institutions and agencies, it is necessary that, as far as possible and taking all measures of care and necessary prevention, they do not close the public to avoid an institutional collapse that would only do more harm to the population.
And, last but not least, the author would add to this catalog the principle of:
Which implies that governments must warn or recognize that each suspension or restriction of rights imposed during a state of emergency will bring consequences and collateral effects on society, which must be contemplated in advance by the authorities to be able to plan in advance all the measures that the government must employ and dispose later to face and mitigate these “collateral” damages once the crisis or emergency has been overcome.
FINAL REFLECTION :
Based on the foregoing and by way of conclusion, it can be established that the “legitimacy” of a measure restricting the exercise of fundamental rights during a state of emergency should not be measured by the number of rights affected, nor by the type of restriction to them, but because of the existence of a “real need” for their adoption but, even more important, because of the existence of a “real intention” of the government authorities to achieve, as soon as possible, the reestablishment of order. constituted or that of a new order if necessary and, therefore, a return to the natural state of the full validity of individual freedoms.
In other words, a governmental measure of restriction or suspension of rights will be legitimate only to the extent that it is used as what it is, a legitimate tool, constitutionally provided, to safeguard fundamental rights and the rule of law at a time of crisis and not as a tool to take advantage of the circumstances and thus achieve its destruction.
1 ÁLVAREZ CONDE, Enrique, “The Constitutional Law and the Crisis” , Journal of Political Law UNED, No. 88, September-December, 2013, pp 83-122. Available at: http://e-spacio.uned.es/fez/eserv/bibliuned:DerechoPolitico-2013-88-1010/Documento.pdf
2 TORRES, FEDERICO, “Public Law Congress for students and young graduates.
“Democracy and Rights. Carl Schmitt and Giorgio Agamben. Adventures and misadventures of the
exception. ”, Available at: http://www.derecho.uba.ar/institucional/deinteres/teoria-del-estado-federico-torres.pdf
3 UN News, ” The coronavirus health emergency cannot limit human rights” , available at: https://news.un.org/es/story/2020/04/1473482
4 United Nations Human Rights, Office of the High Commisssioner, “Emergency Measures and Covid 19: Guidance”, available at: https://www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf