Threats to Democracy Spread with the Virus, We Must Keep Both in Check

As the coronavirus pandemic has spread to all regions of the world, we have begun to see governments respond predictably to the threat by agitating for increased authority. The worst of these, the Hungarian proposal, was easily enacted into law yesterday, setting a terrible precedent for other countries, in the West and around the world. At a time when democracy and rule of law are already weakened, these assertions of power should raise serious concerns, as leaders seek greater power in the short term without pausing to consider possible effects in the long term.

The pandemic has already been compared to 9/11 in terms of the havoc it will wreak on our lives, but the comparison should extend to the havoc it will wreak on democracy if we hand governments broad power without regard for individual rights and the need for oversight. Of course, it’s natural for a government to seek additional authorities in an emergency situation, especially a public health emergency like this one, which requires dramatic restrictions on daily life to stop the spread of the virus. But even during emergencies, certain rights can never be curtailed, such as the right against torture or inhuman treatment, according to international human rights law.

And, a government may only limit certain individual rights, such as the right to particular measures of due process, when a public emergency, such as a threat to public health, is serious enough that it “threatens the life of the nation.” In that case, the limit must have a legal basis, be strictly necessary and proportionate to achieve the government’s valid objective, not be discriminatory, be limited in duration, and be used only for the purpose for which it was legislated. International law requires all of these conditions be met before states can limit or narrow certain rights.

Currently, multiple countries are seized with the need to activate emergency powers, under truncated timeframes. The forms of these proposals vary widely, expanding economic powers, detention and legal authority, or power to combat disinformation. All must be reviewed through a rule of law and human rights lens to determine their desirability.

In the Philippines, President Rodrigo Duterte sought, through emergency proceedings (including a Zoom vote), power to temporarily take over private businesses, including telecommunications businesses. So far, he has been denied full authority over private companies, but was granted power over hospitals and transportation. He was also given power to make financial purchases without abiding by procurement rules. These powers were supposedly granted “for a limited time” but no time limit is stated in the legislation. The risk is that Duterte could interfere with private businesses when he disagrees with their goals or products, control businesses for longer than necessary, or use telecommunications companies to spread propaganda or limit access to information. The limits on compliance with procurement rules could, if unchecked, open the door to corruption.

In Brazil, President Jair Bolsonaro’s government is attempting to limit access to the court system by creating a Committee of Justice Bodies that will hear court cases – so the judicial system won’t have to. But the procedures of this Committee do not meet international standards and will not guarantee due process.

In the United Kingdom, legislation being fast tracked this week and passed by “nod” instead of through a regular vote, will grant additional powers for two years. Police, public health, and immigration officers will have greater power to detain individuals they suspect may have COVID-19, force them into isolation, prohibit them from travel, and force them to provide biological samples, and detail their travel history. These powers, while open to abuse, initially sound narrowly tailored enough to combat a pandemic. However, given greater power to detain immigrants, immigration officers could easily, and foreseeably, abuse their authority. In addition, the law grants the prime minister power to temporarily suspend immigration operations at transport hubs, which could be used to entirely cut off processing of asylum seekers fleeing violence.

By far the most concerning proposal to date is Hungary’s. Initially considered for fast-tracked approval on March 23, the bill failed because it lacked votes from opposition parties. It was then brought up using standard procedures for a vote yesterday, March 31, passed, and was signed. No opposition votes were needed for it to pass on a standard vote.

This is concerning, because its provisions are severe. Under the legislation, Hungary’s parliament will be disempowered in favor of rule by executive decree. The parliament now loses the ability to check the power of Viktor Orbán and his executive branch. Since the Fidesz government has hamstrung its court system, already limiting judicial oversight, this would remove the last obstacle to a dictatorial government. This is especially true since expanded executive power will be granted indefinitely: The bill has no sunset clause.

The law also creates two new crimes, punishable by five-year prison sentences: the crime of publishing false facts that interfere with protection of the public, and the crime of interfering with quarantine or isolation. These laws are vague and easily susceptible to abuse. Indeed, Bulgaria’s President Rumen Radev just vetoed a similar measure prohibiting false information, because it ran afoul of free speech rights.

This legislation is a dream come true for wanna-be dictator Orbán, who has already rewritten Hungary’s constitution to consolidate power, taken over the constitutional court, and decimated independent media. There remains little, if anything, standing between Orbán and authoritarian rule, a serious risk to security within the EU and NATO. This risk was pointed out by both Democratic and Republican leadership of both House Foreign Affairs and Senate Foreign Relations. It also sends a harmful message to other countries in Europe and the West that power grabs in the name of emergency response are okay.

Fionnuala Ní Aoláin, the U.N. special rapporteur on protecting human rights while countering terrorism, has noted that expanding emergency power almost always leads to expanded violations of rights and rule of law.

“The track record on states of emergency demonstrates two things: 1) Governments consistently overreach to use powers not strictly necessary by the exigency faced 2)That the powers remain indefinitely & are used for other purposes with severe human rights consequences,” she noted on Twitter.

We must be vigilant at this time, to protect ourselves not only against the coronavirus, but also against another virus that is spreading: that of anti-democratic governance.

Image: Hungarian Prime Minister Viktor Orban walks near other representatives during a vote about the government’s bill on the protection against the new coronavirus COVID-19 at the plenary session of the Hungarian Parliament in Budapest, Hungary on March 30, 2020. Photo by Zoltan MATHE/POOL/AFP via Getty Images

 

About the Author(s)

Melissa Hooper

Director of Human Rights and Civil Society program at Human Rights First; previously worked for nine years as a practicing lawyer in state and federal courts on death penalty cases. Follow her on Twitter (@melhoop10)