The impact of COVID-19 and the role of Parliaments in responding to national disasters
It is a great honour and privilege to address the Parliamentary Clerks of SADC Parliaments on a matter of grave importance: the impact of COVID-19 pandemic and the role of Parliaments in responding to national disasters. History teaches that humanity has always been plagued by disasters and Covid-19 is most certainly not the last. It is therefore important to reflect on the role of Parliaments in responding to disasters using COVID-19 merely as a spring board, for present purposes.
In my considered view the duty of Parliamentary Clerks is to assist Parliament, its officers and members, to fulfill their constitutional and representative functions by rendering non-partisan, enlightened and authoritative procedural advice and guidance. If this departure point is true then it behooves the Clerks to understand the broad impact of COVID-19 on our societies and the role of Parliaments in responding to national disasters. As we all know Parliaments’ primary constitutional duty is to pass laws. It is for this reason that my presentation will focus on the legislative function in responding to disasters by giving a broad synopsis of what ought to be done.
COVID-19 is upon us. Many of us have lost relatives and loved ones – and know many other people who have been infected. The numbers are increasing every day. It is a living reality. It has brought the world into a state of chaos, uncertainty and fear. The primary locus of the chaos has been in public health and the economy, but it has also caused chaos with our systems of law-making. The severity of the crisis has left exposed for all to see the strengths and weaknesses of our legislatures and legislative procedures. The bad examples are magnified – knee-jerk legal reactions, executive dominance, lack of Parliamentary oversight, poor democratic input, populist rather than effective laws, ignorance of science and a general disregard for the proper constitutional order. This is evident across our region in varying degrees.
What may explain the variance is the democratic culture or absence thereof – including fidelity to the rule of law. In times of national crisis we need the rule of law most – a legislative branch that does not forego its oversight role.
At the same time, some Parliaments have conducted themselves very well – even with distinction. Parliaments in several countries, especially in stable democracies, continued to operate throughout the pandemic, and continued to perform their lawmaking and oversight roles. Many legislatures have proven their resilience as well as their ability to adapt. Some Parliaments are meeting virtually – which in itself is an important step in fighting the pandemic. In some member states of SADC the courts have set aside lockdown measures as irrational and unreasonable – and the executives in those countries, to their credit, have obeyed the decisions of the courts.
As the world grapples with the unprecedented Covid-19 crisis many people and governments across the globe found themselves in many difficult and peculiar situations in efforts to contain the situation. The responses by many governments had potentially far-reaching consequences for economies, social and political lives. The priority was to save lives. Given the overwhelming imperative to preserve life, many countries had no choice but to adopt extraordinary measures. Extensive lock-downs were adopted to slow down the rates of transmission of the virus. Some countries considered state of emergencies necessary to effectively deal with the pandemic.
Several fundamental rights were impacted and restricted such as the right to freedom of movement and many other human rights in the process. As the Secretary General of the United Nations noted in his policy brief of April 2020, human rights are key in shaping the pandemic response, both for the public health emergency and the broader impact on people’s lives and livelihoods. Human rights put people at the center-stage. Responses that are shaped by and respect human rights result in better outcomes in beating the pandemic, ensuring healthcare for everyone and preserving human dignity.
Human rights
Under international human rights law, which most countries have adopted, everyone has the right to “the highest attainable standard of physical and mental health”. Governments are quite plainly obligated to take effective steps for the “prevention, treatment and control of the pandemic, occupational and other diseases”. International human rights law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it. Human rights law also recognizes that in the context of serious public health threats and public emergencies threatening the life of the nation restrictions on some rights can be justified when they have a legal basis, are reasonably justifiable in a democratic society, based on scientific evidence and neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective.
COVID-19 immediately impacts on the right to life and dignity, which are the most important rights, as all other rights arise therefrom. It also impacts on the right to health. There can therefore be no doubt that COVID-19, its scale and severity, justify restrictions on certain rights, such as those that result from the imposition of quarantine or isolation limiting freedom of movement.
The right to health requires that health facilities, goods, and services should be:
● Available in sufficient quantity,
● Accessible to everyone without discrimination, and affordable for all, even marginalized groups;
● Acceptable, meaning respectful of medical ethics and culturally appropriate; and
● Scientifically and medically appropriate and of good quality.
The Siracusa Principles adopted by the UN Economic and Social Council in 1984, and UN Human Rights Committee general comments on state of emergencies and freedom of movement, permit governments to restrict rights in so far as such restrictions may be necessary or reasonably justifiable in a democratic society.It is particularly important that a state of emergency, if required, need to be limited in duration and any curtailment of rights needs to take into consideration the disproportionate impact on specific populations or marginalized groups. And state of emergencies should not be abused to target particular groups, minorities, or individuals. It should not be used as an excuse for repressive action under the guise of protecting health and should not be used simply to suffocate dissent.
The Siracusa Principles, I have made reference to above, specifically state that restrictions should, at a minimum, be:
● Provided for and carried out in accordance with the law;
● Directed toward a legitimate objective of general interest;
● Strictly necessary in a democratic society to achieve the objective;
● The least intrusive and restrictive available to reach the objective;
● Based on scientific evidence and neither arbitrary nor discriminatory in application; and
● Of limited duration, respectful of human dignity, and subject to review.
● In a number of countries, governments have failed to uphold the right to freedom of expression, taking actions against journalists and protestors in a manner that is highhanded, disproportionate and plainly unlawful. Many countries have resorted to quarantines, lockdowns of varying severity and travel banns in an attempt to contain the pandemic. There is nothing wrong in principle against such measures.
Each country must take measures as best suit its circumstances to fight the pandemic.
Governments should ensure that quarantines and lockdowns of indeterminate length are avoided as they rarely meet the required criteria articulated above. The people are generally entitled to know what government is planning to do for them and the basis of their analysis so that they may input into the national plan. Most governments, especially in Africa, and other developing countries, do not avail sufficient information to the public beyond the statistics. It must be noted that some governments implemented emergency measures (Covid-19 regulations) in good faith which had unforeseen or unintended consequences for people’s rights. Some however may be said to have weaponised the pandemic and used emergency measures to deliberately target certain groups and repress citizens’ rights intentionally. In both instances, it is important to ensure that these were done in a lawfully manner - based on the law which should be publicly available to all citizens and that there should be opportunities for these regulations to be challenged if they are not based in the law.
Legislatures around the region have been challenged by Covid – 19 pandemic. They had to adapt in order to remain effective and relevant. A number of parliaments now hold their proceedings virtually. Questions have arisen about parliaments’ role in combating Covid-19, and their relationship with the executive and other state actors. In many countries, there are specific ways that emergency powers might be activated or drawn upon. These are usually provided for in the constitutional, executive and legislative arrangements, and may, for example, enable access to certain powers when an “emergency” is declared. These emergency powers tend to be implemented through urgent procedures. This can override or curtail normal procedures for passing laws (for example they can be done in a much quicker time with less scrutiny). While these emergency procedures exist to allow governments to deal with extraordinary events, they can only be used when a situation rises to the level of an emergency, and create requirements for a government to show that the emergency laws and policies are reasonable and justified to achieve their goals. An emergency should not relieve the government of this burden to prove it meets these standards.
It is also important to keep in mind that it is not only domestic law that regulates what governments can and cannot do in emergencies such as the Covid-19 pandemic, international law is also relevant. Human rights treaties recognise explicitly that, for some rights, national emergencies may justify “derogation” – which is a process where a State declares that, because of an emergency or very serious threat, it cannot uphold some of its human rights obligations. But to do this, just like in domestic law, there are specific steps that a State must take – including explaining carefully what obligations it is not going to be upholding, why, and for how long .
A derogation provides an important process for oversight and international scrutiny, requiring the State to give clear and specific reasons about the necessity of its derogation and providing an opportunity for other branches of government such as (parliament and or the judiciary and international organisations like the UN as well as the bodies created to monitor compliance with treaty obligations and other states that are signatories to the treaty) to scrutinise those reasons.
However, it should also be noted that certain powers cannot be derogated from, even in times of emergency, such as the prohibition on deprivation of life and the prohibition against cruel inhumane and degrading treatment. These protections can never be derogated from, no matter what the emergency is.The following guidelines in legislating for public emergencies must always be kept in mind and it may be helpful now or in the future for Parliamentary Clerks to take note of them.
Guidelines on state of emergencies
Has there been a state of emergency declared? Have any emergency-related laws, measures and policies been published and are they available for the public to access?
The state(s) must declare the state of emergency to invoke its powers, it must also ensure that all the emergency laws and policies are publicly available and easily accessible to the general citizens. All public emergency related laws and regulations must be publicly available and easily accessible to all citizens or persons.
What is the legal basis for the State to declare a state of emergency (constitutional, legislative, executive discretion)?
There must be a legal basis for the state to declare a state of emergency, in other words, there must be a provision (Constitutionally, legislatively or through executive discretion that empowers the state to declare a state of emergency and allow it to pass emergency regulations such as the Covid-19 regulations and the deployment of security forces.
Has the appropriate procedure been adopted to invoke the state of emergency? Has this process been made public? If not, why not?
National disaster laws and regulations, like all emergency laws, must follow appropriate procedures in order for them to be legally binding, if for an example, the executive is required to inform parliament of its intention to declare a state of emergency and it does not do so, the laws invoked will not be legally binding. Further, the process must also be done publicly unless there are compelling reasons not to and the state must provide such reasons.
If there is a fixed process to declare an emergency, has that been used? Or has the emergency been “named” as such, but ordinary laws have been used?
If ordinary measures have been used, are the restrictions on rights they create lawful?
All restrictions on rights must be legally permissible, in that there must be a justifiable sound legal reason to limit the citizens’ rights. The national disaster or emergency regulations should satisfy the normal test, being: that the limitation is necessary, proportional and non-discriminatory in nature. For example, a provision or regulation that will only limit the rights of a certain religious group will be unlawful.
If a state of emergency has been declared, the question often arises whether the government also entered a derogation from its international human rights treaty obligations to the extent permissible? If not, why not?