Human rights protection is particularly important for vulnerable groups of society, including elderly, children, people with disabilities, religious groups, LGBT, refugees, prisoners, women, and ethnic minorities. Such groups may face undue restrictions, discriminatory measures, or stigmatization.
Some of the groups, like elderly people and those living with HIV/AIDS, may be at greater risk of developing more severe reactions to the coronavirus than the general population due to some health issues being more prevalent in these groups. LGBT persons are at risk because of discrimination they face within health care systems, and many lack the support mechanisms that families represent in times of crisis.
“Religious groups are affected in different ways by measures to contain the pandemic. Some of the measures limit freedom of religion or belief. A pertinent question is how this right can be upheld if governments are convinced that they have to limit practices which may be seen as essential for believers?” says Ekeløve-Slydal.
While the question in itself is important, it may also have further ramifications. The way governments accommodate protection measures against the virus with international human rights can influence broader developments. Crisis measures and their implementation may respect democratic principles and human rights, or they may move state and society in authoritarian directions.
To understand why, we may consider the following example. A young Nigerian male stated in an interview with the Norwegian Public Broadcaster on 22 March, that he could not accept any infringements on his right to meet for public prayer in the Mosque. He added that he was convinced that he was fully protected by God against the virus. He did not need the government to tell him what to do and not to do.
Attitudes like that obviously constitute a problem for governments. Experts agree that in addition to hand hygiene, social distancing is essential in order to contain the spread of the virus until treatment or vaccines are available. Ban on religious gatherings is already in place in many countries.
Even if such measures are backed by solid health arguments, the way they are presented is of great importance. There are temptations that governments should avoid.
Secular governments may be tempted to prohibit religious practices it deems harmful without any consultation or efforts to fully explain them to religious groups.
Religious governments may be tempted to prohibit practices of other religions, while being overly tolerant towards practices of its own religion.
Even governments that respect freedom of religion or belief may experience that restrictions that apply to some religions, does not apply in the same way to others. Measures may be perceived as discriminatory by parts of its population even if they were not meant to be. The role of religious mass or prayer, for instance, play different role in religions. For Christian Protestants, praying in a small group, alone or even online may be a viable option, while for others praying can only take place as a ritual in large gatherings.
A pertinent question is how this right can be upheld if governments are convinced that they have to limit practices which may be seen as essential for believers?
Gunnar Ekeløve-Slydal
There is no easy way to deal with issues that result from religious practices that conflict with government efforts to minimize spread of Covid-19. There are, however, bad ways and better ways.
The better ways
World Health Organization (WHO) guidelines on mass gatherings do not recommend prohibition in all cases, but rather a thorough assessment of each case based on a set of criteria. Governments have to define their own approach, based on cultural, political, economic as well as health factors. For governments in multireligious societies, such as Nigeria, to succeed, it is essential to build trust with all groups. To do so they have to report fact-fully about the spread of the virus and effects of its measures to contain it. Importantly, they must take the time to talk to people from all groups and listen to their concerns.
Such talks should include religious leaders, whose followers may listen to their advice on mundane matters, such as protection against epidemics, as well as on spiritual matters.
These are defining features of any democratic approach to contain Covid-19. Dialogue with people, explaining the rationale behind restrictions, and seeking co-operation from an informed population is key to success.
Democratic Asian countries, which during the last 20 years have been more exposed to epidemics than Western democracies, seem to have learnt this. The WHO has suggested that other countries should learn from China, praising them for “perhaps the most ambitious, agile and aggressive disease containment effort in history”.
Some health experts, however, disagree. They maintain that Asian democracies, such as Hong Kong, Taiwan, South Korea, and Japan represent better models of epidemic containment. They also implement far-reaching measures but based on popular understanding and consent.
Besides, the image of China’s success has its own problems. The Chinese PR-machinery is working hard to frame a positive narrative of the efficacy of China’s governance model in dealing with the crisis. The propaganda says that China has been able to contain the spread of the virus and bought time for other countries to prepare, that other countries fail in their policies, and that China now is helping them out with expertise and necessary equipment.
“In reality, authorities in China were exceedingly slow in responding to the threat of the new virus. It spread for 43 days before serious responses were initiated. The news of the virus was censored, and doctors and nurses who warned against it were arrested. These failed policies may have caused the epidemic to become a pandemic, according to some researchers.”, Gunnar Ekeløve-Slydal states.
In addition, official figures from China seems to distort the image somewhat, since they omit important categories of cases. According to experts, there are numerous unreported cases, as well as a large number of asymptomatic cases that the government excludes from official statistics.
There are other reasons for countries to not copy the Chinese way. According to Chang Shan-chen, a leading Taiwanese expert on infectious diseases, “one of the most important factors in the success of our response has been transparency. … In [China’s] autocratic system, every citizen will stay at home when told so. But this is something which cannot be easily achieved in free and democratic countries.”
The difference is that authoritarian systems aim to create obedient people, while democracies depend on people being responsible.
A telling example of how people can be made responsible is the messaging by the Taiwan Central Epidemic Command Centre (CECC). On 25 March it stated that it recommends “that indoor events that are attended by more than 100 people and outdoor gatherings that are attended by more than 500 people be suspended”. It provides a set of six criteria which organizers of gatherings should apply to assess the risk of cluster infections. It underlines that “if an assessment of the nature of the gathering finds a high degree of risk, the CECC recommends that the gathering be postponed or cancelled or held in a different manner”.
The statement does not even tell people to be responsible. It only gives them a recipe on how to be.
Not all people in democracies act like responsible citizens. Sometimes recommendations are not enough. But government policies should nevertheless aim at popular consent.
Asian countries have experiences of recent epidemics (such as Sars), which have led to governments being better prepared to deal with the new coronavirus, and people being receptive to government appeals for responsible behaviour, frequently washing their hands, keeping distance and avoiding large gatherings.
People accept temporary restrictions of civil liberties because they know these are necessary to fight the spread of the virus. And they trust that they will be lifted as soon as they are not necessary. This is not something which can be taking for granted in authoritarian states.
Expansion of government power
There is another important issue at stake. In fighting Covid-19, governments seek to expand their power. They argue that normal legislative processes are too slow to deal effectively with a rapidly evolving health crisis.
In many countries, including full democracies such as Denmark, Finland and Norway, Parliaments have accepted to give their governments such extraordinary powers. There are, however, important lessons to be learned from the debates about the extent of these powers.
In Norway, the government proposal for a temporary corona law was met by extensive criticism from opposition and legal experts. The proposal included a right for the government to enact “sound and effective” measures to “limit disruptions in normal societal functions” for a period of up to six months. The measures could set aside ordinary legislation, but not violate the Constitution or the Human Rights Act.
The criticism pointed to the draft being developed without public consultation and giving too much legislative power to the government and thereby undermining principles of division of power and rule of law.
After debating the proposal, and inviting inputs from individual experts, Norway’s National Human Rights Institution, and associations of lawyers and judges, the Parliament developed a better-balanced law, which:
- Gives the government a right to adopt “sound, effective and proportionate measures necessary to limit the disruption of key societal functions” (emphasises added);
- Cannot be applied if “the purpose can be achieved through normal legislative processes in the Parliament”;
- Obliges the government to inform the Parliament immediately after adopting a measure, giving one-third of the Parliament the power to repeal the measure, and underlining that any measure can be complained to the courts;
- Limited the temporary scope of the law from six months, as proposed by the government, to only one;
- Specifies which laws that can be set aside, naming 62 laws.
The final law thus maintained the fine balance between the powers of the state. It gives the government temporary powers to deal effectively with the crisis, while also stating respect for Constitutional provisions and human rights and securing Parliament control.
The process illustrates the crucial role of Parliamentarians in safeguarding quality of laws and of legislative processes. Governments should not be granted extraordinary powers to overturn legislation without close consultation with the Parliament and civil society. The government should even in extraordinary times be controlled by courts and act within boundaries set by the Constitution.
“While the Norwegian corona law is worthy of a democracy, it would certainly not satisfy authoritarian leaders who would think that it deprives them of power to act as they wish. The corona crisis may in this way be a defining factor. Authoritarian leaders may seize the pandemic to further undermine principles of democracy and rule of law. Even in well-established democracies there is a risk that democratic principles are weakened” says Ekeløve-Slydal.
It is not surprising to see Victor Órban, the authoritarian prime minister of Hungary, wanting to drastically expand his government’s power. The Hungarian emergency law which he proposed gives him extraordinary powers to suspend laws and implement others by decree. It sidesteps the parliamentary process and gives the government the means to exercise arbitrary and unlimited power. No elections, including by-elections, local elections, or referendums can be held, as long as the law is in place. It has no sunset clause (end date).
The law also introduces two new crimes: 1) to publicize false or distorted facts that interfere with the “successful protection” of the public, and 2) to interfere with the operation of a quarantine or isolation order. The punishment is up to five years imprisonment, or up to eight years if anyone dies as a result.
A group of human rights organizations, including the Hungarian Helsinki Committee, stated strong criticism of the draft:
A carte blanche mandate for the Hungarian government with no sunset clause is not the panacea to the emergency caused by the Covid-19 virus in Hungary. We need strong rule of law safeguards and proportional and necessary emergency measures, not unlimited government rule by decree that can last beyond the actual epidemic crisis.
The opposition succeeded in postponing adoption of the law, but Órban’s government has a supermajority in the Parliament, which approved it on 30 March.
Russia has since long ago restricted civil liberties and eradicated opposition in its Parliament. The government closed its borders with China early on but has been slow in putting in place other stringent measures such as closing educational institutions, restaurants and other meeting places.
The problem it faces when dealing with the crisis is amongst others widespread lack of trust by the population. The low number of confirmed cases (1534 as of 30 March) and deaths (only nine as of 30 March) has fueled suspicions that the government is lying about the real situation and that the testing that has been conducted does not detect early stages of infection.
A dissenting voice has been the mayor of Moscow, Sergei Sobyanin, who told old people to stay inside or leave Moscow. At a meeting with Putin on 24 March, he stated that Russia’s confirmed cases might be artificially low. “А serious situation…is unfolding. The number of people who are sick [with the coronavirus] is significantly higher in reality.”
While the Norwegian corona law is worthy of a democracy, it would certainly not satisfy authoritarian leaders who would think that it deprives them of power to act as they wish. The corona crisis may in this way be a defining factor.
Gunnar Ekeløve-Slydal, Head of Policies
There might be a political reason for the official underreporting. A referendum was scheduled to take place on 22 April on a package of amendments to the Constitution. Weeks after the draft amendments were announced in January, Putin signalled support for another change that would allow him to potentially remain president until 2036.
Even though it is unclear if he wants to remain at the helm of the Kremlin for so long, for most Kremlinologists the acceptance by Russians of the 22 April vote was seen as crucial. High number of confirmed cases of Covid-19 would have been a serious challenge to the organisation of the referendum.
The situation changed on 25 March, when President Putin announced in a televised speech that the referendum had to be suspended. He added that everyone should take a one-week paid holiday from 28 March and stay at home. Russia, he said, had managed to “restrain” the spread of the virus by taking early precautions (like closing the border with China on 31 January) but “we must understand that Russia, simply because of its geographic location, cannot isolate itself from the threat.”
There are many questions on the effectiveness of the Russian strategy to curb the epidemic, and whether authorities in different parts of the vast country will stick to it. Critics state that there is need for stronger measures both to contain the virus and to avoid an economic meltdown.
Fighting COVID-19 while upholding democracy
In addition to its effects at the national level, political scientists predict that the corona crisis may lead to further deterioration of the liberal order at the global level. This would include weakening of the role of international organizations and co-ordination between states, and further undermining of Western influence in global affairs.
It is telling to see how Chinese propaganda is making extensive efforts to reshape the narrative of how the pandemic started. China is also a driving force in promoting cooperation between states in handling the disease. In the absence of international leadership by the US under President Donald Trump, China is taking over.
On 26 March, a joint appeal for better international cooperation came from German Chancellor Angela Merkel and Chinese President Xi Jinping. President Xi thanked Germany and the EU for support in the early days of the epidemic and pledged to continue China’s support to European states.
Chinese assistance is of course welcome and may substantially help European and other states to better deal with the crisis. The same goes for Russian support to Italy, although in the long-run the EU will play a much larger role in helping its Member States.
There is a risk, however, of the spreading of perceptions where authoritarian states are generally seen as better in dealing with health crises than democratic states. This is not the case.
- It is true that European democracies and the US are struggling to deal effectively with the crisis. Italy, Spain, France, the UK, the US and other Western democracies experience that the number of confirmed cases is rising fast, while their capacities to test people and implement other effective measures are limited;
- This is, however, not a result of these states being democracies, putting constraints on the power of their governments and depending more on responsible behaviour by their citizens than on only their obedience;
- The examples of Asian democracies, such as Hong Kong, Taiwan, South Korea, and Japan, shows that they are able to cope effectively with the epidemic after having learnt lessons from previous epidemics and having updated their health services. They are now more effective than any other country in containing the spread of the virus;
- Their experience indicates that transparency, co-operation and responsibility among public institutions as well as among civil society and individual citizens is the best recipe for successful containment. They have also learnt to downplay political divisions and base actions on scientific advice;
- Suppressing information about the real situation is possible in authoritarian states – to a certain degree at least – but not in a full-fledged democracy where media report freely and freedom of speech is guaranteed. Without factual information, however, fighting the spread of the virus is doomed to fail.
“In comparing democratic and authoritarian approaches to fighting the Covid-19 it is also worth noting that democratic countries tend to co-operate more and are willing to invest in international institutions that are needed to coordinate handling of global crises such as the corona pandemic,” Ekeløve-Slydal states.
As former British Prime Minister, Gordon Brown, puts it: “As I learned in the 2008 crash, a global problem requires governments to work together. Today’s populist nationalism puts us all at risk”. Part of the problem is that WHO is underfunded and that states do not learn from each other.
If you combine the range of nationalist populist leaders currently in power in the US, the UK, India, Brazil, Indonesia, the Philippines, etc. to the range of nationalist authoritarian leaders in Russia, China, Hungary, etc. you have to conclude that the timing of the corona pandemic has been a worst case scenario. Country after country have “retreated to their national silos”, as Brown puts it.
In addition, these leaders tend to be so fixated on maintaining their power, avoiding unpopular measures, and blaming mistakes on others that they shy away from following the best scientific advice – until it is too late.
A much-needed conversation about rights
The Covid-19 pandemic is a threat to the health of humanity. Governments have to take urgent measures to curb its spread and provide medical care to those who need it. In doing this, they defend human rights to life and health. Inevitably, some of the measures they impose limit human rights. Such limitations should be consistent with legal safeguards. The impact of the measures on vulnerable groups should be carefully assessed.
In comparing democratic and authoritarian approaches to fighting the Covid-19 it is also worth noting that democratic countries tend to co-operate more and are willing to invest in international institutions that are needed to coordinate handling of global crises such as the corona pandemic,
Gunnar Ekeløve-Slydal, Head of Policies
In short, governments must ensure that human rights are represented on all sides of the table where they take decisions. The right to health must be represented, but also the rights of those who lose their jobs because of the lockdowns or those whose quarantine represents a heightened risk of domestic violence. The rights of prisoners, migrant workers, asylum seekers, and discriminated parts of the population should neither be forgotten.
Where does this leave authorities, who want to deal respectfully with the young Nigerian male referred to above. He said he would be guided only by his own faith in God.
Well, he should be told that he certainly has a right to exercise freedom of religion or belief. As this right is defined in the International Covenant on Civil and Political Rights Article 18, it includes “freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
He should, however, also be made aware that “freedom to manifest one’s religion or belief” may be subject to limitations, which are necessary to protect public health.
He should be made to understand the seriousness of the Covid-19 threat, and be invited to think along the criteria presented by the Taiwan Centres for Disease Control. The question he has to answer as best as he can is whether his Mosque has in place:
- Information on participants beforehand;
- Air ventilation and replacement;
- Safe distance between participants;
- Control on whether participants are in a fixed position;
- A limit for event duration;
- Hand hygiene and surgical masks.
Hopefully, this conversation will be a first step in transforming him and his fellow believers into being responsible partners in fighting the spread of Covid-19. He should be asked questions such as how he can help protect his parents and grandparents, who may be at a larger risk than him if infected? How can he play a role in dealing with the crisis by behaving responsibly and finding new safe ways to practice his belief?
He should be assured that the limitations of his rights will be lifted as soon as it is safe.
There is no easy way to deal with these issues. But democratic ways are better.
And more effective.
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