The webinar series is a response to the need to exchange ideas and share some of the lessons learned from the European- including Norwegian- and Indonesian contexts, as Covid-19 continues to spread globally. The world is moving towards a situation that is termed as “the new normal”. The Webinar Series was organized by the NCHR and the NCHR Alumni.
Measures restricting basic rights and freedoms
There is no clear definition what “the new normal” is, but thus far, the Covid-19 era has seen many human rights implications as governments implement various measures, many of them restricting basic rights and freedoms, to curb the spread of the virus and prevent fatalities.
Two-part Webinar series addressing the human rights impact of Covid-19
The Norwegian Centre for Human Rights (NCHR) supported a group of its Indonesian alumni who held the first of two webinars on the human rights impact of Covid-19. The event saw the presentations from Professor Gentian Zyberi, Head of NCHR and Member of the UN Human Rights Committee, Iver Ørstavik Senior Advisor of the Rafto Foundation, and Muktiono, SH., MPhil., human rights lecturer from University of Brawijaya, Indonesia. Muktiono, as well as the moderator, Indria Fernida, were alumni of University of Oslo’s Master’s program on Theory and Practice of Human Rights. Indria is currently the Regional Program Coordinator of the Asia Justice and Rights (AJAR).
On the second webinar The Indonesian alumni of the Norwegian Centre for Human Rights (NCHR) with the support of the Centre held the second of the two-part Webinar series in Human Rights in the New Normal. It focused on what should be done to ensure that the new normal is built upon human rights standards and principles, especially with relation to the particular needs of vulnerable groups. Professor Bård Anders Andreassen and Professor Stener Ekern from the Norwegian Centre for Human Rights, University of Oslo and Henry Thomas Simarmata from Indonesian Institute for Law and Human Rights gave insightful remarks, primarily rooted on their knowledge and experiences in Norway and Indonesia respectively.
News from Webinar 1: Human Rights and Democratic Standards at Risk in the Time of Covid-19
Professor Zyberi opened the discussion in this first webinar 2 June, by highlighting the challenges the pandemic has posed to democracies, one of the more significant being upholding the rule of law and the obstacles in exercising the necessary checks and balances in the trias politica construct. In most democratic contexts, the executive has had to implement policies such as restricting mobility, and while in moments like this supervision by different branches of the government crucial to minimise abuse of power and violation of rights, the restricted mobility obstructs such scrutiny.
The pandemic caught the global society unprepared
Zyberi outlined that while generally all countries were caught unprepared by Covid-19, the UN Human Rights mechanisms, all ten treaty bodies and 56 special procedures, have issued statements to ensure that the response to the pandemic will not limit human rights in a way that violates the permissible restrictions or derogations (in case a state of emergency is put in place).
Human Rights must be considered when adopting measures
The UN Human Rights Committee issued an important statement concerning derogations to the ICCPR under Article 4. Professor Zyberi pointed to the two fundamental principles of human rights that must be considered by States when adopting measures to counter the pandemic, namely substantive equality and non-discrimination. States have to take into account the particular vulnerabilities of certain groups in designing the response to the pandemic, including migrant workers, asylum seekers, and women.
Too early to draw lessons?
Iver Ørstavik outlined that human rights have actually been in turmoil for a while, and this pandemic only highlights the different facets under threat. He agreed that initially the pandemic caught the global society unprepared, and it is too early to draw lessons from how different contexts react to the biological, systemic, and economic shocks Covid-19 gave to the world.
Health care better with more robust public systems
However, thus far, we can see that in response to pandemic like this, universal health care is better than private insurance-based, and that countries with more robust public systems and resources tend to fare better.
In terms of the European Union, Mr. Ørstavik notes that the pandemic shows that there is not enough health infrastructure within the union, which results in seeming lack of coordinated regional response to the pandemic.
Indonesian experience
Elaborating on the Indonesian experience, Muktiono also reaffirms the state of unpreparedness of the government of Indonesia (GOI) when the pandemic hit, where effective response is further hampered by its huge and complex bureaucracy.
Worse still, the GOI’s response has been encumbered by unchecked sectoral ego that leads to ineffectiveness and inconsistencies at different levels of government (local-national) and even between institutions.
Difficult designing effective responses
Designing effective responses is also further made difficult by the lack of an integrated data center, making evidence-based policy near impossible. So far the policies are made without participation and inclusion of relevant parties. These policies seem to have little effect, as the fatality rate reaches 5.9 % of all detected cases and the Ministry of Finance projects that the number of people below the poverty line will increase from 1.89 to 4.86 million, unemployment will be at the range of 2.92 to 5.23 million people, and the economic growth will be between 2.3 - -0.4% by end of 2020.
Presently, the policies in response to Covid-19 can be categorized into three clusters, namely health emergency management, social safety net, and economic security, with the social safety net in form of various social assistance programs taking a major chunk of the IDR 677,2 trillion/NOK 447,5 billion budget at 30 %.
However, the supervision of how the funds are used is lacking and there is no clear monitoring on the effectiveness of the overall programs. Supervision is further made difficult with the weakened anti-corruption commission and civil society organizations under constant attacks by different groups, including those seemingly affiliated with the State.
Human rights defenders repressed also during the pandemic
Human rights defenders in Indonesia during the pandemic also continue to be subjected to repression, arrest, and criminalization by State actors. Some of them have had their social media accounts hacked without any investigation against the perpetrators, silencing critical voices.
The new normal in Indonesia
The new normal in Indonesia seems to comprise of unclear policies leading to opening the economy without fulfilling the requirements of sufficient decline in positive case and fatality rate, while the public is distracted by various controversies and critical voices are silenced by more restrictive policies. In the meanwhile, the GOI including the parliament continues to pursue its pre-Covid-19 legislative agendas that further places under attack labour rights and environmental sustainability through bills such as the Draft Omnibus Law on Job Creation.
In the question and answers session, some issues were raised, especially with regard to state human rights obligations. This is especially in view that some states are taking restrictive measures by exercising emergency measures to a different extent, such as Poland and Hungary.
Operating within the allowed derogation under emergency
Professor Zyberi outlined the importance of operating within the allowed derogation requirements even under emergency situations. The stipulations for derogations in time of emergency within the Council of Europe framework can be seen in the Guide on Article 15 of the European Convention on Human Rights; the factsheet of the European Court on Human Rights on “Derogation in time of emergency”.
Further relevant references can also be found in the Venice Commission “Compilation on States of Emergency” of 16 April 2020. The text of derogations entered by State parties to the ECHR provides insights on what rights are most affected during such emergencies.
Guidance by the United Nations in terms of the Covid-19
In terms of the Covid-19 guidance by the United Nations, it is important to consider the policy papers issued by the UN Secretary-General and the various statements by UN Human Rights mechanisms during this period. Guidance for labour rights during the pandemic, for example, can be seen in part in the UN Committee on Economic, Social and Cultural Rights (UNCESCR)’s “Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights". Para. 16 of this UNCESCR statement captures best the response of the State to protecting workers’ rights:
All workers should be protected from the risks of contagion at work, and States parties should adopt appropriate regulatory measures to ensure that employers minimise the risks of contagion according to best practice public health standards. Until such measures are adopted, workers cannot be obliged to work and should be protected from disciplinary or other penalties for refusing to work without adequate protection. In addition, States parties should take immediate measures to protect the jobs, pensions… and other social benefits of workers during the pandemic, and to mitigate its economic impacts through, for example, subsidizing wages, providing tax relief and establishing supplementary social security and income protection programmes.
For more elaborate guidance on socio-economic concerns caused by the pandemic, one should also refer to the UN Security General’s policy brief on the socio-economic response, especially section 3 and item 7 in the Annex.
The discussion also underlines the importance for all policies in the new normal should be science driven, and the government and human rights defenders take an active role to not empower and refute false news and conspiracy theories that will further detract the society from responding to the pandemic in a manner that protects the rights of all.
Not to be cited, please contact the speakers for direct quotes. Further queries on this can be made to alumnindonchruio@gmail.com
News from Webinar 2: Building a New Normal Based on Human Rights Standards and Principles
Professor Andreassen kicked start the discussion on the second webinar 16 June, by addressing the concept of the “new normal”. The “new normal”, according to him, is going to be like the “old normal”, but with additional factors to respond to the pandemic, including social distancing, wearing mask in public, etc.
However, it is important to note that in this time of pandemic countries are not at the same level of crisis: some countries have managed to flatten the curve while others are still reaching their peak.
Yet indeed the pandemic exacerbates existing inequalities and other human rights issues. Political response to the pandemic has weakened some international institutions, such as the USA’s decision to retract its support from World Health Organization (WHO).
An opportunity to re-evaluate human rights problems
The initial lack of response from the European Union to the Covid-19 hard-hit member States, especially Italy, also presents the regional organization with the need to revisit its existing systems to respond public health emergencies. In fact, Professor Andreassen underlines that although the pandemic worsens pre-existing conflicts and human rights problems, it also presents the opportunity for governments at local, national, regional, and international levels to re-evaluate the existing policies and practices and establish new ways of governance. These include, for example, building a safer, more inclusive, and sustainable economic ecosystem and establishing procedures that enables more effective global response for the next global health emergencies.
The importance of human rights legal system
Covid-19 has shown the importance of human rights legal system to ensure that pandemic response will be compliant to human rights principles. It is also crucial for the response to be implemented transparently so that the human rights compliance can be monitored from the design to implementation level.
Professor Andreassen acknowledged that some countries under authoritarian regimes or in a transition to democracy have abandoned this requirement altogether. Whereas, as he argued, at the time when no one actually knows how to handle this pandemic (as we as a society has never experienced this before), the upholding of human rights principles become especially essential and should be the basic benchmark in deciding any policy.
The state must provide basic protection and open public discourse to discuss the situation, including with experts in various sectors such as public health etc., in order to be able to formulate the response or amend a measure if it turns out to be not effective to overcome the situation at hand.
Anthropological perspective on the Covid-19
Taking the anthropological perspective, Professor Ekern impressed that while people have rights as individuals, Covid-19 should also be seen from communal perspective. The protection of public safety depends on the capacity of the State to design measures and govern the population.
He recalls the Spanish flu pandemic 100 years ago, with a side note that the only reason it is called “Spanish flu” is because Spain was the only place then with enough freedom of speech to allow open discussion on the public health emergency. Professor Ekern recalled that in the USA, the local governments who decided to close its borders- restricting the mobility of their population- were the ones who spared the population from massive number of deaths due to the Spanish Flu.
Coordinated balance between state’s obligations and individual rights
At the end of the day, he observed, the new normal entails a coordinated balance between the state’s obligations, including to preserve public health, afford special protection to groups who require it due to their vulnerabilities, and protect and respect individual rights. There will always be a moral dilemma that has to be solved between giving people freedom in which they have a right not to suffer unduly from the state’s authority and the state’s duty to protect them as a group.
Indonesian context and vulnerable communities
Mr. Simarmata in his presentation brings forth the Indonesian context, focusing on specific vulnerable communities in Indonesia such as small holders or communities including indigenous groups, seasonal workers, and community living as commons.
He firstly recalled that international human rights instruments and their authoritative interpretation including UN General Comments (for example No. 20 of CESCR, No. 18 of CCPR on discrimination) prohibits discrimination. The UN Special Rapporteur on the Right to Food on 22 May 2008 before the UN Special Session also emphasized that “….any policy which has been proven to impact negatively upon the right to adequate food, or upon the right of every individual to be free from hunger and malnutrition, constitutes a violation of these rights, and must be suspended immediately or, at a minimum, urgently reviewed….”, emphasizing the requirement maintaining basic rights in policies designed by the State. This prohibition of discrimination is also enshrined in Indonesia’s own Constitution and laws.
Difference between urban and rural contexts
When considering the context of Indonesia, Mr. Simarmata asserted, one has to take into account the various contexts such as its decentralized government, the various types of commons, and the inherent differences between urban and rural contexts. Different regions in Indonesia are at a different point of the curve, and what is apparent from the infection rate, the country will be in this “new normal” state for the long haul.
Indonesia itself is no stranger to natural disasters, he cited the post-tsunami Aceh and post-earth quake and Merapi eruption in Jogja as examples, but underlined that the national-scale of the pandemic and how much the social security and public health measures absorb the state resources makes Covid-19 a novel experience for Indonesia .
Mr. Simarmata cautioned that, while local governments’ and communities’ responses so far have inspired hope, the pandemic will exacerbate competition towards precious resources, including natural ones, while illicit economy will probably rise as a response to the economic stagnation. How to mitigate the adverse impacts in resource management, revive intermediaries’ roles and map the types of movement necessary to help bridge the gaps in the government’s performance and develop livelihood for vulnerable communities will be among the questions that need to be answered in establishing the new normal.
Norway’s experience in facing Covid-19
The two speakers from the NCHR during their presentations and in addressing questions from the participants highlighted Norway’s experience in facing Covid-19. Restrictive measures were put in place, including limiting the mobility of the populace, without much resistance, although during Easter holidays in April some protest emerged because some people wanted to go to their cabins but could not because such travel was not considered to be essential. However, the Norwegian population by and large abided to the government’s rulings. Professor Andreassen points to the Norwegians’ high public trust to the government.
As Professor Ekern emphasizes, in this situation sacrifices on individual rights may be made to protect the most vulnerable in the society, such as the poor or those with pre-existing condition who may not survive if they contract the virus. This tension between the public needs and individual rights will require continuous policy discourse, monitoring, evaluation, and refinement to maintain the necessary delicate balance.
Balance between right to privacy and the public health
The question on how to track Covid-19 prevalence, for example, create the need to balance the right to privacy and the public health needs to track the spread of the virus. In Norway, the “Smittestop” app was created to track the virus but its use was suspended when there was a warning from Norway’s Data Protection Agency that it collected disproportionate data to what is needed to combat the virus. This example underlines the point made during the discussion that legitimacy of the government is earned, among others, by its willingness to revisit its programs to ensure that public objectives are achieved with measures that are least disruptive to individual rights
Another issue in Norway as the curve flattens and the economy reopens, people seem to find it hard to abide to the social distancing rules in order to maintain the low rate of infection in the country. Persuasive measures need to be in place to make sure that the behavioural changes necessary are abided to.
Discretion and wisdom should be employed
Discretion and wisdom should also be employed; in Norway for example there was a rally in support of anti-racism agenda, which clearly ran contrary to the social distancing policy. Freedom of speech being a very important freedom, the police did not employ repressive act and maintained calm and controlled behavior throughout the protest.
The importance of public trust to the government
In Indonesia, which government decides to begin reopening the country even before the infection rate decreases, such behavioural changes to prevent infection are crucial, but this requires uniform and persuasive messaging from the government and other influential actors in the community, including community figures.
However, at the end of the day, for the government being able to push such change, public trust needs to be there so that the population agrees to implement the change without the need for overtly restrictive enforcement. Public trust to the government, is unfortunately not something that one can claim to be abundantly available in Indonesia.
How to preserve the communal and individual rights?
In order to ensure that the new normal is built upon and in fact is aimed at preserving the communal and individual rights, the speakers offer a number of action points:
1. To keep ensure that limitations and/or derogations put in place are in accordance to human rights principles, including the requirement of them being necessary and proportional. Civil society should be able and continue to engage with the government and participate in public debate, academics should contribute and gather new knowledge about the pandemic, and all parties need to cooperate to accumulate information and to keep individuals and the community informed.
Proportionality and necessity of rights restrictions, applied with consistency and non-discrimination, is key to gain legitimacy and public trust, and therefore states should ensure that (a) negative impacts on human rights should be based on the rule of law (codified) and as precise as possible (b) emergency regulation should be targeted and proportional and continuously be evaluated by involving civil society and academics (c) transparency is retained and measures are put in place to prevent, detect, and punish corruption.
2. The most vulnerable in this pandemic is people with poverty and therefore, it is important to focus on social protection including right to health and find innovative ways to boost the economy. Universal basic income, alternative models of health care should be explored and traditional institutions and customs should be looked into as part of the solution. Such policies should be research and evidence-based, and thus will require all parts of the society, including the government, academia, and civil society actors, to collaborate to formulate and implement them.
3. Disparities, domestically and globally, may be overcome temporarily with charity-based responses, and this has proven to be very important in various contexts, including in Indonesia and Kenya. However, this does not replace the need to reform the social and economic systems at global, regional, and domestic levels. The pandemic has exposed the weaknesses in the existing system and it will be a missed opportunity if this momentum is not used by the governments, academics, civil society actors, and others to reform the aspects of the existing systems that breed inequality and render our society vulnerable in the next global emergencies.
Not to be cited, please contact the speakers for direct quotes. Further queries on this summary can be made to alumnindonchruio@gmail.com