07 Dec COVID-19 and Africa Symposium: “Jurislimitation” In Litigation In the Context of COVID-19, the New Normal?
[Justice Moses Hungwe Chinhengo is judge of the Lesotho High Court and a Commissioner of the International Commission of Jurists.]
COVID-19 has altered every aspect of our lives in a very short space of time. As South African President Cyril Ramaphosa has observed, “the world we live in will never be the same”. As we adapt to the “new normal”, it is necessary to ask questions about the role of judicial officers in the ongoing COVID-19 context. Has our role changed? Should judges be more deferential to the executive during times of crisis and emergency? Or should judges play a greater role in protecting human rights in context of the social and economic devastation wrought by COVID-19?
These questions are of importance both in countries experiencing significant COVID-19 transmission rates and those who have not yet experienced the brunt of the pandemic. As former Liberian President has suggested, “Coronavirus anywhere is a threat to people everywhere”.
International law and the right to effective remedies
International law places obligations on States to respect, protect and fulfill human rights. The responsibility of all three branches of government – the executive, the legislature and the judiciary – is engaged by these obligations, often in addition to similar domestic constitutional obligations. The UN Committee on Economic, Social and Cultural Rights has warned that these rights – to an adequate standard of living; work; housing; health; food; water; sanitation; education; and social security – have been put at serious risk as a result of COVID-19.
As judicial officers, our role in the realization of rights may be somewhat limited but it is meaningful and important. In the case of violation of such rights, courts around the world are required to provide access to effective remedies and reparation. Summarizing existing international standards relating to the right to an effective remedy in the context of social and economic rights, the International Commission of Jurists has observed the following:
“It is a general principle of law that every right must be accompanied by the availability of an effective remedy in case of its violation. For a remedy to be effective, those seeking it must have prompt access to an independent authority, which has the power to determine whether a violation has taken place and to order cessation of the violation and reparation to redress harm.”
The judiciary must therefore be available and accessible – whether online or in person – to the general public even during a public emergency such as the one brought on by COVID-19. But in addition to being available and accessible to hear complaints and petitions, the judiciary is obliged, where appropriate to ensure effective remedies, which may include by the ordering of the “cessation of the violation and reparation to redress harm”.
Separation of Powers, Polycentricity and Jurislimitation
In practice the provision of judicial remedies for violations of social and economic rights is often complicated by judicial understandings of the separation of powers. The separation of powers implies both the functional separation of branches of government, but also interaction between the different branches as “checks and balances” on each other’s power.
The judiciary’s major check on the executive and the legislature’s powers comes in the form of judicial review for compliance with the rule of law and human rights. By now, whether before, during or after COVID-19, it is settled that this power of judicial review can and should extend to cases relating to social and economic rights. Nevertheless, because the litigation for the violation of social and economic rights may sometimes raise budgetary and policy concerns, judges around the world have been somewhat cautious in the extent to which they interfere with multi-factoral polycentric decisions of the State relating to social and economic policy. This is often articulated by judges as according due “deference” to the legislature and the executive.
In the context of COVID-19, another layer of complexity is added. Given the urgent need for speedy response measures to the pandemic, judges have exhibited caution in interfering with decisions of the executive when implementing “lockdown” and other measures to combat the spread of COVID-19. While, to an extent, this understandable, even in the context of declared emergencies, States retain the obligation to “ensure that any person whose rights or freedoms … are violated shall have an effective remedy” including judicial remedies. It is therefore clear that “no emergency measure should be beyond some degree of judicial review”.
However, despite possessing the power and obligation to intervene, even prior to the COVID-19 pandemic, domestic judges have sometimes displayed a reluctance to make rulings against governments relating to violations of social and economic rights. Former South African Constitutional Court judge Kate O’Regan, for example, has cautioned judges to avoid a “jurisprudence of exasperation” by which judges “express exasperation with the state of affairs in the country” in their decisions instead advocating for “a jurisprudence of accountability that ensures that the responsibility for government remains the legislature and executive’s, but insists they account, if challenged, through the courts”.
Carol Ngang has argued, correctly in my view, that this cautionary approach should not be taken too far, lest it eliminates the impetus necessary to effect social change and produce legal protections envisaged – indeed required – by social and economic rights. The difference between “exasperation” and “accountability” on this view is “in the degree of scrutiny that the courts may apply in testing government action in relation to its obligations”. At some stages, when the intervention of the Court is particularly necessary and the violations of rights particularly acute, a more “exasperated”, though still cogently reasoned response may be required of judicial officers in the execution of their obligation to act as the guardians of human rights.
Overall, an incorrect balancing of “exasperation” and “accountability” approaches results in a self-imposed and higher degree of deference than is mandated by the separation of powers to the detriment of human rights. Ngang calls this “jurislimitation”.
Jurislimitation in the context of COVID-19
As the Chairperson of the Africa Commission on Human and Peoples Rights has observed, COVID-19 has:
“highlighted the pervasiveness of the socio-economic deprivations affecting the masses of our people. It has irrefutably established that the pervasive poverty and deepening inequalities that constitute the structural fragilities of our societies are attributable to these socio-economic deprivations – lack of access to health care, water, sanitation, food, decent housing, education and sustainable sources of livelihoods and gender oppression.”
In this context, one might have expected more, not less, judicial intervention in order to secure the protection of social and economic rights. And indeed, there has been some:
- The Lesotho High Court has ordered the government to provide health workers with the necessary PPE describing its failure to provide such PPE as “disturbing”.
- The Malawi High Court struck down lockdown regulations in part on the basis that it failed to simultaneously provide adequate protection for the right to social security because relief measures taken fell “significantly short of the social protection floor guarantees on health and income security”.
- The Namibian High Court, while acknowledging the importance of protecting worker’s rights in the context of COVID-19, struck down lockdown regulations because they restricted rights and had been promulgated without compliance with relevant legal and constitutional provisions.
- South African High Courts, have intervened in a number of cases including to: ensure continuation of school feedings schemes; allow for the operation of early childhood development centres; require social assistance provided to be extended to asylum seekers; and protect against continued unlawful evictions.
However, by and
large, it is difficult to avoid the observation of human rights defenders and
lawyers across much of the African continent – and indeed more generally – that
judges have become increasingly deferent and more prone to retreat into
self-imposed “jurislimitation” in the context of COVID-19. This has happened at
a time when the protection that Courts can provide is especially vital.
Speculating on the possible trajectories of social and economic rights litigation in the context of COVID-19, Professor Aoife Nolan postulates the possibility that the scale of the challenge presented by the pandemic might “make a more imaginative and nuanced set of judicial reactions possible”, though also warning of the possible risk of a “general spirit of judicial deference” by courts.
Courts should not assume their intervention will be received as “oppositional”. As Jan Petrov has argued in the context the Czech Republic, judicial interventions can:
“improve the effectiveness of emergency governance by increasing the feasibility and legitimacy of the emergency measures and thereby supporting voluntary compliance, which is crucial for defeating the new coronavirus.”
Understood in this light, the interventions of Courts in Lesotho, Malawi, Namibia and South Africa referred to above, should be understood not as obstacles to States COVID-19 responses but as aides to the effectiveness and legitimacy of such responses.
In this way, as the pandemic continues into 2021, apparently “exasperated” responses from judiciary might be necessary to assist states in both combatting COVID-19 and “building back better”. The continuation of overly deferent “jurislimitation” might, therefore, both amount to a failure to provide effective remedies for violations of social and economic rights, and also compromise States’ ability to legitimately and effectively respond to the pandemic.