“Emergency powers should not be a weapon government can wield to quash dissent, control the population, and even perpetuate their time in power. They should be used to cope effectively with the pandemic- nothing more, nothing less.”
These are the words of the UN High Commissioner for Human Rights, Michelle Bachelet who released a statement yesterday, calling on governments to ensure human rights are not violated under the guise of emergency measures.
She said that states are allowed to restrict some rights in order to protect public health and they are able to use additional powers if a state of emergency is declared. But in both cases, restrictions need to be necessary, proportionate, and non-discriminatory. She added that they also must be of limited duration and key safeguards against excesses must be put in place.
Rights such as the right to life, prohibition against torture and other ill-treatment, and the right not to be arbitrarily detained continue to apply in all circumstances.
Measures and laws introduced in some countries contain references to vaguely defined offences, coupled at times with harsh sentences, fuelling concerns they may be utilized to muzzle the media and detain critics and opponents. Although measures to restrict movement and assembly are legitimate in such circumstances, public confidence and scrutiny are essential for them to be effective.
“It is important to counter misinformation, but shutting down the free exchange of ideas and information not only violates rights, it undermines trust. False information about COVID-19 poses a huge risk to people. But so do bad policy decisions,” the High Commissioner said. “Undermining rights such as freedom of expression may do incalculable damage to the effort to contain COVID-19 and its pernicious socio-economic side-effects.”
Bachelet said many states have adopted reasonable measures but there have been “deeply worrying cases” where Governments appear to be using the pandemic as a cover for undermining the rule of law, human rights violations, restricting fundamental freedoms, and civic space.
“Given the exceptional nature of the crisis, it is clear States need additional powers to cope. However, if the rule of law is not upheld, then the public health emergency risks becoming a human rights disaster, with negative effects that will long outlast the pandemic itself,” she concluded.
The UN has created a guidance document for states on how to implement emergency measures, whilst preserving human rights. All measures implemented must be legal, necessary, proportionate, and non-discriminatory. The limitations must also be interpreted strictly and in favour of the right at issue. Furthermore, the burden of justifying restrictions on rights lies solely with the governments themselves.
Additionally, the guidance states that sufficient information about emergency legislation and measures should be communicated swiftly and in all official languages of the State.
This did not happen in Albania as Exit reported, all government information was communicated solely in Shqip, meaning members of minority groups and ex-pats were left to seek information elsewhere.
Transparency and the right to information must also be preserved. Media freedom must be protected as “journalism serves a crucial function during the emergency,” said the UN guidelines.
The document also states that penalties for violating measures must be proportional and should only deprive persons of their liberty as a last resort.
Albania recently pushed through changes to the criminal code that makes breaking measures punishable by up to 15 years in prison. These were criticised locally for being allegedly unconstitutional.
The document from the UN also advises against any criminal penalties for information offence. The spread of misinformation can be countered by the state promoting independent fact-checking, education, media literacy and by providing clear, reliable information in the first place.
In terms of military intervention, the UN states that the military should not conduct policing functions. This should only occur in exceptional situations for limited periods and specifically defined circumstances.
