Coronavirus and the Rule of law

There is no agreed upon global definition of the Rule of Law. However, according to Ian McDougall, a universal definition of Rule of Law can be adopted, without reference to or influence by politics, or political or social influence.  According to McDougall, a global definition of Rule of Law includes 4 elements: (1) Equality under the law  (all human beings are treated in the same way); (2) Transparency of law and the legal process (law must be accessible, one shall not be subject to secret laws); (3) An independent judiciary (the judiciary shall not be influenced by politics or by the possible outcome of the case, it shall be free from corruption and decide the case on the basis of the law and the evidence before it); and (4) Access to remedy. These principles, when applied, lead, not only to peace and stability, but also to economic prosperity.

Exceptional situations lead to exceptional measures which, in order to be legitimate, must be appropriate, proportionate and temporary. In the context of a crisis, however, the source of the crisis is often used as a pretext to bypass the Rule of Law. The panel discussed the power of the various branches of government to impose emergency measures, in the US, Hungary, India and Spain.

As Jacqueline Scott noted, individual freedom and liberty are the cornerstone of US democracy and the foundations upon which the country was built. The federal government has very limited powers in imposing mandatory rule for the whole nation. Therefore, the states and local governments have the right to impose protective measures such as stay-at-home orders, requirement to wear masks, limiting gatherings to 10 people or fewer, requirement to be vaccinated when a vaccine will be available, etc. However, these powers are not unlimited: the measures cannot be discriminatory and have to be proportionate (stay at home order cannot be extended indefinitely). State authority has been and continues to be challenged by those who believe their freedom is infringed by orders to stay home and wear masks in public.  

In Hungary, according to Andras Szecskay, on March, 11, 2020, the government announced the state of emergency intended to last for two weeks. The Parliament then passed a law to vote the state of emergency for an unlimited period of time. The government has been granted extreme powers for a limitative scope (prevention of the human epidemic endangering life and property and causing massive disease outbreak, elimination of its consequences, protection of the health and lives of Hungarian citizens) and the Parliament remains active in all other matters. Because the government’s political party enjoys a qualified majority in the Parliament, any emergency powers proposed by the executive branch are likely to be approved by the Parliament. 
The EU investigated the situation in Hungary and declared it compliant with all applicable EU rules. In the past two months, the government passed more than 100 decrees falling within the scope of the authorization given by the Parliament. President Oban declared that the government will return the power to the Parliament at the beginning of June.

In India, according to Avi Singh, the state of emergency was declared by referring to the Disaster Management Act, originally drafted for natural catastrophes such as cyclones, earthquakes, etc. This act shields the government from any liability and from judicial review except by the constitutional courts. India’s lockdown has been declared the most stringent lockdown worldwide because of the use of ad hoc powers: the use of force by the police, the restrictions on the right to work and on the right to move. In a nutshell, rights have been taken away by applying and misinterpreting a legislation which does not provide for the removal of those rights.  The judiciary must step in and decide if these restrictions of constitutional rights are allowed under the legislation and, if so, proportionate.

According to Carlos Flores Juberias, Spain declared a “state of alarm” one and a half months after the coronavirus appeared on its soil. This “state of alarm” provides the government with a wide array of powers: limitation in the movement of people; limitation of the use of service or the consumption of goods; Indeed, the government went so far as to order the suspension of academic and cultural activities, closed most businesses, forbid mobility of people, limitation on how religious services can be carried out, etc. However, the decree misapplied the Constitution, which only enables a limitation of basic rights but not suspension. This decree has been extended several times since March 2020.
The Spanish government’s decree has challenged the Rule of Law. The proper mechanism has not been implemented to achieve the goals pursued by the government. It is interesting to note that such a highly restrictive, intrusive policy and a strict limitation of political rights have not provided the results of blocking the spread of the virus in Spain.

The panel then addressed another pillar of the Rule of law: access to justice.
In the US, access to justice continues; most courts are functioning virtually (electronic filing, virtual hearings, virtual trials). However, the virtual trials are not accessible to the public and people are unable to get a jury trial (12 jurors) where gatherings of more than 10 people are prohibited. One notable and disturbing development is a quite secretive yet broad-sweeping  request by the U.S. Department of Justice to Congress to allow the Attorney General to direct the Chief Judge of each federal court to detain people indefinitely without trial during emergencies – at every step of the criminal judicial process until the crisis/emergency has passed.

Access to justice also entails the right to a lawyer: to be represented by a counsel and meet with them in a confidential manner. In the U.S., lawyers have been declared by many states as “essential services” and thus allowed to continue to work during the lockdown period.

In Hungary, courts remain operational, proceedings have not been interrupted, and statutes of limitations and time frames continue to run (i.e., they are not suspended or interrupted).  However, courts are flexible in granting extensions, without any specific reason other than the pandemic. Courts do not hold open hearings but instead hold videoconference hearings. In practice, judges rule on the basis of the parties’ written pleading. Courts do not recognize the COVID-19 crisis situation as a force majeure.

In India, lawyers have not been declared “essential services,” in contrast to the police and some businesses which have continued to function. Courts are functioning on a very limited basis (non-urgent civil and criminal matters have been postponed, suspension of bankruptcy courts); however, there has been no judicial review of the emergency powers of the government.
The panel also quickly noted that Bar associations have a very significant role to play in defending the rule of law, in protecting and supporting the lawyers, and in standing up against dangerous measures that threaten the Rule of Law.

Conclusions:
All speakers agreed that finding the correct balance between protection of individuals from COVID-19 and protection of individual rights/ Rule of Law is a difficult task, and it is not clear who – scientists, economists, judges -- are tasked with determining that balance. All speakers noted that the effects of COVID-19 on the rule of law have been dramatic and sometimes draconian, and there is concern that emergency COVID-19 measures will be difficult to reverse. All concluded that lawyers and judges must be ever vigilant in defending the Rule of law, and citizens must hold their governments accountable to ensure that emergency measures are removed when the pandemic is over. 

By Jacqueline Scott
UIA Director General UIA-IROL
Washington DC, USA