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 suspended the right to receive public health information or criminalised the spreading of misinformation about public health. India’s (mis)reporting of the situation on the ground has been buoyed by urges to prevent ‘critical reporting’ and compounded by arrests of journalists. In Sri Lanka, there is no information concerning acquittals or convictions under the quarantine curfew provisions. In Pakistan ‘rather than recognizing the need for a more collaborative consensus-based approach to governing, the pandemic response was driven more by the battle of narratives.’ Ideological objection to lockdowns by the Prime Minister led to a ‘lives versus livelihood’ standoff between federal and provincial government as regional governments locked down their states even while the Prime Minister dismissed such lockdowns as ‘anti-poor policy propagated by the elites’. In the US, political polarisation underlines the need for evidence-based politics rather than ‘faith, authority, partisanship, or wishful thinking’, and in the hyper-partisanship of US politics, science has become a battleground.
Poor response can result in poor evaluation by the public, whereas successful management can strengthen a regime. A failing in communication, inaccurate information, or an absence of reasoning, coupled with the lack of transparency and accountability – can infect and weaken public trust. Public trust, an intangible value, is central to the most stable and effective governance and institutions. The legitimacy of government action is strongly connected with public access to information and understanding the justification of measures. However, this is not simply about access to information, or understanding, or even ‘trust’ in the science or experts advising government, but also in the larger sense of trust ‘built among citizen and between citizens and the state’.
The government’s failure to provide information on the pandemic in Kenya has provided the impetus for civil society to bridge the gap to provide a people-centred approach to responding to the pandemic. Such a move towards active community engagement (where national governance has been absent or uncoordinated) has also been seen in the Philippines where local government and communities help fill economic and social gaps in protection, and provide information on the pandemic. Such public engagement and participation has net positive benefits and should be encouraged as good practice. As evidenced by Taiwan, ‘the key to prevent tyranny in pandemic control is a transparent and responsive political process in which citizen activism is a crucial part.’
Where the epidemiological situation is rapidly changing, involving complex, context-specific and rapidly evolving policy, the possibility of the normal mechanisms of stakeholder and public engagement may seem difficult. However, wherever public debate or public consultation is lacking, there is an increased possibility of oversight, error or fault in the design of law and policy, particularly in how they can impact underrepresented groups or marginalised communities. Even where the protection of public health can justify short-term limitation of political accountability through the legislature, there must be a robust commitment to public rationality through transparent decision-making processes.
Exposing Inequity and Inequalities in Global Access to Vaccines
States are obligated to prevent and control epidemics, and the ultimate concern is that without an effective global response the pandemic will become endemic. Many have pinned their hopes on vaccines as providing a ‘return to normalcy’ by enabling the possibility of herd or population immunity. This would rely on high percentage of vaccinated population globally (estimated to be potentially ~80%). However, by 1 April 2021, ~75% of vaccines produced had been delivered to only 10 countries and only 0.1% of doses had been delivered to low-income countries. Such uneven distribution and access as well as structural problems can serve to vitiate autonomous choice to be vaccinated. Inequitable distribution can lead to vaccine-resistant strains and long-term negative global economic impact.
Geopolitical divisions and mistrust have played out as tensions in the background of ‘vaccine diplomacy’: China and the EU mutually distrust each other’s vaccines; US sanctions against Venezuela has meant it imports Russian vaccines; while Pakistan will not import directly from India it nevertheless imports Indian-produced vaccines indirectly through participation in COVAX. As Jerome Singh writes, ‘financial self-interest, fiscal considerations, geopolitics, sovereignty, governance, protectionism, and nationalism are currently dictating COVID-19 vaccine procurement at the macro level.’
At national level, we see emerging choices in the distribution of vaccines, more often reflecting economic and political policy choices rather than commitment to public health or the vulnerability of certain populations to the disease. Decisions as to the prioritisation of some groups over others have diverged across states, and even within them. The working population has been prioritised for vaccination in Indonesia, while the decision in Egypt to give free vaccines only to medical staff and economically vulnerable groups disincentives group immunity. This has since been challenged before the courts, and a positive development in response to criticism has been the opening of vaccines to those who register to be vaccinated.
Beyond this, a lack of policy hinders effective distribution. The few vaccines arriving in Ecuador were distributed with opaque criteria, with consequent accusations of abusive practices in their distribution. Similarly in Peru, scandal surrounding privileged access to vaccines led to ministerial resignations and investigation of abuse of political and economic power. Ideological objection led Brazil‘s President Bolsonaro to suspend the purchase of the CoronaVac vaccine, and there is still no national plan for vaccination. Power struggles between the federal government and the provinces compounded with a lack of ownership, responsibility and leadership again undermines effective vaccination programmes – and multiplies risk within borders and beyond them.
An emerging concern is the introduction of ‘vaccine passports’ or ‘certification’. Where the pandemic has already raised significant concerns on the use of personal data, and data sharing, the possibility of certification connects with concerns for discrimination, exclusion, and surveillance. A concern is that this will create an opportunity divide between the ‘haves’ and ‘have-nots’. Vaccination programmes can also expose existing structural weaknesses; for example, the lack of access to healthcare is a pressing reality in many states as structural discrimination can prevent access to vulnerable minorities from vaccination (e.g. the common lack of documentation among migrant workers). Vaccine hesitancy is also prevalent among minority communities, in for example the UK, due to historical experience and structural racism and discrimination.
Where there are problems with procurement, countries must continue to rely on containment and prevention, but this approach is unsustainable in the long term and can serve only to further weaken economies and deepen social and economic divides between higher income and lower income countries. A resolution, and one that must be advocated globally is based on access to healthcare, information and vaccines; and equitable solidarity between those nations which can afford vaccinations and those which cannot.
Quo Vadis? The Future of Emergencies
The pandemic has not changed systems, so much as revealed them: it has exposed both the fragility of democracies and autocracies. Political and social instability have always provided opportunity and impetus for populist and anti-democratic forces, and the furthering of authoritarian trajectories. However, and as an important caveat, it has not been the cause of such autocratisation and does not mean it is inevitable. As revealed by the divergence of Brazil and the US since the election of the Biden administration, a change of government can lead to a dramatic change of trajectory.
What then, and what next? This Symposium has critically analysed law and governance under the extreme stress of a pandemic emergency, seeking to identify good practices which may ensure not only the best public health outcomes in response to the pandemic, but also ones which ensure the health of democracies founded on the rule of law. There is always good to be found. However, the best practices, policies and frameworks for emergency response cannot easily be created during an emergency. After the storm, we will need to rebuild to better weather the next.
In preparing for the future, there are clear lessons for the reform of law and legal frameworks built on the values of the rule of law, human rights, and democracy. Active political and democratic engagement across the widest and most diverse range of society is essential to (re)build public trust in governance and institutions and their capacity to manage crisis. The pandemic has created opportunities for the consolidation of democracy and innovation in the protection of rights, as well as the opportunity to prove the resilience of democratic institutions. Where it has exposed and deepened endemic socio-economic inequalities, it has also shown us how and why they must be remedied through global efforts and worldwide solidarity.
Trust and solidarity are bedrocks of success but are hard earned – relying on commitments of the powerful and participation of the powerless.
*With thanks for the review and feedback to Alice Donald, Ciara Staunton, and Laurent Pech, and of course the editorial work of the always indefatigable Sinthiou Buszewski.