LDH Open Letter: Coronavirus Powers Must Comply With the Rule of Law

As Parliament is about to grant special powers to the government, the Belgium League of Human Rights (LDH) has sent an open letter to MPs and to the government to recall that respect for Human rights and the rule of law is vital.

Brussels, 26 March 2020

Dear Members of Parliament,

Dear Prime Minister,

Dear Ministers,

The Belgium League of Human Rights (LDH) is very much aware that we are facing a major Health crisis, which requires the implementation of exceptional measures to fight the spread of Covid-19, curb the epidemic and safeguard the ability of health services to face the virus. As LDH recently recalled, the right to life and the right to health are fundamental rights. States have the obligation to protect these rights in the context of the current coronavirus epidemic.

However, LDH must also recall that, as part of the enforcement of such obligations and of the organization of such exceptional measures, all Sates must ensure compliance with rights, freedoms and the rule of law.

Firstly, ensuring compliance with the rule of law, rights and freedoms requires acknowledging the existence of a significant gap between the current functioning of our institutions and what should be the normal functioning of a democracy.On the one hand, the allocation of roles between the government and the Parliament was deeply affected, at the level of the federal bodies, by the adoption of decrees and ordinances granting special powers. It will soon be the case at a federal level, through the passing of a law that will empower the King of Belgium to take measures against the spread of the coronavirus. On the other hand, the already existing measures (provided by the decrees of 13 and 18 March 2020) include a significant limitation of rights and freedoms. Although the bill, which will be submitted for a vote today, does not in itself include the restriction of rights and freedoms, it does give the government permission to pass measures that could include such restrictions.

The adoption of additional containment measures, including the limitation of contact between members of the same family, the closing of schools, universities and higher education institutions, as well as the “adaptation” of the functioning of the judicial power, include, by definition, restrictions on the following rights: the right to a fair trial (Article 6 of the European Convention of Human Rights), the right to private and family life (Article 8 of the ECHR and Article 22 of the Constitution), the right to freedom of religion (Article 9 of ECHR and Article 19 of the Constitution) and the right to freedom of assembly and association (Article 11 of the ECHR and Articles 26 and 12 of the Constitution). It might also include restrictions on the right to an effective remedy (Article 13 of the ECHR). These measures may also breach the principles of equality and non-discrimination (Article 10 and 11 of the Constitution, Article 14 of the ECHR), as they might disadvantage certain people or groups more than others (even though these measures appear neutral).

Secondly, if we accept the gap between the current working of our institutions and what should be the normal working of our democracy (including the protection of our rights and freedoms) in order to respond to this emergency, it is vital to avoid the exception becoming the rule, and it not become easier to exploit our fears about the epidemic. If we want the already weakened rule of law to survive, it is essential to make a clear distinction between what is urgent and what is normal. First, this means we must recall the principles that govern the functioning of our democracies, and the reasons for deviating from these principles. Second, it is essential to always specify, clearly and in detail, the objectives pursued by the exceptional measures that are taken, and to stick to these objectives. The special powers granted as part of the fight against the epidemic should not be used to pursue other policies. Third, such exceptional measures should be strictly limited in time. The decrees providing special powers should necessarily specify the duration of the implemented measures. This duration should not exceed what is necessary to fight the spread of the coronavirus. Fourth, regarding the potential extension of the authorization granted to the King to use special powers, it must be conducted in compliance with the Constitution and by legislative means, as the Legislation Section of the Council of State recalled. Fifth, it is essential to comply with the conditions established for the use of special powers, as recalled by Legislation Section of the Council of State in its opinion issued on 25 March 2020.

Thirdly, in exceptional situations, the supervision of the government’s work by the Parliament, independent judges, medias and civil society is essential. Regarding the different special powers mechanisms and the exceptional measures that were adopted by the Royal decrees of 13 and 18 March 2020, every effort must be made to allow Parliament to exert a certain control on the exceptional measures decided by the government. This parliamentary controlshould be effective before expiry of the period of special powers, and political control mechanisms should adapt to the particular situation we are facing.

Likewise, it is essential to safeguard the right to effective legal protection and to ensure the judicial oversight of such exceptional measures. The right to a fair trial, the right to an effective remedy and the right to a defense, as well as the right to the non-retroactivity of criminal sanctions (and the legality of the latter) must be guaranteed. In this context, LDH shares its concerns regarding the articles 5, §1 and 7 of the bill that would grant special powers to the King of Belgium, allowing him to “adapt” the organization of courts, tribunals and public prosecutors, as well as the rules on competence and procedure. This authorization granted to the King is in itself not properly regulated and very dangerous. Indeed, it gives the government powers to completely “adapt” the judicial power.

As well as taking into account the “rights of the parties”, lawmakers must specify the scope of these powers, and set out stricter conditions for their use. As the Legislation Section of the Council of State stated in its opinion of 25 March 2020, it is necessary to recall that these “adaptations” must be made in compliance with the fundamental principles of independence and impartiality of the judicial power, and in accordance with the rights to defense of the parties. This law aims to grant the government the power to change the procedure and the competence of the Council of State and administrative jurisdictions. As things stand, this is very dangerous. It is essential that lawmakers specify the objective they are pursuing with such a law. These powers must be regulated so as to avoid violations to the right to effective legal protection, enshrined not only in the Constitution, but also in European and International law. Last, it is essential to protect, if not strengthen, the ability of the media to fulfill its role as a watchdog of democracy. It is also very important to protect the ability of the civil society to monitor the work of the government. Therefore, transparency and the provision of Covid-19-related data must be guaranteed.

Fourthly, everything must be done to prevent these exceptional measures to involve unjustified restrictions of rights and freedoms. The serious limitations on the right to privacy and the right to education, among others, should meet the requirements of national and international laws. First, the legal basis for such limitations should come from a legal text that is clear, detailed, general, non-retroactive, available and published. Second, such measures must pursue a legitimate objective (protecting Health services, public order, rights and freedoms). Third, these restrictions should be proportionate. Each measure also should achieve the legitimate objective that is set out by its author and should be useful, in the sense that no other measure less likely to restrict rights and freedoms was available. Last, a proper balancing of interests must be carried out.

Fifthly, efforts should be made to prevent such measures from weakening the required level of protection of the State regarding rights and freedoms. For this purpose, Article 3 of the law on special powers aims to limit the scope of these powers, by providing that their use cannot undermine the existing social protection and the household purchasing power. In principle, the protection and realization of economic, social and cultural rights falls within the competence of lawmakers (not of the executive power). In the current context, and given the exceptional circumstances and the scope of the powers granted, lawmakers should specify that these measures should comply not only with the “standstill principle” (which prohibits any unjustified setback for economic, social and cultural rights), but also with other most demanding norms.

Sixthly, such exceptional measures also need to be implemented in order to address situations of inequality experienced by the most vulnerable people, as theses situations are caused or aggravated by the current health crisis. Similarly, such measures should also guarantee safe and decent working conditions for all workers, and particularly for the most vulnerable.

In times of crisis, respect for all fundamental rights is essential, and LDH intends to continue to fulfill its role as a watchdog of democracy. The rule of law, respect for human rights and basic freedoms are (and will remain) the framework that governs the use of powers. They should constitute the objectives of these exceptional measures and guarantee the right to life and to dignity for all.