WJP board members

WJP Board Shares Local Perspectives on COVID-19 and the Rule of Law

 

As part of an ongoing series of research and analysis on the COVID-19 pandemic and its effects on the rule of law, the World Justice Project asked several of our board members from around the world to share their views on how the crisis is affecting their countries' experience with key elements of the rule of law, such as corruption, executive powers, and access to justice. The following responses were received from: Ellen Gracie Northfleet, former President of the Supreme Court of Brazil; Kamel Ayadi, Minister to the Head of the State of Tunisia; James R. Silkenat, former President, American Bar Association (United States); and Shaikha al-Misnad, former President, Qatar University.

 

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What are your main concerns regarding the impact of the global pandemic on public health and respect for the rule of law in your country?

 

Kamel Ayadi (Tunisia):

Tunisia is managing the pandemic relatively well. Given its limited health care resources, Tunisia had no choice but to concentrate its effort on prevention measures. The country has adopted tough measures from the beginning, even before the occurrence of the first infection. This strategy has proven to be efficient. Tunisia was able to slow down quickly the level of daily infection to an average of four cases per day.

However, these achievements have been made at the cost of economic and social concessions, in addition to other sacrifices related to rule of law, liberty, transparency, and freedom of expression. I would mention three major concerns which have arisen from the adopted measures.

First, on executive powers, Tunisia's parliament voted in favor of granting special powers to the Head of the Government for two months to allow the executive to issue special decree-laws to combat the spread of the pandemic without referring them to the legislature. This vote was done under public opinion pressure, despite strong reluctance by some political parties and parliamentarians. They expressed major concerns that the flexibility given to the executive may open the door to new forms of abuse of power. 

Second, we must contend with a lack of transparency in public procurement. The Anticorruption Commission has blamed the government for abusing the urgency argument to suspend compliance with procedures that are designed to ensure transparency and equity in public tendering. And third, some media have expressed concerns about limited information in the government's crisis management. Official communications about the crisis during the first days of the spread of the virus lacked clarity with speeches and press conferences by the government often delayed, rescheduled, or cancelled.

 

Ellen Gracie Northfleet (Brazil):

Brazil is a latecomer to the pandemic and yet has not taken advantage of this circumstance to guide the necessary health policies by the best practices of some other countries that have been hit by the virus and managed to control its dissemination.

To complicate matters, we are entangled in a very difficult political situation, where the President remains in strong denial of the threat represented by the disease and repeatedly disregards, or to put it better, discredits the public health authorities, including the World Health Organization (WHO). He sacked a very good Health Minister because this well-respected doctor would not agree with the President's insistence in rejecting social distancing, a measure that is up to now the only known way to avoid contagion. The substitute is a pitiful shadow that up to now has done nothing effective and officials remain extremely careful not to cross the President.

 

James Silkenat (United States):

Before the recent widespread public protests associated with the killing of George Floyd in Minneapolis, the overriding concerns in the United States were health-related. There were some local protests arguing that the health restrictions were onerous, but they were in the distinct minority. The top priority concerns in the U.S. with regard to the pandemic and the rule of law have not been insignificant, however. They are whether: a) the pandemic will be used as an excuse by both federal and state governments to extend certain restrictions, for political reasons, beyond the time when they would be medically necessary; b) national, state, and local elections will be affected by the pandemic; c) meaningful economic collapse, particularly of small businesses, will engender wide disrespect for the rule of law; and d) financial support programs will be available equally to all applicants (there is preliminary evidence that such support is less available to minorities).

The 'other pandemic' in the United States, related to racial justice, has shifted many attitudes in the country, including a new focus on racial inequities relating to health issues, such as much higher COVID-19 infections for Black and Hispanic communities. This has undercut respect for many public institutions, but engendered a renewed awareness of the need for greater accountability and the rule of law.

 

Shaikha al-Misnad (Qatar):

The COVID-19 pandemic has affected the entire world, from the richest and most advanced countries to the poorest and least developed. In a humbling manner this virus has unified all humans regardless of race, gender, or socio-economic status.  

In a small country like Qatar, with strong economic resources, a free high quality health system and a relatively lower population density, it was possible to face the pandemic in a very efficient manner. The health authorities adopted all necessary measures to limit the spread of the virus; allocated new resources to provide needed hospitals beds, medicine, and testing; and enforced a strong public awareness campaign for social distancing and closing non-essential commercial activities. A substantial budget was also provided to ease the economic hardship for businesses. 

It is too early to say whether the pandemic has impacted the rule of law in Qatar. All of the energy and attention of government officials and citizens has been focused on the health issues. 

The major impact of the crisis is in the economic sector; public and private businesses are going through difficult times, especially the small and medium-sized businesses, despite the government's continuous efforts to financially ease this economic hardship.

 

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What effects are emergency laws and decrees in your country having on the functioning of the legislature, the courts, and other rule of law institutions? Do you see evidence of authoritarian behavior? If so, what are they?

 

Kamel Ayadi (Tunisia):

The High Judiciary Council (HJC) of Tunisia recently has issued a press release rejecting the last decree-law issued by the government regarding the end of general containment and the beginning of the targeted containment management. The HJC considered this decree-law a dangerous drift towards continuous interference in the management of the judiciary. 

However, and despite legitimate concerns raised by media and NGOs about lack of transparency and the use of coercive methods to enforce the economic and social measures associated with containment, it is premature to consider these behaviors as the beginning of an authoritarian trend.

 

Ellen Gracie Northfleet (Brazil):

Despite rising numbers of cases and deaths (over 800,000 and 41,000, respectively, as of June 11, 2020), the President refuses to coordinate with the states' governors, among whom he sees some of his possible rivals for reelection. Some mayors and governors have already opted for a lockdown, while the federal government recently authorized hair salons and gyms to reopen. This could be just another instance of lack of coordination, had not the Supreme Court ruled that the power to determine what should be open during the pandemic belongs to the cities and states, not the federal government.

 

James Silkenat (United States):

In the United States, most courts are now functioning with some level of remote hearings and trials. This is difficult, but proving workable, although many less pressing cases are being substantially delayed. Legislatures, both nationally and locally, are functioning only at the margin and have focused primarily on economic recovery measures. Authoritarian behavior by state governments, at least as with regard to health issues, is not a major factor. However, there has been a small but vocal minority of the population that is escalating its complaint that governments should reopen the economy and restore social interaction. This attitude has grown as the economic restrictions have continued over time. These concerns have been largely overshadowed now because of police violence concerns and the decision of the current administration in Washington to deploy military troops to deal with racial inequality protests.

 

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What measures are being taken, or should be taken, to address the heightened risk of corruption and fraud engendered by the crisis?

 

Kamel Ayadi (Tunisia):

The risk of corruption is a major concern, as the suspension of regular procedures designed to reduce that risk and abuse of urgency argument may create the appropriate conditions for fraud and other forms of corruption. Among the measures that could address this risk, one can mention the following:

  • Empower the institutions dedicated to addressing corruption, such as anti-corruption agencies, audit and control entities, inspectorates, NGOS, etc.
  • Reinforce posteriori controls and audits when prior control and prevention procedures cannot be implemented because of the emergency. Sanctions should be increased if lack of compliance to rules appears to be motivated by private gains.
  • Encourage whistleblowing and citizen participation to denounce and share information about corruption cases. The Tunisian anticorruption agency has launched an electronic platform to encourage citizens to report corruption cases. Already this process has revealed a special case of corruption committed by a member of the government who influenced the awarding process of a public tender in favor of a parliamentarian. The anti-corruption agency has undertaken an inquiry after an alert issued by a citizen and the government was obliged to cancel the call for tender as a result of public opinion pressure.

 

Ellen Gracie Northfleet (Brazil):

Brazil has a universal health care system that works fairly well in normal situations, but has been completely overwhelmed by the new demands of the pandemic. There are not enough hospital rooms, especially not for intensive treatment. Ventilators that are necessary to keep alive a good percentage of the patients are in high demand. Some medical equipment bought in China was diverted during the long haul in various connecting airports due to vendors breaking contracts for better offers elsewhere.

 

James Silkenat (United States):

Corruption and fraud in creating and implementing various economic relief programs in the US can be addressed by vigorous legislative oversight and the creation of independent inspectors to make sure that funding is not misused or is not directed for political purposes. These relief programs in the US are too new to know whether fraud and abuse will be widespread, but the resistance by the current administration to independent oversight indicates that trouble may lie ahead.

 

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What are the most important effects of the pandemic, and the response to it, on the exercise of fundamental rights in your country?

 

Kamel Ayadi (Tunisia):

The major effect of the pandemic relates to the loss of employment and income for vulnerable citizens. Some people suffer mentally from being prevented to enjoy their spiritual rights since they cannot pray in mosques especially during the holy month. Lack of access to justice is also a concern for those who are in disputes and who need to recover their rights. Some citizens who want to reopen their businesses face arbitrary measures and behaviors in obtaining the necessary permissions from officials.

 

James Silkenat (United States):

Health-based restrictions on fundamental rights like freedom of movement vary by location across the country in the U.S., typically on a state-by-state basis. Some states have no restrictions. Others have removed some or all restrictions and in some states restrictions may remain in place for at least part of the summer. These differences frequently relate to the level of COVID infections in a particular area. Restrictions typically relate to what businesses are allowed to open; social distancing of individuals; cancellation of social, cultural and sporting events; and in some cases travel restrictions. In some cases, the restrictions are advisory and in some cases compulsory, with fines or jail time involved for flagrant violations (although this is rare). At the national level, new travel and immigration restrictions are sometimes considered to have a political subtext.  

Another concern relates to political rights and how the November 2020 elections will be conducted. Will campaign activities and political assembly be seriously affected by the pandemic? There is already some evidence that this is taking place and might affect political outcomes in the fall. Finally, the rights of prisoners have been put in jeopardy in some states because of the health risks associated with the close physical contact existing in most prison facilities.

 

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What measures are being taken, or should be taken, to address the growing gap in access to justice, particularly as economic and social conditions deteriorate in your country?

 

Kamel Ayadi (Tunisia):

Following the suspension of judicial activities due to containment measures, judicial activity has been limited. Under the current circumstances, the judicial authority, which is supposed to ensure the supremacy of the constitution and the protection of human rights, appears to be side-lined in certain areas.

An example of violations could be given with regard to persons suspected of being infected whose hospitalization decisions should be issued normally by a judicial authority. Another example is the illegal confiscation of vehicles circulating in violation of the curfew. To ensure citizens' rights and equality before the law are not unnecessarily impaired during the emergency, the Supreme Judicial Council has proposed a bill on exceptional provisions to ensure that procedural time limits do not harm citizens unable to meet them.

 

Ellen Gracie Northfleet (Brazil):

Unfortunately it seems that the death toll will continue to rise as we enter our winter season in Brazil, when people stay at home in overcrowded slums. Social disparity is another factor that accrues to this grim perspective. Even one of the positive initiatives of the government, to distribute a small sum (little more than US$ 100) for the next three months to the extremely needy, resulted in extensive queues stretching down the streets near the official bank in charge of the distribution, thus augmenting the chances for contagion.

 

James Silkenat (United States):

Access to justice issues have long been a serious problem in the U.S. The pandemic has exacerbated that problem, with even greater burdens falling on minorities and the economically disadvantaged. Funding for most legal assistance groups across the country is woefully inadequate and increasingly dire prospects for employment, housing, and food resources will make that funding even more crucial.

The Legal Services Corporation, a national entity, has, however, continued to receive congressional funding despite the efforts of the current administration to defund it. On the voluntary side of things, many bar associations, community groups, law firms, and philanthropic entities have stepped forward to address the current problem. This, however, while vitally important, is not sufficient. The best answer, although unlikely in the current situation, is greater national funding for all types of legal assistance to disadvantaged groups and individuals.

 

Shaikha al-Misnad (Qatar):

The main impact in Qatar is the rising rate of unemployment especially among the expatriate population due to economic conditions. This might lead to legal issues in terms of contracts payments, for example, to what extent salaries will be paid during the lockdown of a business. For business owners, how will they continue to pay rent when their stores are closed by order of the government? Filing lawsuits is not effective since they are linked to the state judicial system which will require time for cases to be resolved, especially since court hearings are suspended due to the pandemic and until the lockdown is lifted. 

There is a great expectation that this pandemic will be a wake up call for all humankind, and inspire a shift in perspective and behavior in dealing with fellow humans. The world will become a more tolerant, peaceful, and just place, but when we reflect on human history, unfortunately, we have a short memory.

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