Note: This piece originally appeared in Spanish in Justicia en Las Américas. To read the original piece, click here.
This article briefly analyzes the restriction of civil and political rights in Latin America within the framework of the various exceptional—but justified—emergency measures adopted to confront the worldwide COVID-19 pandemic. In writing it I have relied on excellent national notes written by my DPLF colleagues and some distinguished invited experts; their articles (in Spanish), appear via links at the end of this article.
Before beginning on the subject, please allow me the following reflection: the COVID-19 pandemic and the restrictive measures adopted across Latin America have increased insecurity, suffering and hunger for millions across the region. Although restrictions on free transit, freedom of work, and freedom of assembly, among others, are legitimate—given that social distancing is the only weapon against this virus—we must be aware that millions of people in Latin America survive due to their work in the informal sector. It is unacceptable that for many, the only options during this pandemic are to be killed by hunger or by COVID-19. For this reason, following this emergency, the region must resume a debate about the relevance of a social or welfare state, without corruption, that can provide basic public services including healthcare.
Almost all governments in Latin America—with the exception of Nicaragua—have taken exceptional measures to stop the uncontrollable spread of COVID-19, be it through declaring states of emergency or public health emergencies. Faced with this, there is a valid fear and mistrust that these measures could exacerbate abuses of power or increase human rights violations. This mistrust is understandable, considering the continent’s terrible history of civil and military dictatorships utilizing states of emergency to persecute political opponents and social leaders, and of regimes who, thanks to the abdication of ordinary justice—and the leading role of military courts—were able to commit serious human rights violations and acts of grand corruption with impunity.
This fear and mistrust is also understandable when confronted with the governing style and narratives of some presidents currently in power. This is the case in the United States with Donald Trump; in Brazil with Jair Bolsonaro; and in El Salvador with Nayib Bukele. In this last case, the Salvadoran president already has the appalling track record of taking over the chambers of the country’s legislative assembly, with the help of the armed forces, to intimidate legislators and pressure them into approving a loan to combat crime.
On the other hand, all democratic legal frameworks in the region contemplate cases of constitutional exception in the face of unforeseen or emergency situations including natural disasters, warfare, major social unrest, and epidemics, among others. In such cases, among other possible consequences, the executive can be granted exceptional powers that permit the restriction of fundamental rights regarding security, public budgets, public health measures, market regulation, and border control, among others. The executive is also granted special powers in regards to the armed forces and police.
As a counterweight to these constitutionally granted executive powers, national legislatures also typically hold various types of parliamentary political control: from obligations to be duly informed, to approving ex post or ex ante the states of exception. Another key counterweight is, without a doubt, freedom of expression, the press and information, none of which form part of the list of fundamental rights that can be restricted or suspended during states of exception. The media and social networks are essential for making visible and denouncing possible abuses of power. Precisely for that reason, some authoritarian rulers, like Bolsonaro in Brazil, or Daniel Ortega in Nicaragua, have restricted—or tried to restrict—these freedoms.
Another essential counterbalance to these executive powers is a more recent democratic achievement in Latin America: judicial controls—which can now be exercised in most countries across the region—over the actions of law enforcement, as well as measures adopted by governments that, even in a state of emergency, may be unconstitutional or constitute violations of international human rights standards.
This is the case in Brazil, where the country’s Supreme Federal Court invalidated a recent presidential decree that restricted access to public information, and issued a precautionary measure ordering the Bolsonaro administration to clarify the measures taken by the federal government to comply with the COVID-19 prevention and mitigation measures recommended by the World Health Organization (WHO). It was also the case in El Salvador, where the Constitutional Chamber of the Supreme Court issued Resolution 148-2020, granting precautionary measures in favor of people who had been detained in “containment centers” in enforcement of the country’s mandatory quarantine. The precautionary measures ordered, among other things, that some of the people detained be allowed to carry out the quarantine in their residences, while respecting certain sanitary protocols.
Without a doubt, another advancement in Latin America’s judicial landscape, among other advances in human rights and democratization, is the narrowing of military jurisdiction to encompass only crimes committed in the course of military work and by members of the armed forces. This has been one of the most significant contributions of the Inter-American human rights system in strengthening the rule of law in Latin America.
However, these counterbalances to the exceptional powers invoked to confront this pandemic have the potential to be seriously weakened in the face of authoritarian rulers like those in Brazil and El Salvador; or when faced with networks of corruption, like those that have been denounced in Guatemala. Or, quite simply, they could be nullified by dictatorial regimes like those in Venezuela or Nicaragua. For these reasons, in the context of authoritarian regimes such as the many found throughout Latin America, the conduct, attitude and discourse of some political leaders have the potential to manipulate these exceptional powers and take advantage of them to persecute or harass political and social opposition, generate greater corruption via the relaxing of controls on public spending, attack independent journalists, and/or withhold access to public information. Or—as is the case with President Andrés López Obrador in Mexico, Jair Bolsonaro in Brazil, and Donald Trump in the United States—to irresponsibly deny, on behalf of the federal government, the severity of this pandemic, and encourage citizens to violate the social isolation recommendations of the WHO. In some cases, certain executive powers have even opposed measures adopted by individual states, and in doing so generated—unnecessarily—confrontations between federal and state governments.
As for the restriction of political rights, it does not appear to be part of constitutional regulations, even within the current context, with the exception of Bolivia: general elections originally scheduled for May 3 have been suspended, and are expected to take place between July and September of this year. This postponement is particularly worrisome in a country where these elections are crucial for returning to democratic normalcy. On the other hand, in the cases of Venezuela and Nicaragua, there continues to be serious violations of fundamental rights, including political rights, which have only been further exacerbated by the pandemic. In addition, the Ortega government has not adopted any containment measures to stop the spread of the virus.
Another concern is the possibility that political rulers and public officials—civil or military—view this public health emergency, within which they are granted certain expansions of power, as an opportunity to divert said power and commit serious acts of corruption. As the Inter-American Commission on Human Rights (IACHR) pointed out in its report “Corruption and Human Rights,” corruption has a “multidimensional impact… on democracy, the rule of law, and particularly the enjoyment and exercise of human rights in the continent.”
In this sense, the situation in Guatemala is of particular concern. Especially alarming is one of the emergency measures adopted by the government that opens a line of credits that “will be granted without restriction to politically exposed persons,” which could benefit ministers, deputies, or leaders of political parties, and does not seem to serve the purpose of alleviating the economic hardships that the poorest sectors are facing. There is also cause for concern in the case of Mexico, where unfortunately there remains a high risk that officials and individuals will take advantage of the public health emergency to make illegal use of the additional resources they are granted. At the moment the federal government and all state governments have access to funds with looser restrictions, reduced controls, and broad discretion for spending decisions—all within a context of weak institutionality and little transparency.
Furthermore, in some countries such as Colombia, civil society organizations have warned of the particular vulnerability of persons deprived of liberty in the context of the pandemic, given the precariousness of the prison infrastructure. On March 21, protests and riots occurred in various prisons across the country, leaving 23 inmates dead.
Finally, we must also remain alert to certain “cyber-security” measures adopted by some governments. In Ecuador, for example, the government issued Executive Decree No.1017, authorizing the use of “satellite and mobile phone platforms to monitor the location of people in sanitary quarantine and/or compulsory isolation, who fail to comply with the established restrictions, in order to put them at the disposition of judicial and administrative authorities.”
In response to the decree, Ecuador’s Constitutional Court advised in Opinion 1-20-EE/20A of the need to: “ensure that the use of these technological measures… does not serve as a means to violate constitutional rights and is applied only to individuals who have been identified by the health ministry as needing isolation or other measures of a similar nature.” In the same vein, international human rights organizations issued a joint statement to emphasize that it is essential that the use of these technologies be limited “both in terms of purpose and time, and that individual rights to privacy, non-discrimination, protection of journalistic sources and other freedoms be rigorously protected.”
For more country-specific information, you can review the individual country memos (in Spanish) here:
