Blog piece by Richard Sannerholm
Governance systems are tested in times of crisis. Crisis means a disruption of the normal (coming from the Greek word krísis meaning “an act of separating” or “sudden change”), and with crisis follows unpredictability.
In the Covid-19 pandemic there is an additional element that stands out, namely time. Most crises are short-lived, they erupt and die out. With Covid-19 there is no end date in sight. Unpredictability is becoming the norm and governance systems must navigate this new landscape. What is being tested is therefore not so much how governments react to the crisis, but how they manage it over time while attempting to continue with normal governance functions.
Never let a good crisis go to waste
There is a saying in politics that one should never “let a good crisis go to waste”. This is true for the Covid-19 pandemic. It has been reported from many sources that political leaders have exploited the pandemic to reinforce their grip on power.[1] In many instances they have done so through constitutional means, issuing emergency decrees or laws or used the fact that parliamentary sessions and functions have been temporarily disabled or on hold. With history as an indicator, this was to be predicted.
Other similar extraordinary historical events have produced comparable results. After the 9/11 terrorist attacks, a surge of leaders stood with the Bush administration in its global fight against extremism and terrorism. Some of those leaders used the opportunity to launch anti-terrorism campaigns within their own jurisdictions as nothing but a pretext for removing oppositional individuals and groups.[2] In other countries, leaders succumbed to the pressure and acted contrary to laws and established procedures, including Sweden.[3] And on the international level, the sanctions regimes set up by the UN were a far cry from the rule of law.[4]
It is in this context that Stephen Holmes, professor of law at New York University, used the analogy of emergency room personnel to show the importance of the rule of law: “Emergency-room personnel are acutely aware of the serious risks posed by excessive delay. Though they understand the need for immediate and unhesitating action, they nevertheless routinely consume precious time to follow protocols drilled into them and practiced in advance. Why do they do this? They do it to minimize the risk of making fatal-but-avoidable mistakes under the psychologically flustering pressures of the moment.”[5]
Rule of law has a similar purpose: it is a regimented practice of rules, procedures, and protocols that political leaders and public officials must adhere to, even in (or specifically in) extraordinary and extreme events. The aim is to minimise arbitrary power. From this it is also understood that the rule of law is more than a disabling restraint but also serves to remind us of long-term objectives and the risks that might otherwise be neglected in crisis management.
Rule of law was on the retreat before Covid-19
The rule of law was already on the retreat in many countries even before the pandemic. With the pushback on the rule of law, and the fact that the crisis will continue for a long time, an early policy lesson for the rule of law community is ensuring that the tools and practices for assessing accountable governance are attuned to this new normal. The international rule of law community is accustomed to observing and reacting to seismic shifts – events and actions that greatly damage and harm the rule of law.
The recommendation here is to be more observant of lesser harms. This means observing minor and gradual changes to the architecture of accountable governance. For instance, restrictions on mobility affect how people access courts and other public institutions. This may over time present false negatives about people’s justice needs. Staffing needs or reorganisations of the judiciary and other public bodies may be put on hold, or only partially met, as alternative strategies are employed or services become more digital. These are small-scale changes, but the effects are unknown, particularly in a prolonged crisis. Just as the health sector prioritising Covid-19 accumulates a public health debt, such restrictions may create a justice or governance debt, or it may change public attitudes and perceptions towards governance in ways that are hard to foresee. There are also invisible harms – resources never spent, laws that were never passed, or actions turning into inactions. It is difficult to observe what did not happen, and difficult still to predict the consequences of things falling to the wayside.
Effects on the judiciary
What is known so far about the effects of Covid-19 on rule of law and accountable governance? There have been seismic shifts in some countries, where leaders have stretched the principles of emergency law to the extreme.[6] In others, the curtailing of freedom of expression fails to meet proportionate, necessary, and legitimate aims.[7] The main trend, however, is the multitude of lesser harms that the rule of law suffers. This is clearly seen when looking at judicial institutions.
A forthcoming ILAC report, carried out by the Cyrus R. Vance Center for International Justice of the New York City Bar Association, examines the issue of Covid-19 and challenges to the judiciary in Latin America and the Caribbean. The study builds on interviews with judges from thirteen countries.
Generally, and though all countries in the study issued emergency decrees or similar regulatory acts, this led to few contestations in courts. What is more worrying are the concerns of judges regarding a proper funding of the courts. With only a few exceptions, judiciaries reported on having to adopt austerity measures to reduce spending, and even in some countries having to return already allocated funds from the approved budget.
It is difficult to assess what this means for the respective judiciaries on a long-term basis, and whether funding will swing back at some point to pre-Covid-19 levels. For the judiciaries that were already struggling financially, the long-term risks are considerably higher and a setback of operative capacity is expected. It is a concern that the longevity of the pandemic will set precedents for how judiciaries are resourced, and that funding may become less predictable.
What is clear from the data on Latin America and the Caribbean is that judiciaries initially assumed responsibility of suspending or scaling-down activities, except for the most urgent cases, to minimise the spread of the virus. They have since wrestled with finding a new normal under difficult circumstances. A trend in the countries covered in the report is that finding a new normal has involved digital means for dispensing justice. Courts across the region resorted to remote hearing and other digital solutions. Country examples show both adaptability to the pandemic, given the right tools and resources are provided, and instances where judges have had to improvise and use their own personal technology to meet minimum demands for access to justice and a fair hearing. This also raises concern regarding privacy rights and general data security.
Another ILAC study underway looks at how Covid-19 affects the rule of law in the Tunisia, Libya and Palestine from the point of view of vulnerable groups.[8] Here the tentative results are distressing and illustrates how lesser harms have serious consequences for individuals.
The justice debt accumulated in Tunisia, Libya and Palestine, from the scaling down of judicial activities, has affected vulnerable groups in cases such as alimony, child custody and visitation rights. Many women have been set in financial hardship when there is no resolution on alimony. Pre-trial detainess have reported difficulties of accessing legal counsel because there are concerns about the health rules of prisons and custodial institutions. Courts in the three countries struggled before the pandemic with a backlog of cases and courts are now in some instances operating on a severely reduced capacity. There is also a challenge of access to information on what services and what procedures that are open, and to what capacity, during Covid-19. Domestic violence cases have seen an increase in the countries covered by the study. It is reported of situations where women file complaints on domestic violence, but without the assistance of legal counsel. In the absence of legal counsel, the police have been recalictrent or attempted to persuade victims of domestic abuse to withdraw their complaints.
Moreover, the accumulation of justice debts seems to be uneavenly distributed across judiciaries. From the two forthcoming studies, on Latin America and the Caribbean, and Tunisia, Libya and Palestine, data suggests that getting back to normal will be quicker for criminal justice. The prioritisation of hearings during the pandemic has favoured criminal justice while administrative justice hearings lag behind. The accumulation of justice debts regarding administrative justice can pose serious harm for individuals in a number of issue areas strongly related to economic development, and where interventions from the state, or wrongful decisions by state agencies, await judicial resolution.
Careful what you wish for
It is evident that Covid-19 has accelerated the digitalisation of governance, including judicial services. The scaling up of digital governance is a development that many organisations called for long before the pandemic.
Reports from Latin America and the Caribbean show how the relatively quick introduction of virtual hearings and other developments have meant that courts have maintained their important function, in particular regarding urgent matters.
Yet, the results so far are mixed. The legal risks are the ones commonly associated with digital justice – how to ensure safe and secure technology, privacy and personal data and data security, but also fair trial standards.
Moreover, just around the bend lies further digitalisation such as assisted or fully automated decision-making and the use of machine learning.[9] This technology is already in use in some countries.[10] Most observers agree that such technology has to be surrounded by a clear regulatory framework, in particular for high-risk sectors such as public services, and high risk areas such as criminal, administrative and civil justice.[11]
Thus, the cautionary warning has less to do with the technology itself and more to do with the new normal of the pandemic. There are strong cost-efficiency motivations behind the digitalisation of governance, and cost efficiency sometimes overrides proper due diligence standards when introducing new technology.[12] The pandemic works as an accelerator for a wide range of initiatives and innovations. That is the upside of human ingenuity. The downside is that safeguards for ensuring that new developments follow rule of law principles may not be in place, and it is difficult to roll back technological expansions or to adopt necessary control mechanisms afterwards.
Maintaining the rule of law
For the rule of law community it is important to react to seismic shifts that are harmfult to the rule of law, but to maintain a focus on lesser harms. This means tracking and monitoring resource allocation to courts, in particular looking for irregularities in funding. Organisational issues such as proper staffing and continuous legal education, that under normal cirumstances are always at risk of being underfunded will require more attention.
The use of digital means should be assessed from the point of view of fair trial standards and privacy and data protection. The acceleration of digital tools due to the pandemic provides an extra element of risk since speed and scale will likely be apmplified.
The judicial protection of vulnerable groups requires more in-depth studies but one clear conclusion is that improving access to legal representation will be paramount in securing access to justice during the pandemic and afterwards.
While this is a severe pandemic, the crisis also show the relevance and value of the rule of law as a public good, and the efforts required to overcome challenges undermining accountable governance.
Sources
[1] World Justice Project. Accountable Governance and the Covid-19 Pandemic. Policy Brief. 2020.
[2] Richard Ashby Wilson (ed.) Human Rights in the ‘War on Terror’. Cambridge University Press. 2009.
[3] In 2001 Sweden forcibly returned two Egyptian asylum seekers, with the support of US operatives. The Swedish Government claimed to have received guarantees that Egypt would not use torture against the returnees. The Constitutional Committee of the Swedish Parliament criticized the handling of the return. Konstitutionsutskottets betänkande. 2005/06:KU2. Granskning av regeringens handläggning av visa avvisningsärenden m.m. See also, Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005).
[4] Bardo Fassbender. Targeted Sanctions and Due Process. Study commissioned by the United Nations Office of Legal Affairs. Humboldt University. 2006.
[5] Stephen Holmes. “In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror”. California Law Review. 97:2 301-356. 2009 p. 302.
[6] Anne Appelbaum. ”Creeping Authoritarianism Has Finally Prevailed”. The Atlantic. 3 April 2020.
[7] Peter Noordlander. Covid and Free Speech. The impact on COVID-19 and ensuing measures on freedom of expression in Council of Europe member states. Council of Europe 2020.
[8] The interviews are conducted by the following ILAC members: American Bar Association – Rule of Law Initiative, Public International Law and Policy Group, Palestinian Center for Human Rights and Al Haq. ILAC Senior Advisor Ismaël Benkhalifa is also conducting interviews in the realms of this study.
[9] See Council of Europe, High-level Conference AIFINCOE, Governing the Game Changer – Impacts of artificial intelligence development on human rights, democracy and the rule of law. 26-27 February 2019, Helsinki.
[10] Algortihm Watch. Automating Society Report 2020.
[11] See the proposed regulation from the European Parliament on artificial intelligence. European Parliament. European Parliament resolution of 20 October 2020 with recommendations to the Commission on a framework of ethical aspects of artificial intelligence, robotics and related technologies. 2020/2021(INL).
[12] A report from the Swedish Agency for Digital Government estimate cost savings of six percent of all public expenditures through the digitalization of governance.
About the author
Richard Sannerholm is Director of Operations at ILAC.
