Rights and liberties during the Coronavirus pandemic: is trusting the government the right choice?

By Philip Alexander*

In 1918, the Spanish Flu infected nearly 500 million people. The Governments of the world took restrictive actions to contain the spread of the highly infectious disease resulting in the containment of the virus within two years. Now, 100 years later, we see similar trends emerging with the outbreak of COVID-19.  The Coronavirus, caused by the severe acute respiratory syndrome coronavirus 2 (SARS-Cov-2), was declared a pandemic by the World Health Organization on March 11th, 2020. With a majority of countries currently on extreme lockdown measures and their respective citizens preoccupied with this virus, a vital part of this situation has been overlooked by most. Restriction of individual liberties in the time of a public health crisis, such as a deadly virus, is an appropriate response by the government to the situation. According to the Siracusa Principles, public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population.[1] This article explores the concept of civil liberties in the time of a public health emergency. An attempt will be made to understand how a crisis may be exploited and how the threat to democracy is a possible outcome of this 21st century pandemic.

Strict measures adopted during a medical emergency such as isolation and quarantine can be traced to the Bible. Leviticus 13:46 says, “All the days wherein the plague shall be in him, he shall be defiled; he is unclean: he shall dwell alone; without the camp shall his habitation be.” During the middle ages, bible verses were relied on by religious authorities to banish lepers from interacting with society.[2] The belief that lepers were unclean and the spread of the disease by breathing the same air as a Leper were reasons why they were deemed to be ‘socially dead.’ The Council of Lyon in 538 AD resulted in a decree that restricted the free association of Lepers with healthy members of the society. A man or woman suffering from Leprosy was deprived of every natural right he or she possessed as a result of the absence of due process of law.[3] Modern-day emergencies do not necessarily induce democratic governments to introduce draconian measures that deprive one group of their rights over others as the law has evolved. However, the exploitation of an emergency, such as the Coronavirus, to fuel an autocratic takeover is a possible scenario that must be further examined to prevent it.

Examining the global threat of human rights violations

The Hungarian Parliament recently passed a bill in light of the virus that called for an emergency rule that allows Prime Minister Viktor Orbán to rule by decree for an indefinite duration.[4] Spreading misinformation will result in a five-year jail sentence, effectively criminalising any form of criticism or dissent against the government. Moreover, all by-elections and referendums stand cancelled indefinitely. Political leaders are publicly comparing the emergency to a wartime crisis and implementing harsh military action to civilian life. “Just as in wartime, a state of emergency could extend until the end of hostilities. Today, we confront not military power but are in a war-like state to defend our people against a pandemic the likes of which we have not seen in a century” said Orbán’s spokesman Zoltán Kovács. A similar situation is panning out in Israel. Prime Minister Benjamin Netanyahu is facing criminal indictment of fraud, bribery-taking, and breach of trust, and has used the virus to declare the closure of all judicial proceedings and establish extreme surveillance policy to monitor Israeli citizens.[5] He has also ordered the Knesset from convening, thereby banning any form of investigation into the imperial measures he has adopted. Critics describe it as the ‘Coronavirus Coup.’[6]

The exploitation of a national emergency is not unusual. The 9/11 terror attacks resulted in the government taking stringent measures to combat terrorism such as the surveillance and policing of the Muslim population within the United States.[7] The Bush administration passed the Patriot Act to counter the insurgency of terrorist activity. However, the surveillance policies introduced were grave violations of an individual’s civil liberty. The racial profiling and surveillance undertaken in Muslim and African American communities were considered necessary actions by the United States government.[8] However, this has aggregated over the last two decades resulting in widespread unchecked surveillance that has undermined the liberty of millions of American citizens.[9] The U.S Department of Justice has proposed for all legal proceedings to be paused indefinitely during the pandemic, which threatens the entire concept of Habeas Corpus[10]which is the right against unlawful detention. A judge would have the power to detain someone indefinitely without the ability to seek trial until the emergency is deemed to be over. These restrictions could be abused and could also form the basis for new laws post COVID-19, as we have seen with the introduction of the Patriot Act post 9/11. Laws established during a crisis become significantly harder to repeal as the citizens of the state are preoccupied with the ramifications of the crisis and do not question the constitutional validity of the law. Once the crisis has subsided, the law has been solidified within the legal framework and the violations of rights and liberty resulting from the law go unnoticed.

Concluding Remarks

An emergency may warrant the government to introduce measures that naturally prioritize security over liberty. And its citizens may accept the limitations in exercising their rights as we are riddled with anxiety on the far-reaching threats posed by the pandemic. But safeguards must exist in preventing the dire situation that is presently evolving in countries like Hungary and Israel. Active steps must be taken to be better prepared for all forms of future emergencies. Pauline Wright, President of the Law Council of Australia, recently spoke of the boiling frog analogy[11] that describes the situation quite aptly. She said, “We don’t want to see our rights and liberties chipped away a little bit at a time until it’s too late — the water we’re comfortably in suddenly reaches boiling point, and it’s too late to leap out.”

*Philip is a student at the National University of Juridical Sciences, India.

[1] The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. (1985). ICJ. [online] Available at https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf:

[2] Daubert, M. (2007). Pandemic Fears and Contemporary Quarantine: Protecting liberty through a Continuum of Due Process Rights. Buffalo Law Review, [online] 54(4), p.1302. Available at: https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1124&context=buffalolawreview

[3] Id.

[4] Loveday, M. (2020). Hungary’s ‘coronavirus bill’ hands Orban unchecked power. [online] Washington post.   Available at: https://www.washingtonpost.com/world/hungarian-parliament-hands-orban-power-to-rule-unchecked/2020/03/30/cc5135f6-7293-11ea-ad9b-254ec99993bc_story.html

[5] King, L. (2020). ‘Coronavirus coup’? As outbreak grows, authoritarians around the world seize the moment. [online] Los Angeles Times. Available at: https://www.latimes.com/world-nation/story/2020-03-31/as-coronavirus-tide-rises-authoritarians-around-the-world-seize-the-moment

[6] Id.

[7] Sinnar, S. (2019). Applying 9/11 laws to domestic terrorism could hurt minorities more than white supremacists. [online] USAToday. Available at: https://www.usatoday.com/story/opinion/2019/09/11/reform-9-11-terrorism-laws-dont-expand-to-white-supremacists-column/2258400001/

[8] Coghlan, J. (2011). Patriot Act: A civil liberties breach or a foreign policy necessity? [online] Foreign Policy Journal. Available at: https://www.foreignpolicyjournal.com/2011/06/17/patriot-act-a-civil-liberties-breach-or-a-foreign-policy-necessity

[9] Coyne, C. and Hall, A. (2018). The Origins of the U.S Surveillance State. [Blog] Stanford University Press. Available at: https://stanfordpress.typepad.com/blog/2018/03/the-origins-of-the-us-surveillance-state.html#:~:text=The%20thriving%20U.S.%20surveillance%20state%20clearly%20illustrates%20the,where%20it%20is%20flourishing%20over%20a%20century%20later.

[10] Swan, B. (2020). DOJ seeks new emergency powers amid coronavirus pandemic. [online] POLITICO. Available at: https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023

[11] Keane, D. (2020) Coronavirus, emergency laws and civil liberties: Are our rights and freedoms at risk? [online] ABCNews. Available at: https://www.abc.net.au/news/2020-04-03/coronavirus-emergency-laws-and-civil-liberties/12114042