The separation of powers between the three branches of a democratic state — Executive, Legislative, and Judicial — is an essential element of the Rule of Law. It guarantees a system of checks and balances which provides stability and preserves the Rule of Law. While the responsibility of maintaining this falls on the Judicial Branch, this has been drastically impacted by the COVID-19 pandemic.
The United Nations recognises that coercive measures on behalf of the Executive Branch may be required in certain situations and therefore calls for their proportionate use. Such steps to mitigate the effects of the pandemic have taken the form of strict lockdowns, often based on the exercise of emergency powers in some countries.
Judge Matos, the President of the European Association of Judges, highlights his concern regarding emergency laws, which enable governments to use excessive powers, as he believes they might seek to undermine the role of the judiciary as “guardians of human rights and civil liberties”. To make his point, Judge Matos quotes Thomas Jefferson: “[t]he price of liberty is eternal vigilance”. Fionnuala Ní Aoláin, UN Special Rapporteur on counter-terrorism and human rights, predicts that one can expect a parallel epidemic of authoritarian measures due to the advent of COVID-19.
For instance, in Israel, Prime Minister Netanyahu circumvented Parliament by passing an emergency resolution to empower its internal security agency, Shin Bet, to use surveillance technology on its citizens. Such technology was previously used to meet challenges that may have arisen from acts of terrorism. Although this has assisted the Health Ministry to retrace the movement of those infected by COVID-19, it has been criticised by several Israeli civil rights organisations.
The Supreme Court of Israel has responded by saying that the use of this technology poses a potential risk to privacy (including freedom of the press). It has directed the government to bring the issue through legislation, should it want to continue using this technology. The UN has also urged Member States to ensure that data of this kind is secure, emphasising it should only be used for legitimate public health concerns, and not for purposes beyond the remit of the pandemic. Moreover, restrictions imposed on Israeli courts to curb the spread of infection have attracted harsh criticism from the Prime Minister’s political adversaries, as they ultimately led to the postponement of his trial in three corruption cases.
Filipino President Duterte’s controversial anti-terror law has similarly drawn strong criticism from human rights groups. This comes at a time when the President has adopted a stance described by the United Nations as “highly militarised”, referring the arrests of over 100,000 individuals found to be violating curfew rules during COVID-19. The anti-terror law further enables law enforcement agencies in the Philippines to arrest suspects for weeks without any charge. The Supreme Court of the Philippines has received over a dozen petitions to deem this law unconstitutional on grounds that it violates human rights and may be used to silence political opponents.
This alarming trend of governments using excessive police powers during the pandemic has been witnessed in Hungary as well. In March, the Hungarian Parliament voted to allow populist Prime Minister Orban to rule by executive decree in order to combat the pandemic. Provisions of the emergency powers bestowed on him included the suspension of Parliament and imprisonment of individuals found to be spreading “fake news” relating to the pandemic for up to five years, posing a threat to freedom of the press. While the Parliament unanimously voted to end the Prime Minister’s extraordinary powers in the latter part of June, another Bill was simultaneously passed, allowing the government to declare a state of public health emergency and to rule by decree for however long it wishes. This has led critics to believe the government is more powerful than ever before.
In times of crisis like this, the Judicial Branch has had mixed reactions on its role, or lack thereof. For example, Justice Bobde, Chief Justice of India, has said that “[t]his is not a situation where declaration of rights has much priority or as much importance as in other times”. He further says that apart from looking at the validity of executive action and protecting “right to life”, there is very little courts can do.
Former Supreme Court Judge, Justice Lokur, however, has maintained that basic human rights are inherent and cannot take a backseat, even during the pandemic. The United Nations supports this; while it agrees that certain human rights can be derogated during an emergency that endangers the life of the nation, it does not permit the erosion of specified prerogatives enshrined in international human rights law.
In their April 2020 report, “COVID-19 and Human Rights”, the UN actively advocates for courts to function amidst lockdown, as justice delivery and application of the Rule of Law will help States' efforts. The absence of an actively functioning judiciary in a democratic state invites anarchy, the breakdown of law and order, and authoritarianism.
As governments globally limited the freedom of movement and other civil liberties in the wake of the pandemic, contrary to expectations, the first response of most judiciaries, including the Supreme Court of the United States, was to temporarily suspend its operations until alternatives could be considered. This adversely impacted Sustainable Development Goal 16 of the United Nations which seeks to promote the Rule of Law and equal access to justice for all.
Several judicial bodies in the initial days of the lockdown adopted an approach similar to courts in England and Wales by hearing only those cases requiring immediate attention, such as overnight custody, terrorism, and COVID-19-related crimes. Though courts across the globe may have started remote courtroom sessions to some extent, for most there is a halt in regular operations leading to a massive backlog of cases.
For example, in a populous country like India, over 30 million cases remain pending in courts and are expected to take over 300 years to clear, provided a fresh case is not filed. The halt in operations due to the pandemic is expected to further exacerbate the pileup. Similarly, between March and May 2020 in England and Wales, the backlog of cases listed before the Magistrates’ and Crown Courts has increased by 41 percent and 53 percent, respectively. While Mr Buckland, Secretary of State for Justice, shared his intention to prepare legislation for some trials to be held without a jury to get around social distancing guidelines, this has been strongly criticised by representatives of the Criminal Bar Association and the Law Society of England and Wales.
While the corporate and educational sectors have successfully incorporated technology as an alternative to traditional ways of meeting and communication, judiciaries across the world have been rather hesitant and often unwilling to make the transition. This apprehension to digitise or shift to virtual courts can be attributed to the absence of contingency plans and the lack of resources for the introduction of technology and creation of digital records, amongst other tasks. With the Judicial Branch struggling, one can only hope that this reluctance is overcome and technology is introduced in order to address the fallout of the pandemic, and prevent this situation from happening again should another pandemic-like event occur.