Courts should beware of giving up their role of protecting fundamental rights during the COVID-19 pandemic, according to Tim Fish Hodgson, legal advisor with the International Commission of Jurists, Africa. Interviewed online on how COVID-19 regulations were impacting on socio-economic rights wordwide, he said that in many countries, courts were no longer as willing to consider cases involving infringements of rights. They took the view that, under an emergency situation, judges 'need to defer'. Urging courts not to take this stance, Hodgson said judges around the world need to make sure that court systems operate as fully as possible, especially in response to people's claims about right's protection.
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In a new online interview, the International Commission of Jurists, Africa, legal advisor, Tim Fish Hodgson has warned of a developing trend among judges in many parts of the world under the current pandemic.
Hodgson who is based in South Africa, but works globally, was in discussion with ICJ Africa's Shaazia Ebrahim on how COVID-19 was impacting on socio-economic rights around the world.
He says the trend in the courts that concerns him is seen even in countries with court systems that normally allow easy access to back up their rights. Judges were now taking a different position, he said. Because of this emergency or disaster, judges think ‘we need to defer’.
They think: ‘We need to show extra respect and be careful not to interrupt or overrule decisions by the executive.’ But the effect of this, especially in the absence of parliament, and when the executive arms of countries are ruling by decree, is that ‘there really is no last resort protection.’ It is ‘very hard to get into court to claim rights.’ Courts and governments around the world need to make sure that court systems operate as fully as possible, he said, especially in response to peoples’ claims about rights protection.
Government also had a duty to protect socio-economic rights. ‘We are seeing an extension of executive power in an unprecedented way. Parliament’s role is greatly diminished when it comes to setting regulatory framework or checking that the executive, the police and the military respect peoples’ rights.’
He said there needed to be more direct engagement with civil society by government; civil society was often simply ignored by government during this period. The approach by government has usually been to criminalise non-compliance with lockdown regulations but this is not the only way to ensure compliance, he said. In addition, criminalization under COVID-19 is often the criminalisation of poverty. Many people can’t afford to stay at home and those who have to go out and work and break curfews to do their work are often ‘very poor or marginalised people’.
He said he had yet to hear the government speak out clearly about the fact that enforcement officers had to respect the law themselves.
‘We need more social assistance, food and money, to help poor people. These are problems all over the world. As the ICJ we are working to address these problems of human rights caused by COVID-19 restrictions.’ There were problems if a country had a public health problem and yet stopped people from accessing the health care system. The result was that ‘some people were admitted to hospital only when they are seriously ill and unlikely to get better.’
Though many rights have existed for a long time in international law, they are often simply not considered to be rights. Access to health care, public provision of housing for the homeless are examples of socio-economic rights that need to be taken more seriously as ‘binding rights’. Non-discrimination is not only international law and covered in conventions, but it is also best practice, he said. People with disabilities were usually not given proper help, regardless of international law on the subject. For example, a blind person in the work place typically finds no accommodation has been made for that person’s need to touch other people to make their way round the work place.
Discrimination against foreign nationals is rife, he said. In international human rights law that discrimination is impermissible. Human rights apply to everyone regardless of their nationality and regardless of their documentation status. All around the world, however, these rights were not automatic and people have to go to court to enforce them.
Health care in prison was also a problem everywhere in the world. People have not been allowed into prisons to visit: journalists, human rights activists and lawyers were all kept out, and so prisons have become ‘a disaster waiting to happen in South Africa and elsewhere, with many case studies showing this in North Africa in particular.’