Ashwin Raj: Striking the right balance between rights and restrictions in THE CONTEXT OF COVID-19
COVID-19 will have (and indeed has already had) a disproportionate impact on a broad range of civil and political as well as economic, social and cultural rights and our ability to realise these rights. More than ever, we must carefully weigh our actions
RIGHT TO HEALTH
International human rights law under the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees everyone the right to highest attainable standard of health and obligates government to take steps to prevent threats to public health and provide medical care to those who need it.
It means that health facilities and services must be accessible to everyone without discrimination and affordable to everyone including the most marginalized.
Section 38 of the Fijian Constitution which guarantees everyone the right to health is premised on these principles.
The realization of the right to health is inextricable and indeed dependent on other fundamental rights such as the right to life, food, water, sanitation, housing, work, education, human dignity, equality and non-discrimination, freedom from cruel and degrading treatment, privacy, information, freedom of expression, association and assembly and movement.
Limitations to rights and freedoms under international law
Human rights law equally recognizes that in the context of serious threats to public health and emergencies, to an extent that it has the potential to threaten the life of the nation itself, as evidenced globally in the context of the scale and severity of the pandemic COVID-19 with 3,065,176 confirmed cases (including seven active cases in Fiji) and 211,631 deaths globally, restrictions on certain rights and freedoms in the form of curfews and lockdown is justified provided that these restrictions are lawful, necessary and proportionate.
Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that
‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.
Derogation means the exemption from or relaxation of a rule or law. In the interpretation of Article 4(1) of the ICCPR, General Comment No. 29 of the Human Rights Committee implores on State parties that derogation from the provisions of the ICCPR must be exceptional and temporary. Furthermore, States should be able to demonstrate why such derogations are necessary and legitimate and equally importantly that in the exercise of such measures, State has applied the principle of proportionality.
Article 4 of the ICCPR explicitly prescribes that no derogation from the following articles of the Covenant may be made even in a state of emergency:
• Article 6 (right to life)
• Article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent)
• Article 8 (prohibition of slave-trade and servitude)
• Article 11 (prohibition of imprisonment because of inability to fulfill a contractual obligation)
• Article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in places where a later law imposes a higher penalty)
• Article 16 (the recognition of everyone as a person before the law)
• Article 18 (freedom of thought, conscience and religion) Consistent with the ICCPR, it is imperative to note that section 43 (1) (a) of the Fijian Constitution expressly provides for the non-derogation of the following rights and freedoms in a state of emergency: right to life, freedom from slavery, servitude, forced labour and human trafficking, freedom from cruel and degrading treatment, rights of arrested and detained persons, rights of accused persons, access to courts or tribunals, executive and administrative justice, freedom of religion, conscience and belief and right to equality and freedom from discrimination.
The Siracusa Principles adopted by the UN in 1984 provides that restrictions on human rights on the grounds of public health or national emergency must at a minimum be:
- Provided for and carried out in accordance with the law; slavery,
- Directed towards a legitimate objective of general interest;
- Strictly necessary in a democratic society to achieve the objective;
- The least intrusive and restrictive available to reach the objective;
- Based on scientific evidence and neither arbitrary nor discriminatory in application; and
- Of limited duration, respectful of human dignity, and subject to review.
BASIS OF LIMITING RIGHTS AND FREEDOMS UNDER FIJIAN LAWS Fijian Constitution
Section 6(5) of the Fijian Constitution permits the lawful limitation to rights and freedoms even without the declaration of a state of emergency under section 154 of the Fijian Constitution.
In particular 6(5) of the Fijian Constitution provides that rights and freedoms may be limited bya) limitations expressly prescribed, authorised or permitted (whether by or under a written law) in relation to a particular right or freedom
b) limitations prescribed or set out in, or authorised or permitted by, other provisions of the Constitution; or
c) limitations which are not expressly set out or authorised (whether by or under a written law) in relation to a particular right or freedom in the Constitution, but which are necessary and are prescribed by a law or provided under a law or authorized or permitted by a law or by actions taken under the authority of a law.
There is extensive jurisprudence on lawful limitations to rights and the legitimacy of lawful limitations has been recognised by the High Court of Fiji.
The declaration of a state of emergency under section 154 of the Fijian Constitution is not always a necessary precondition for a limitation to be lawful as long as the limitation is prescribed by law, proportionate and necessary.
There is a fundamental need to draw a distinction between declaring a state of emergency under section 43 and 154 of the Fijian Constitution and the need to act in an emergency situation (such as the spread of this pandemic) that are provided for in other legislations precisely because declaration of a state of emergency should be a measure of last resort.
This is where the Public Health Act comes in.
Public Health Act
Limitations imposed on rights to prevent the spread of COVID-19 is prescribed by law under the Public Health Act 1935 for the purposes of ‘preventing the occurrence or of checking the spread of any infectious disease in Fiji’.
Regardless of who pronounces it, the principal legislation is very clear that the administration of the ‘infectious diseases’ provisions of the Public Health Act rests with the Permanent Secretary, that pursuant to section 68 of the Act infectious diseases may be added or deleted by the Minster and section 69 clearly prescribes the powers of the Minister and the Permanent Secretary including the power ‘to prohibit, order and regulate conditionally or unconditionally the movements of persons, animals, goods, vehicles, and vessels on sea or on land, including the assembling together whether habitual or occasional of either adults or children’.
The Public Health (COVID-19 Response) (Amendment) Act 2020 gazetted on 27 March 2020 recognises COVID-19 pandemic as an infectious disease.
In such situations, careful balancing between fundamental rights and freedoms and the limitations placed on these rights and freedoms including upholding the rule of law is imperative.
The need to place justifiable limitations to our rights and freedoms is recognized under international human rights law under strict criteria to ensure that these restrictions are not abused and rights unduly interdicted.
To ensure that justifiable limitations to rights and freedoms are not abused, the Fiji Constitution places a necessary safeguard that the interpretation of rights, freedoms and attendant limitations must be consistent with values that under lie a democratic society based on human dignity, equality and freedom.
The Canadian Supreme Court’s formulation of the test for interpreting rights and limitations, now famously recognised as the Oakes test, is instructive.
Based on the Oakes test, how do we read rights and limitations?
• We read rights broadly
• We read limitations narrowly
• We ask if the limitation is provided for under a prescribed law?
• We ask whether the limitation is intended to respond to a legitimate aim?
• We ask if the limitation is proportionate to the aim?
We all have the right to freedom of movement guaranteed under the Fijian Constitution. However, this right can be restricted in the interests of public health. How do we test whether a lockdown or a curfew is justifiable in a democratic society based on human dignity, freedom and equality? Let us examine this in the context of Lautoka and Suva.
a) Is the requirement to stay at home initially in Lautoka and subsequently Suva and certain parts of Labasa intended to meet a legitimate social need? YES, in the interests of public health. b) Is there a written law to allow this? YES, the Public Health Act c) Is the step taken proportionate to the social need? YES, to prevent widespread infection and to save lives.
d) Does the restriction impair the right as little as possible? YES
The exercise of the right to freedom of speech, expression and publication cannot be extricated from the need to balance that right with responsibility to ensure that what we say is actually fact based, it does not lead to panic and harm and does not have the effect of compromising national security or resulting in the diminution of rights and freedoms of others.
COVID-19 will have (and indeed has already had) a disproportionate impact on a broad range of civil and political as well as economic, social and cultural rights and our ability to realise these rights.
More than ever, we must carefully weigh our actions in the context of the rule of law, our human rights and freedoms and the responsibilities that come with it. What does this mean?
In the dispensation of the rule of law, law enforcement agencies must observe the right to life, freedom from cruel and degrading treatment, observe the rights of arrested and detained persons, rights of accused persons and ensuring access to courts or tribunals to ensure there is no extrajudicial punishment and those responsible for the abuse of human rights are equally held accountable without impunity.
The exercise of the right to freedom of speech, expression and publication cannot be extricated from the need to balance that right with responsibility to ensure that what we say is actually fact based, it does not lead to panic and harm and does not have the effect of compromising national security or resulting in the diminution of rights and freedoms of others.
Ensuring access to critical information in a timely and transparent manner including its availability in the vernacular and accessible to those with disabilities and on the margins of our society such as the poor means being responsible for what we post on the social media to avoid the spread of fake news and misinformation.
This means addressing discrimination, racism and xenophobia particularly when people are apportioning blame on individuals for bringing the virus on the basis of their religion, ethnicity, or place of origin or what they eat.
Access to critical health data comes with the responsibility of ensuring that this data is handled with sensitivity, ensuring the right to privacy and medical treatment without stigmatization.
There is a pressing need to strike the right balance between our fundamental rights and freedoms and the limitations placed these rights and freedoms as we fight the spread of COVID-19.