Political rights

Civil and political rights in times of pandemic


To note: This play originally appeared in Spanish in Justicia en Las Américas. To read the original piece, click on here.

This article briefly analyzes the restriction of civil and political rights in Latin America as part of the various exceptional but justified emergency measures adopted to deal with the global COVID-19 pandemic. In writing it, I relied on excellent national notes written by my colleagues at the DPLF and some distinguished guest experts; their articles (in Spanish), appear via links at the end of this article.

Before I get into the subject, allow me the following reflection: The COVID-19 pandemic and restrictive measures adopted across Latin America have increased insecurity, suffering and hunger for millions of people across the country. region. While restrictions on free transportation, freedom to work, and freedom of assembly, among others, are legitimate, given that social distancing is the only weapon against this virus, we must be aware that millions of people in Latin America survive thanks to their work in the informal sector. It is unacceptable that for many the only options during this pandemic are to be killed by hunger or by COVID-19. For this reason, following this emergency, the region must resume a debate on the relevance of a social or welfare state, without corruption, which can provide basic public services including health care.

Almost every government in Latin America except Nicaragua has taken exceptional steps to stop the uncontrollable spread of COVID-19, whether by declaring states of emergency or public health emergencies. In the face of this, there is a well-founded fear and suspicion that these measures could exacerbate abuses of power or increase human rights violations. This distrust is understandable, given the continent’s terrible history of civil and military dictatorships using the state of emergency to persecute political opponents and social leaders, and of regimes which, through the abdication of ordinary justice – and the preponderant role of military courts – have been able to commit serious human rights violations and acts of grand corruption with impunity.

This fear and mistrust is also understandable when confronted with the style of government and the narratives of some presidents currently in power. This is the case in the United States with Donald Trump; in Brazil with Jair Bolsonaro; and in El Salvador with Nayib Bukele. In the latter case, the Salvadoran president already has the appalling balance sheet to take over the chambers of the country’s Legislative Assembly, with the help of the armed forces, to intimidate lawmakers and pressure them to approve a loan to fight crime.

On the other hand, all democratic legal frameworks in the region consider constitutional exceptions to unforeseen or emergency situations, including natural disasters, wars, major social unrest and epidemics. In such cases, among other possible consequences, the executive may be given exceptional powers which allow for the restriction of fundamental rights in matters of security, public budgets, public health measures, market regulation and control. borders, among others. The executive is also endowed with special powers with regard to the armed forces and the police.

As a counterweight to these constitutionally conferred executive powers, national legislatures also generally hold various types of parliamentary political control: from obligations to be duly informed to approval by a posteriori Where ex ante states of exception. Another key counterweight is undoubtedly freedom of expression, press and information, none of which is on the list of fundamental rights that can be restricted or suspended during states of emergency. The media and social networks are essential to make visible and denounce possible abuses of power. It is precisely for this reason that some authoritarian leaders, such as Bolsonaro in Brazil or Daniel Ortega in Nicaragua, have restricted – or attempted to restrict – these freedoms.

Another essential counterweight to these executive powers is a more recent democratic achievement in Latin America: judicial controls – which can now be exercised in most countries in the region – over the actions of law enforcement agencies, as well as measures adopted by governments which, even in a state of emergency, may be unconstitutional or constitute a violation of international human rights standards.

This is the case in Brazil, where the country’s Federal Supreme Court overturned a recent presidential decree that limited access to public information, and issued a precautionary measure ordering the Bolsonaro administration to clarify the measures taken by the federal government to comply with COVID-19. prevention and mitigation measures recommended by the World Health Organization (WHO). This was also the case in El Salvador, where the Constitutional Chamber of the Supreme Court issued resolution 148-2020, granting precautionary measures in favor of people who had been detained in “containment centers” under the mandatory quarantine. from the country. The precautionary measures ordered, among other things, that some of those detained be allowed to carry out quarantine in their residences, while respecting certain health protocols.

Without a doubt, another advance in the judicial landscape of Latin America, among other advances in human rights and democratization, is the narrowing of military jurisdiction to include only crimes committed within the framework of military work and by members of the armed forces. This has been one of the most important contributions of the inter-American human rights system to strengthening the rule of law in Latin America.

However, these checks and balances to the exceptional powers invoked to deal with this pandemic have the potential to be seriously weakened in the face of authoritarian rulers like those in Brazil and El Salvador; or in the face of networks of corruption, such as those denounced in Guatemala. Or, quite simply, they could be canceled by dictatorial regimes like those in Venezuela or Nicaragua. For these reasons, in the context of authoritarian regimes such as those found in Latin America, the conduct, attitude and speech of some political leaders have the potential to manipulate these exceptional powers and take advantage of them to persecute. or harass political and social opposition. , generate greater corruption through the relaxation of controls on public spending, attack independent journalists and / or deny access to public information. Or, as is the case with President Andrés López Obrador in Mexico, Jair Bolsonaro in Brazil and Donald Trump in the United States, irresponsibly deny, on behalf of the federal government, the seriousness of this pandemic and of encourage citizens to violate WHO recommendations for social isolation. In some cases, some executive powers have even opposed measures adopted by individual states and in so doing have created unnecessary clashes between the federal and state governments.

As for the restriction of political rights, it does not seem to be part of the constitutional rules, even in the current context, with the exception of Bolivia: the legislative elections initially scheduled for May 3 have been suspended, and should take place between July and September of this year. This postponement is particularly worrying in a country where these elections are crucial for the return to democratic normality. In contrast, in the cases of Venezuela and Nicaragua, there continue to be serious violations of fundamental rights, including political rights, which have only been exacerbated by the pandemic. In addition, the Ortega government has not adopted any containment measures to stop the spread of the virus.

Another concern is the possibility that political leaders and public officials – civilian or military – may see this public health emergency, in which certain expansions of power are granted to them, as an opportunity to hijack said power and commit serious crimes. acts of corruption. As pointed out by the Inter-American Commission on Human Rights (IACHR) in its report “Corruption and human rights”, corruption has a “multidimensional impact… on democracy, the rule of law, and in particular the enjoyment and exercise of human rights on the continent”.

In this sense, the situation in Guatemala is particularly worrying. Particularly alarming is one of the emergency measures adopted by the government which open a line of credit which “will be granted without restriction to politically exposed persons”, which could benefit ministers, deputies or leaders of political parties, and does not appear to serve to alleviate the economic difficulties facing the poorest sectors. There is also cause for concern in the case of Mexico, where, unfortunately, there remains a high risk that authorities and individuals will take advantage of the public health emergency to make illegal use of the additional resources allocated to them. . Currently, the federal government and all state governments have access to funds with looser restrictions, reduced controls, and broad discretion in spending decisions, all against a backdrop of weak institutionalization and little transparency.

In addition, in some countries such as Colombia, civil society organizations have warned of the particular vulnerability of people deprived of their liberty in the context of the pandemic, given the precariousness of the prison infrastructure. On March 21, protests and riots broke out in various prisons across the country, killing 23 inmates.

Finally, we must also remain vigilant on certain “cyber-security” measures adopted by certain governments. In Ecuador, for example, the government issued Executive Decree No. 1017, authorizing the use of “mobile telephone and satellite platforms to monitor the location of people in medical quarantine and / or in compulsory isolation, who do not comply with the established restrictions, in order to make them available to the judicial authorities and administrative “.

In response to the decree, the Constitutional Court of Ecuador indicated in opinion 1-20-EE / 20A the need to: “ensure that the use of these technological measures… does not serve as a means of violating the constitutional rights and applies only to individuals who have been identified by the Department of Health as in need of seclusion or other measures of a similar nature. In the same vein, international human rights organizations have issued a joint statement stressing that it is essential that the use of these technologies be limited “both in terms of purpose and duration, and that individual rights to privacy, non-discrimination, protection of source journalists and other freedoms be rigorously protected.

For more country-specific information, you can view the individual memos (in Spanish) here: