Human Rights in Emergency Contexts

Even in the midst of a pandemic, the concentration of power, suspension or restriction of rights cannot be unlimited.

By Celia Medrano (*)

The Covid-19 has taken a while to activate alarm systems on this side of the world and, although we should have seen ourselves in the mirror of China, Italy or Spain, our governments were not able to articulate preventive actions in a joint and coordinated manner; which, in reality, was surely too much to ask in Latin America. What happens now is that each one, within his own “kingdom” has taken some preventive and some reactive measures according to his own speeches.

In Central America, this has not been an exception. In Honduras, President Juan Orlando Hernández decreed an absolute curfew since March 16 in the face of 8 confirmed cases. In Guatemala, President Alejandro Giammattei announced the closure of borders and declared a State of Public Calamity for 30 days, and in Nicaragua, no measure is yet to be known. On the contrary, the presidential couple, Daniel Ortega and Rosario Murillo, have called two public gatherings from the government, in contravention of one of the basic preventive measures against the coronavirus, social distancing.

In El Salvador, the Parliament approved two instruments: Decree No. 593 of National Emergency and Decree No. 594. State of Restriction. Officially, the Salvadoran government has only recognized three confirmed cases. Since then five unconstitutionality lawsuits filed by different actors against the Legislative Decree No. 594, the Salvadoran Supreme Court of Justice, admitted three of them this week. No one filed an appeal against the National Emergency Decree unanimously approved in the Parliament, an unequivocal sign that no one is against drastic and urgent actions against Covid-19.

It is not a question of not taking responsibility for the serious consequences of not taking immediate action for all. But such measures must justify their need based on evidence and comply with standards of legality and gradualness. The Syracuse Principles, an instrument adopted by the United Nations, are a guide to restricting human rights to prevent the spread of infectious diseases. In accordance with these principles, the measures taken must be backed by data and scientific evidence accessible to the public and carried out in accordance with the law, as well as operate the least restrictive required to achieve the purpose of limiting the exercise of rights and in “the measure strictly limited to the requirements of the situation.

“The requirements of the situation do not strictly require a measure when the normal measures permissible under the limitation clauses of the International Covenant on Civil and Political Rights are sufficient to deal with the threat of the life of a nation. Following these principles, all actions should be subject to periodic review and reconsideration and cannot be imposed simply for fear of possible danger. In order to determine if the derogation measures are strictly necessary given the demands of the situation, the judgment of the national authorities cannot be accepted as conclusive.

The ordinary courts will maintain their jurisdiction, even in a state of exception, to judge any complaint of a violation of a non-derogable right. Access must also be guaranteed to effective mechanisms to which people who wish to file lawsuits or appeals against the measures taken may resort, as well as guarantee protection against possible reprisals to those who exercise their right of expression, participation, and observance.

This global pandemic has revealed the weaknesses of public systems for the data recording and the generation of good quality information to assist in political decision making. In the “Operational Guidance Guide on the response to the worldwide epidemic of COVID-19”, the United Nations High Commissioner for Human Rights states that, in a crisis, the right to information and transparent access to it, must be a priority and the community must be included in response actions.

Celia Medrano.

We carry the unreliability of official information that causes greater uncertainty in the population that is susceptible to panic and therefore highly manipulable. For this reason, we must prevent the emergency from being exploited to concentrate power that will lead to a future democratic crisis and to prevent possible human rights violations. States cannot invoke, for example, allowed justifications to hide illegitimate objectives such as censuring political opponents or marches for human rights.

For the Special Rapporteur of the UN for the promotion and protection of human rights and fundamental freedoms in the fight against terrorism, Fionnuala Ní Aoláin, the States find the powers provided during an emergency attractive because they offer “shortcuts” for controls with the tendency to make them permanent. For the Rapporteur, “emergency or not, the States must reach the same threshold of legality, legitimacy, necessity, and proportionality for each measure taken.”

The pandemic is not just a challenge for the public health systems of our highly vulnerable countries due to systemic inequity, corruption and impunity. Social distancing quickly turns into isolation and the fragility of our democracies is further compromised. Protecting human rights in this context is inescapable, even in a national emergency, emergency regime, state of siege or any other variant. It is about preventing abuse that can come at a high cost if we allow it.

*Celia Medrano is a Salvadoran journalist who specializes in Human Rights, approach to Education for Peace and Public Management.

Originally published in Spanish: https://www.elsalvador.com/opinion/editoriales/coronavirus/698271/2020/

About Ramón Jiménez

Ramón Jiménez, Managing Editor de MetroLatinoUSA.Com (MLN). Graduado de la Escuela de Periodismo de la Universidad del Distrito de Columbia (UDC). Email: ramonjimenez169@gmail.com

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