Human Rights and Emergency Powers. Reflections by Bill Sundhu.
COVID-19 has reached almost every country in the world. Politicians may be tempted to use extraordinary powers. It is necessary for governments to counter the spread of COVID-19, which is itself a human rights responsibility. Governments must protect rights to health and life.
Human rights were designed for hard and exceptional times and to protect the vulnerable and prevent abuses. They are hard fought rights that arose in the aftermath of the ashes of WWII and crimes that shocked the conscience of humanity.
In my country of Canada, already some politicians have been quick to urge invoking the Emergencies Act. Thus far, the Federal government to it’s credit has resisted the temptation, although the opposition parties had to forstall a hidden provision in a financial relief bill that would have given the Liberals unlimited discretion in spending authority to the end of 2021 and enormous unchecked political advantage – usurping a fundamental role of parliament.
To invoke emergency powers, international human rights law puts the onus on a state to demonstrate:
1. existence of compelling circumstances and state interest;
2. necessity, reasonableness, proportionality, and temporary use;
3. having exhausted less restrictive and alternative measures;
5. ensuring and protecting core minimum rights;
6. participation of individuals and affected groups in the decision-making process.
Limitations on rights must include being “determined by law” and “solely for the purpose of promoting the general welfare in a democratic society.”1
On March 16, 2020, the UN Office of the High Commissioner for Human Rights urged all states to “avoid overreach of security measures in their response to the coronavirus outbreak and reminded them that emergency powers should not be used to quash dissent.” Authoritarian leaders such as Victor Orban of Hungary and Duterte of the Phillipines have used the pandemic as a cover to further erode human rights and democracy. Kashmir has been under severe lockdown for months preceding coronavirus and at risk of even more severe measures. Democracies die behind closed doors. History tells us that emergencies have been used as a pretext for power grabs by authoritarians.
Canada’s Quarantine Act and provincial emergency measures, which are less restrictive and intrusive on civil liberties appear to be working and with reasonableness. However, this is accompanied by risk and concerns of domestic violence and abuse for women and children. Marginalized persons, Indigenous persons, racialized persons and minorities are at greatest risk of law enforcement abuses or societal injustice. Media reports substantiate incidents of racial discrimination and targeting of persons of Chinese descent.
The politics of Emergencies can be manipulative and tempting. Canadians have memories of then Canadian PM Pierre Trudeau invoking the War Measures of Act in response to two high-profile kidnappings in Quebec in 1970 by FLQ separatist extremists. The measures were popular with the majority of the public. And, they were excessive, infringing on rights and misused by law enforcement and some politicians. NDP Leader Tommy Douglas opposed the use of Emergency powers and paid a price in loss of popular support. History and historians, however, proved Douglas’ principled stand to be right.
At times of crisis, democracies are in need of courageous leaders; our democracies are stronger and the obligations of human rights upheld. In a letter to Thomas Jefferson in 1816, John Adams wrote, “Power must never be trusted without a check.” Public transparency, media coverage, and honest political debate ensure that any restriction on rights meets legal and human rights standards – for legitimate public health goals.
We have a duty to take care of each other, to protect human rights. Let’s keep the human in human rights, while curtailing the spread of COVID-19.
1. International Covenant on Economic, Social and Cultural Rights, Art. 4