In a previous article,[1] I explored the legal framework for managing an epidemic like the one we are experiencing today in Lebanon following the spread of COVID-19 around the world, as well as the role of panic and its impact on vital decision-making during such crises. In that article, I warned of two key things. The first was the need to reconcile between economic and social rights, on one hand, and the preservation of public health, on the other. The second was the dangers stemming from the panic caused by the virus and the likelihood of it being misused or even exploited to impose measures that are incompatible with the concept of a democratic society committed to rights and freedoms and have negative effects that continue after COVID-19 disappears from our lives. The issue is not simple because of the fallacy produced by the panic that a choice must be made between the right to health on one hand and economic and social rights on the other. The reader may rush into instinctively choosing the right to health (as it extends directly from the right to life), but I showed in my previous article that in this false dilemma both choices lead to the same practical result: we end up choosing a means of death more than a path of life and sustainability.

This is the damaging effect of panic on decision-making and policymaking in the time of an epidemic. Is it possible to reconcile between the right to health and economic and social rights during this critical phase? Put simply, yes. But how then could we limit the spread of COVID-19 and its economic and social repercussions at the same time? This I shall attempt to answer in this article. To this end, I will first evaluate the measures that the government has taken so far. I will then propose some solutions and practical measures that could be immediately adopted for the purpose of realizing the aforementioned vital reconciliation and getting through the crisis with the least possible damage to public health and economic and social life in the country. What I first ask of the reader is to break the grip of panic and depression (and I realize that for many of us, that is not easy under these circumstances) escape the logic of a dilemma between one fateful choice and another. Today, we are in more dire need than ever before of rationalizing public debate  in order to make the most correct, sustainable, and least damaging decisions.

 

Evaluating the Measures That the Government Has Taken So Far

On 15 March 2020, a “general mobilization” was announced, and Decree no. 6198 of 2020 on Declaring a General Mobilization to Combat the Spread of Coronavirus was issued and published in the Official Gazette on March 19. The decree stipulated a series of measures aimed at curbing the virus’ spread, the most important being that citizens would stay in their homes except for “utmost necessity”, congregations of all kinds in public and private places would be banned, all air, sea, and land ports would be closed, and public and private administrations and establishments would be closed. The Prime Minister’s Office then promptly issued a decision containing the instructions for applying the general mobilization decree (Decision no. 49 of 2020), requiring the security and municipal forces to apply the decree’s provisions strictly and take the immediate measures needed to prosecute violators before the competent judicial authorities under Article 604 of the Penal Code.

While the measures that the government has taken evidentially concord with the global trend and its success in containing the pandemic and limiting its spread by “flattening the curve” shown by preliminary studies, the following observations can be made:

1) Neither the general mobilization decree nor its applicatory decision defines the concept of “utmost necessity” that allows citizens to leave their homes without violating the self-isolation policy. Hence, they leave a broad leeway for interpreting this expression, which could result in abuse, corruption, and the spread of a culture of bribery with regard to the security forces entrusted with ensuring its application. Moreover, this ambiguity could also directly affect the enforceability of the decree per the principles of the effectiveness of legal texts, which require that the text be clear and not open to interpretation. What then constitutes “utmost necessity” in this context? Is it limited to securing a person’s subsistence needs (such as foodstuffs, medicines, and going to hospital)? Or should it also include things that preserve a citizen’s psychological wellbeing, especially considering the negative psychological repercussions of self-isolation?[2]

2) The general mobilization decree vested the municipalities and municipality unions with the power to immediately implement its provisions without placing any controls on that power. Consequently, some municipalities (such as Baakleen and Batroun) have gone as far as to take measures that isolate the town (sometimes fully) from its surroundings without any diagnosed COVID-19 cases inside it. This is a blatant violation of the 1957 Contagious Diseases Law, which stipulates that isolating regions is a decision taken by the central government (the Ministry of Public Health), not the municipalities, when an epidemic spreads within them. In other words, isolation is allowed for quarantining infected regions from the other regions, not to isolate uninfected regions from each other. Moreover, the danger of granting the municipalities this power without placing clear controls on it is that it totally ignores the inclination of some of them toward sectarianism and isolation for historical reasons under the pretext of limiting the epidemic, which would have dangerous repercussions on civil peace and coexistence.

3) The measures that the government has taken recycle punitive logic for confronting health crises. Article 1 of the aforementioned decision refers to Article 604 of the Penal Code for prosecuting citizens who violate the general mobilization decree by unnecessarily leaving their homes or partaking in gatherings of any kind in public or private places. This article punishes “whoever causes, due to imprudence, negligence, or disregard of laws or regulations, the spread of an infectious human disease”. The reference to Article 604 is clearly inappropriate because the legal conditions for it are not met in a case such as this one, for they require that the perpetrator contributed to the spread of an infectious disease. In other words, they require that the perpetrator’s action led directly to the infection of other people, and certainly not just departure from the home in contravention of the isolation policy (even if contact with other people occurred). Otherwise, the result would be the inversion of criminal law principles such that a person is “guilty until proven innocent” without a need for any social harm to arise from the act of leaving the home. While the government could have referred to the punishments stipulated in the 1957 law (which I mentioned in my previous article) or to Article 606 (rather than 604) of the Penal Code, which punishes “whoever disregards regulations pertaining to combating epidemics, epizootics, plant diseases, locusts, and other harmful animals”, the reference to penal texts while combatting the current epidemic betrays an effort to put punitive logic and strict application thereof before the logic of shared responsibility, which leads to greater constriction of personal freedom in this area.

 

I must also mention that the adoption of punitive logic has a direct role in stigmatizing the disease and, subsequently, those struck by it, as occurred with drug users in the previous decades. This issue is exacerbated by the public and media fearmongering over corona, which has reached the point where people who have gone out in public have been attacked and described as “brainless” in news segments. What is “brainless” is stigmatizing COVID-19 and those infected by it and publishing their names and bios in the media. What is “brainless” is propagating a culture of fear and stigma over this issue instead of a culture of awareness, solidarity, and mutual support to overcome the ordeal in a civic, democratic manner with the least possible damages. “Brainless” is the person who does not realize that the effect of the stigma is that some infected people and people in contact with them will hesitate or neglect to disclose their status because of fear and the stigma itself, which some state and media agencies insist on producing. Moreover, “brainless” is the person who does not realize that compelling citizens to remain in their homes without creating any alternative means of subsistence for them and in the absence of any rescue policy on the housing, economic, or social level is a death sentence for them and will lead to an economic and social catastrophe (in every sense of the word) that will persist even after COVID-19 vanishes from our lives. Fearmongering and stigmatization are not a characteristic of a democratic society. Rather, such a society adopts comprehensive policies that guarantee and reconcile between citizen’s various needs.

Hence, the measures that the government has adopted, though they concord with the global trend in this context, totally ignore the mandatory reconciliation with economic and social rights (which are also vital), as I explained above. These measures therefore cannot be sustained in this manner, while this ordeal could last weeks or months. How, then, is it possible to reconcile them with these rights and get through the ordeal with the least possible damage on the health, economic, and social levels?

 

How is it Possible to Reconcile Between the Different Imperatives?

In a recent study published on Medium on 19 March 2020, Tomas Pueyo analyzes the different measures taken in various countries around the world to curb the spread of COVID-19 in a comparison of international trends and their effectiveness in limiting the disease’s spread and its repercussions on economic and social life, particularly given that most infected countries have adopted the policy of home isolation and social distancing. He found that some countries that firmly adopted certain preventative measures, including South Korea, Singapore, and Taiwan, avoided adopting strict and generalized measures of home isolation, social distancing, and paralyzing economic activity or, if they did adopt them, only did so for a limited time not exceeding a few weeks. They nevertheless managed to both curb the spread of the disease and limit its damage to economic and social life.

As for resorting to the policy of social distancing, it was limited to the social groups most vulnerable to the disease, although some streets and areas that had seen significant outbreaks were quarantined. The prompt adoption of these measures limited the period of other measures that paralyze economic and social activity in the country. The opposite is also true: the more the state delayed the adoption of firm and intensive preventative measures, the more it was compelled to extend the period of the measures that paralyze economic and social life (which could last several months according to some predictions), which will have catastrophic economic and social repercussions. However costly the aforementioned preventative measures may be, we need only consider the cost of paralyzing economic and social activity for months to ascertain that they are still the most economical choice in the current situation.

 

On this basis, the following steps need to be taken to reconcile between public health imperatives and economic and social imperatives. This should occur via good allocation of state funds and capacities and as quickly as possible.

1- Give top priority to awareness-raising and prevention by empowering citizens, conducting comprehensive, intensive, and free testing (even if they have no symptoms), and freely and intensively distributing means of prevention, as stipulated in the 1957 law.

2- Create facilities to quarantine the infected and their contacts. This could occur via the reallocation of certain empty buildings and hotels in the country without cost to the state given the exceptional circumstances and the obligation of the owners of these premises to show solidarity during national crises. Note that the state can seize establishments or require them to perform services given the declaration of a general mobilization.

3- Call upon medical students and trainees in Lebanon to volunteer in order to consolidate efforts and capacities to limit the epidemic and ensure widespread, comprehensive healthcare. Additionally, allocate funds and conducive space to encourage innovation and scientific and medical research in Lebanon such that the Lebanese state contributes like other states to creating scientific and medical solutions to combat the disease instead of standing in wait for a solution from abroad.

4- Promptly adopt a comprehensive housing policy that makes the “stay at home” motto one within the reach of everyone, not just the well-off social groups. The state should also intervene to control rent prices and establish ceilings for them in keeping with the current situation for the sake of upholding the right to housing.

5- Adopt a comprehensive rescue plan to support the workers and wage earners who lost their jobs or whose wages have been reduced, in line with what The Legal Agenda and Lebanese Labor Watch already demanded months ago.

6- Adopt a rescue plan to support and protect the groups most vulnerable to the disease (such as people placed or living in care homes and retirement homes).

7- Effectuate inspection in the various fields of work and in care institutions to ensure the safety of workers and persons placed in them. This requires the Ministry of Labor and the Ministry of Social Affairs to develop plans for the inspectors.

8- Adopt a penal policy that reduces overcrowding in the prisons and jails such that all detainees and persons convicted for misdemeanors and petty or less serious crimes are immediately released pursuant to the principle of risk mitigation.

9- Compel certain establishments, particularly banks and establishments that sell and distribute foodstuffs, to open for extended periods to avoid crowding and meet citizens’ needs. This the government can do under Legislative Decree no. 102 of 1983.

 

All these steps can be implemented provided that state funds and capacities are allocated well. We will get past this ordeal, for epidemics come and go. We will get past it, but the choices we make today will determine how quickly that occurs and the burden of its repercussions, which we will live with after the epidemic subsides, so let’s make the right choice.

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, COVID-19, Public health, Economic and social rights, Isolation

 

[1] Karim Nammour, “al-Hala' wa-l-Qanun fi Zaman al-Corona”, The Legal Agenda, 14 March 2020.

[2] See the episode of The Legal Agenda’s Qanuni Podcast with psychiatrist Dr. Hala Kerbage, titled “al-Sihha al-Nafsiyya fi Zaman al-Corona”.