Courts, States of Emergency and Rule of Law

By: Diego García-Sayán

Special Rapporteur Diego García-Sayán is the United Nations Special Rapporteur on the Independence of Judges and Lawyers. He formerly served as the President of the Inter-American Court of Human Rights. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.



COVID-19 has been traveling rapidly since December last year. Carried by millions of tourists and expanding, first, to Europe, the United States and then the rest of the world. At the beginning gradually and imperceptibly, then exponentially. The WHO declared it a pandemic on 11 March 2020 when the number of infected people was "only" 118,000 and the number of deceased people, 4,291. With over 3.5 million people infected and over 250,000 dead as of the day of this writing, the world has built new frontiers and is becoming unrecognizable.

We have come to a situation in which the borders of a globalized world are in dilution. In the blink of an eye, we have passed to another world in which the rule of isolation prevails and the prohibition of all cross-border travel is the new standard that rules the world. In addition, there are generalized emergency measures within each country, under different forms, restricting rights and granting special powers to the executive branches to deal with the pandemic.

All of this is understandable. Extraordinary powers are being used correctly and efficiently in some countries. I will share as an example what I have been experiencing since the second week of March in my country, Peru, the first Latin American country to have timely and effectively put in place isolation measures oriented to "flatten" the curve of the increase of new cases and deaths.

However, even though, in general, governments have acted on the basis of legality and legitimacy when adopting such measures worldwide, threats to democratic rights are already surfacing either for authoritarian purposes or from the incorrect understanding of the limits of states of emergency in various cases. Three issues are particularly noticeable.

Firstly, the generalized state of emergencies are fertile ground for some governments to concentrate power, dampening democracy and citizens' rights. In addition, they are being used to legitimize digital monitoring of the physical and even emotional status of individuals. Or authoritarian decisions of gross accumulation and concentration of power, already taking place, using the pretext of the "extraordinariness" of the situation.

Secondly, without going to extremes, there is still a danger of entrapping democratic institutions given the prevailing threats and conditions set by the pandemic. Delicate balances and great clarity of democratic objectives are urgent and indispensable in order for the judiciary, legislative and local governments to function without hindrance.

Within the judicial system, for instance, the use of "electronic filing" of judicial processes; this can and should be accelerated. As this may be a medium-term goal for many institutions, the purpose is that, at least, many actions, proceedings and court hearings can be conducted using digital communications, especially if freedom or other constitutional rights are at stake.

Thirdly, to paraphrase the title of Luis Buñuel's film, "The Forgotten", we should be conscious and vigilant of the situation of refugees and prison inmates.

Besides the obvious necessity to have a set of priorities in aiding people living in poverty and extreme poverty, migrants and refugees also cannot be neglected. In South America, there are more than 3 million Venezuelans dispersed in the region, especially in Colombia and Peru. Their situation today rests, to a great extent, on the capacity of the receiving states, as the international community has not been particularly generous to date.

On the other hand, people deprived of liberty are under the direct responsibility and attention of the state. Inmates are particularly vulnerable due to the overcrowding conditions which, unfortunately, do not usually generate great "social sympathy" in societies where crime is rampant. In the current context, inmates in overcrowded prisons have rioted in different parts of the world for fear of the spread of coronavirus.

There are also overcrowded women's prisons with many indigenous women, detained for their alleged status as drug trafficking "mules", some of whom may have been experienced biased court processes. The release of many of them -most of whom are not "dangerous"- will be an act of justice by itself and, furthermore, a way to decompress prisons in very critical conditions.

Therefore, it is urgent for justice systems to study and grant pardons to people who are about to serve their sentences and have not committed violent crimes. The deportation of foreign prisoners to their countries of origin is another possible short-term response. Other categories that are considered relevant should be part of an immediate inmate reduction plan before serious acts of violence take place.