Box 4.10: Ensuring proportionality and human rights protections during a pandemic

Box 4.10: Ensuring proportionality and human rights protections during a pandemic

Despite the unprecedented challenges posed by the pandemic, it is vital that government responses remain proportionate, participatory and in line with established human rights standards. Restrictions, emergency laws and ordinances should be clearly defined by law, without room for ambiguity or misinterpretation by officials to prevent the arbitrary or excessive use of power. This is especially critical at a moment of crisis, when governments are conferred with more authority to allow more flexibility to support their efforts in restoring order. While dealing with a serious threat to health, it is true that some limitations on rights are admitted,176 but the UN’s Siracusa Principles177 identify standards for the justification of such limitations and detail requirements for laws that directly restrict individual freedoms during a public health emergency. For example, limitations should not be more restrictive than necessary for the achievement of the purpose of the limitation.178 As the UN High Commissioner for Human Rights Michelle Bachelet stated, “Emergency powers should not be a weapon government can wield to quash dissent, control the population, and even perpetuate their time in power. They should be used to cope effectively with the pandemic – nothing more, nothing less”.179

notably for care of the elderly, children and other vulnerable populations. Along with the broader contraction of economic activities, many of the tax policy decisions taken to relieve businesses and individuals such as deferrals and special exemptions have seen local government revenues decline further. While cities generally rely on fiscal transfers from national governments, particularly at a time of crisis, many are seeing this support scaled back when it is needed most: in Cape Town, for example, large and unprecedented expenditure items are being pushed down onto the city, at the same time as local revenues are drastically declining. Accordingly, it is essential that local authorities utilize their funds in a manner that will best serve the needs of their communities. Participatory budgeting may offer an effective solution: besides improving transparency in municipal expenditures, it can enhance public engagement in decision-making and ensure investments are channelled where they are most needed, in the process strengthening social cohesion and trust.181

Relaxation of regulations and administrative procedures: Rigid regulations can prevent action when it is most urgently needed, delay rapid responses and make subnational actors fully dependent on the national level at a time when proactive measures by local governments may be vital to contain a multi-dimensional and ever-evolving crisis. Some countries have thus recognized the need for flexibility and eased administrative procedures to enable cities to respond nimbly to the pandemic. In China, for instance, emergency provisions were put in place for the construction of urgent projects such as health facilities, with the usual bidding and procurement requirements relaxed or suspended to prevent delays.182 In Italy, simplified procedures were adopted by 14 regions to ease the usual bureaucratic requirements for smaller businesses, such as deferred deadlines for application submissions.183 Other countries, too, such as Iceland and Slovenia, also allowed municipalities to reorient their budget priorities to meet the changing needs of the pandemic.184 Mexico City also issued a decree for extraordinary actions to fight the pandemic, providing more flexible rules in public procurement processes to speed up contracting.185

The flipside to the relaxation of regulatory frameworks and administrative procedures, however, is the erosion of accountability and increased room for the mismanagement of resources. As discussed in the previous section, notwithstanding the need for cities and countries to react quickly to the new and unexpected challenges of the pandemic, it is vital that oversight and transparency remain in place to ensure that governance structures are not themselves corroded by corruption. Notwithstanding the need for cities and countries to react quickly to the new and unexpected challenges of the pandemic, it is vital that oversight and transparency remain in place to ensure that governance structures are not themselves corroded by corruption