A prison warden, wearing personal protective equipment due to the COVID-19 pandemic, locks a gate at the Oukacha prison in Casablanca on May 18, 2020. (Photo by FADEL SENNA/AFP via Getty Images)

Loophole for Authoritarianism: Access to Justice in time of emergency

11/20/2020 . By Yasmin Omar

The fast spread of COVID-19 had led governments in the MENA region to take vast protective measures to control and contain the spread aiming to protect as many of their citizens, including the shutting down of schools and public spaces, the suspension of governmental agencies and the imposing of curfews.

Many countries in the region declared health-related states of emergency as a necessary step to combat the spread of the COVID-19. During this period of time, many constitutional rights were put on hold, bearing severe effects on due process and all the parties involved, from judges to prosecutors to lawyers and most of all, the prison population. In some countries, investigations were effectively halted, and courts reduced operations with delays in trials, hearings, and habeas corpus proceedings. In other states, we have seen the of looser implementation of laws on police custody and pre-trial detention, thus contributing to the increase of pre-trial detainees, contrary to social distancing aims to reduce the number of prisoners.

Exceptional procedures have critically impacted the principle of transparent justice, access to lawyers, courts, and effective remedies. They have also affected key legal safeguards developed to counter the already heightened risk of violence, abuse, and torture that takes place in detention. While human rights law and anti-torture laws emphasize concepts of transparency and access to legal counsel, they also call for adequate medical care and preventive safeguards against infection.

Many states in the region have displayed disregard for constitutional protections and right to legal counsel in the process of suspending trials, limiting all court and prosecution activities, and banning prison visits. While legal counsel must be timely, accessible, and confidential, these conditions have been violated under states of emergency in different countries. Now that the world is approaching almost a year of dealing with a global pandemic and its implications, some governments continue to impose emergency restrictions, despite many of their countries returning to normal operations across various sectors. In this piece, I will reflect on how these emergency restrictions affect due process, rights of the detained, and right to legal counsel.

Due process: law and practices

The International Covenant on Civil Protected Rights allows countries to adopt exceptional and temporary restrictions on certain rights that would not otherwise be permitted “in times of public emergency which threatens the life of the nation.” But the measures must be only those “strictly required by the exigencies of the situation.” The Human Rights Committee, which interprets the covenant, has said that the situation would require states parties to “provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation.” The committee stressed that such measures “are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened.” Certain basic human rights cannot be restricted even in times of emergency. These rights include the right to life, the prohibition of torture and ill-treatment, as well as the right to a fair trial and freedom from arbitrary detention.

Some countries in the MENA region had taken measures to ensure maintaining rights to fair trial and access to legal counsel such as Bahrain , Tunisia and UAE by making efforts to hold virtual trials and hearing sessions, allowing lawyers and detainees to be present while cases are reviewed. However, in these situations, it is still unclear if detainees are permitted to have private surveillance-free communication with their lawyers. In other countries, these rights have been severely compromised.

The disruption of the course of justice during a period of broad ban of judicial review has resulted in the disruption of many cases, especially those already detained without access to lawyers. In addition, practices such as enforced disappearance and arbitrary arrest have continued and only increased the severity of the problem of overcrowded detention facilities. Reports indicate that some countries have neglected to test individuals for COVID-19 tests prior to detaining them.

Judicial authorities have used the health emergency state as an excuse to suspend pretrial detention renewal hearing sessions, leading to courts and prosecutions extending detention almost automatically. In Egypt, hundreds of detainees in more than 100 cases had their detentions extended over just three days, without meeting the detainees themselves or their lawyers. In addition to that, the right to receive visits continues to be violated and used to further, at the expense of detainees and their families. In Morocco, Jordan, and Egypt, the right to receive visits in prisons is still arbitrarily controlled by the health emergency. Even after all state operations had resumed normally, the health emergency was still used to compromise detainees’ rights in meeting their families and lawyers.

Detention: endangering lives and refuting access to justice

Detention creates an ideal environment for the transmission of contagious disease. Police officers cycle in and out of detention facilities and care and service providers leave and return daily without screenings. Incarcerated people have poorer health than the general population, and even at the best of times, medical care is limited. Many detainees also have chronic conditions that makes them vulnerable to severe symptoms of COVID-19. Detained individuals are at a heightened risk of infection, given their living situations and may also be less able to observe proactive measures to keep themselves safe. Many cases of death have been reported due to severe prison conditions and the lack of medical care for prisoners.

Despite the fact that some states have ordered the release thousands of detainees, many remain in pretrial detention, denied the right to communicate with the outside world and their lawyers. Even though domestic laws in countries such as Egypt and Morocco provide options for measures, such as substituting pretrial detention with house arrest or travel bans, authorities seem to be reluctant on giving up pretrial detention.

Lawyers have faced difficulties in fulfilling their duties to provide legal counsel. Neglecting to exempt lawyers from curfew while continuing to carry out arrests create the denial to right to timely access to legal counsel. Additionally, lawyers are under risk of infection as they continue working in courts and prosecution offices in the absence of technology-based solutions that would allow for them to carry out their duties remotely. Some lawyers unions in the region have supported their colleagues by providing them with necessary logistical support and providing assistance to their infected colleagues. However, this hasn’t help lawyers who have incarcerated clients; many who have had to take on work in such conditions have lost their lives.

Right to counsel

A number of authoritarian governments in Middle East and North Africa have sets a pattern in violating existing domestic laws and passing sweeping new ones, even prior to the danger of a global pandemic.

The COVID-19 crisis has provide cover, not only for completely jeopardizing the right to access justice in all aspects, but also to continue infringing upon other fundamental rights such as the right to communicate with lawyers and families. Although it is said that arbitrary measures are taken in order to protect detainees from the risk of infection, prison staff such as officers, medical workers, and service staff still create risk for transmission. Organizations have reported the spreading infection among detainees in many detention facilities in Morocco, the UAE, and Egypt.

Some entrenched practices are still taking place during the pandemic. Enforced disappearances and secret prisons are still employed to suppress opponents; Eight doctors and medical workers were arrested in Egypt for criticizing state policy in dealing with the COVID-19. In Saudi Arabia, judicial orders were issued to arrest citizens criticizing the state for its response. It seems that a global pandemic is being deemed as an opportunity to ensure silence.

What needs to be done

In order to remedy some of the damaging effects that global pandemic bears on access to justice and due process, governments in MENA must stop practices that threaten these fundamental rights. Detainees’ rights to receive visits and communicate with families and lawyers should be guaranteed by leveraging technology-based options while providing assurances for privacy. Measures to protect and treat prisoners should be taken, include screening and testing for COVID-19 according to the most recent recommendations of health authorities; providing adequate hygiene, sanitary conditions, and medical services; and reducing density to allow social distancing. Also, it necessary to provide transparent updates on the status of prisons and detention facilities regarding the spread of COVID-19.

Access to justice must be ensured in essential matters such as pretrial detention review and criminal trials through virtual means, when detainees have right to fair counsel. And before all, governments should work to release all individuals who are in pretrial detention for nonviolent crimes, crimes related to freedom of expression, peaceful political activism and incarcerated children, older, and otherwise medically vulnerable people, and caregivers to vulnerable people.

Governments should move quickly to avoid disastrous consequences and massive loss of life in a time of crisis. Ensuring rule of law and protection of fundamental rights is the way to guarantee tranquility and therefore stability amid crisis.