Public Law - Rule of Law during the COVID-19 Pandemic, Assignments of Law

Download Public Law - Rule of Law during the COVID-19 Pandemic and more Assignments Law in PDF only on Docsity! On 31 December 2019 marks the first reported case of Coronavirus disease 2019 (COVID-19) in Wuhan, Hubei Province.* The world then was ill-equipped with proper measures and medications henceforth the drastic spread of the COVID-19 pandemic has led countries to undertake emergency measures in order to contain and control the disease.* By June, a total of 89 countries have declared state of emergency, most recently Japan on 7* April.? In light of this pandemic, majority of the countries imposed strict limitation on freedom of movement and freedom of assembly which controls the movement of its citizens and unauthorized large gatherings with emergency powers. It is just to say that these steps are crucial to protect the public health and safety since social distancing slows the spread of the virus. However, some countries are using these special measures to enact emergency legislation with legal means that undermines fundamental liberties which affects todays citizen’s rights in an unprecedented way since the Second World War.* On 30" March, Hungary’s parliament has passed an emergency law that allows Prime Minister Viktor Orban to rule by decree without a fixed time limit. The legislation allows the Prime Minister to extend the state of emergency indefinitely and impose jail term for those spreading false information.®> Many are concern that the legislation would restrict the legitimate works of journalist and freedom of expression in Hungary.° A journalist in Hungary, Csaba Lukacs received threats from officials warning them to be diligent with news reporting and that they will be sent to prison.’ His sources are now careful with providing information to the reporter, meanwhile hospitals and public officials are refusing interviews in fear of the government. The power was regarded as a tool to pass law efficiently without * WHO Timeline - COVID-19’ <https://www.who.int/news-room/detail/27-04-2020-who-timeline---covid-19> accessed 6 June 2020 ? WHO Director-General's opening remarks at the media briefing on COVID-19’ (11 March 2020) <https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on- covid-19---11-march-2020> accessed 6 June 2020 * ‘States of emergencies in response to the covid-19 pandemic’ <http://ccprcentre.org/> accessed 6 June 2020 “Karina Weller, ‘How World War II led to Human Rights Laws’ (2017) <https://www.slps.org/cms/lib/MO01001157/Centricity/Domain/9446/How%20World%20War%2011%20led %20to%20Human%20Rights%20Laws%20-%20Rightsinfo.pdf> accessed 6 June 2020 5 Shaun Walker and Jennifer Rankin, ‘Hungary Passes Law That Will Let Orban Rule by Decree' (the Guardian, 30 March 2020) <https://www.theguardian.com/world/2020/mar/30/hungary-jail-for-coronavirus- misinformation-viktor-orban> accessed 6 June 2020 * Rupert Colville, ‘ Press briefing notes on Hungary’ (OHCHR, 27 March 2020) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=25750> accessed 6 June 2020 7 Attila Mong, ‘Hungarian Journalist Csaba Lukacs On Covering COVID-19 Amid Attacks On Independent Media - Committee To Protect Journalists' (Committee to Protect Journalists, 22 April 2020) <https://cpj.org/2020/04/hungarian-journalist-csaba-lukacs-on-covering-covi/> accessed 6 June 2020 lengthy readings in the parliament. However, insignificant laws in regards of the pandemic is passed using the emergency power. One day after the passing of the emergency law, on 31 March, the Hungary government passed a law preventing trans citizens from changing their legal gender. The Human Rights Watch warned of possible discrimination to transgender community which goes against the European Convention of Human Rights (ECHR) under Article 8 of the ECHR; a right to respect one’s private and family life.® ® In the case of Christine Goodwin v. The United Kingdom [2002]*°, the European Court of Human Rights held that denying a trans person from changing identification documents and legal identities could amount to discrimination and violate the right to respect for private lives. This shows the law was passed with contempt to the case law above. The European Union Agency of Fundamental Rights (FRA) released a survey showing that 95% of respondents believe that the Hungarian government does not take enough measures to protect the transgender community.’ The Council of Europe has raised concerns about the reforms jeopardizing human rights, rule of law and democracy.” The above statement provides awareness that emergency powers and special measures amid COVID-19 pandemic have significant impacts on democracy, rule of law and fundamental rights. The following presentation will review some of the foremost affected liberties resulted by exceptional powers. These areas include freedom of movement, privacy and data protection. Freedom of Movement Most countries have introduced limitation to free movement i.e. temporary border control and detain immigrants in detention centers. In the European Union (EU), eleven states completely closed their border.** Meanwhile countries in the Association of Southeast Asian ® Lydia Gall, ‘Hungary Seeks To Ban Legal Gender Recognition For Transgender People’ (Human Rights Watch, 3 April 2020) <https://www. hrw.org/news/2020/04/03/hungary-seeks-ban-legal-gender-recognition- transgender-people> accessed 6 June 2020 ° Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 1(8) * Christine Goodwin v The United Kingdom App no. 28957/95 (ECtHR, 14 July 2002) 11 ‘A long way to go for LGBTI equality’ (European Union Agency for Fundamental Rights, 2020) <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-Igbti-equality_en.pdf> accessed 6 June 2020 ® ‘Secretary General writes to Viktor Orban regarding COVID-19 state of emergency in Hungary’ (Council of Europe, 24 March 2020) <https://www.coe.int/en/web/portal/-/secretary-general-writes-to-victor-orban- regarding-covid-19-state-of-emergency-in-hungary> accessed 6 June 2020 *8 ‘Temporary Reintroduction of Border Control’ (European Commission, 2020) <https://ec.europa.eu/home- affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en> accessed 6 June that the Federal Bureau of Investigation (FBI) has increased the collection of personal data from 2004 to 2009 of its citizens. Yet, the FBI admits no major terrorism case was unfolded.* But, the act was used to track down drug trafficking with no link to terrorism which suggest the government may fail to comply with the act’s jurisdiction.” It is likely special measures in certain countries during this pandemic may go beyond protecting public health and outlast their justification. On the contrary, the scale of this pandemic is in a dire situation.® The fact that South Korea and Taiwan makes use of geolocation to deescalate the spread of COVID-19 without a lockdown makes a strong case for privacy violations.” To simply put, citizens wishing to avoid lockdowns may have to excuse their privacy. Having said emergency powers may impact the rule of law (ROL), the following will discuss the different political and philosophical definition to the rule of law. Till today, the ROL holds no definite meaning. However, the uncertainties should not cause concern but study the different interpretation of the ROL, if ever, you may find your own view of the ROL. Adherence to the ROL ensures governmental powers is exercised within strict legal limits. Countries in absence of a constitution i.e. UK, which acts as a procedural device for governments to enact legislation, the ROL becomes the underlying ‘constitution’. A.V. Dicey argues that the ROL have three main aspects. The first limb emphasizes that no one is punished and only be punished in circumstances when there is a clear breach of law. The law should be accessible, clear and certain to the people to prevent government from making hidden or arbitrary laws, or retrospective penal laws, ultimately punishing people without notice to such legislation. This statement goes in hand with the social contract. The social contract theorizes that the citizen trade off their individual rights for the protection of %20changes,a% 20significant%20purpose%22%20is%20intelligence.> accessed 6 June 2020 *° Maggie Ybarra, 'FBI Admits No Major Cases Cracked With Patriot Act Snooping Powers' (The Washington Times, 2020) <https://www.washingtontimes.com/news/2015/may/21/fbi-admits-patriot-act-snooping- powers-didnt-crack/> accessed 6 June 2020 * ibid * United States v. Jones 565 US 400 (2012) %3 ‘Three Months Into Pandemic, Covid-19 Symptoms Multiply’ (NST Online, 2020) <https://www.nst.com.my/world/world/2020/05/590776/three-months-pandemic-covid-19-symptoms- multiply> accessed 6 June 2020 * Elizabeth Law and May Choon Chang, 'How China, South Korea And Taiwan Are Using Tech To Curb Coronavirus Outbreak’ (The Straits Times, 2020) <https://www.straitstimes.com/asia/east-asia/how-china-s- korea-and-taiwan-are-using-tech-to-curb-outbreak> accessed 6 June 2020 * A.V. Dicey, An INTRODUCTION TO THE STUDY OF LAW OF THE CONSTITUTION (1885) the government. Hence, the allegiance between the people and the government puts both parties to obey the law. For instance, the government should not enact arbitrary or secret laws, in return the people obey the law. One can only be punished by clear breach of pre- existing law, retrospective liability is frowned upon. In the UK, there is a presumption by the court against retrospective operation of legislation, said to be a fundamental rule of English law unless the statute is clearly constructed or necessary.* *” * In Burmah Oil v Lord Advocate (1965)*’, the House of Lords (HOL) awarded compensation for destroyed oil fields during wartime, subsequently the government introduced a retrospective legislation denying the government from liability. The second limb emphasizes that no man is above the law.” Public bodies and citizens alike are subject to law and to the same courts irrespective of rank and status. The government is subject to law in the sense of being accountable for their action. The third limb describe the protection of human rights through common law rather than a codified legislation.** Dicey believes case laws will set precedents to protect fundamental liberties and will continue to evolve by solving disputes between ordinary citizens. However, such view does not suffice nowadays. Legislative measure protecting human rights have been accepted worldwide as a legitimate form of law i.e. European Convention on Human Rights. Lord Bingham, a British judge, develops eight sub rules to the rule of law.” Contrasting with Dicey’s ROL, Lord Bingham’s supplement Dicey’s idea of the ROL with modern views; the previous briefing on Dicey’s does shows inconsistencies with today’s practice. These are: (1) The law must be accessible and predictable. Laws should be conferred to the public, by means of publishing or public speech, in order to act according to the law. % Peter Benson Maxwell, Interpretation of Statutes, 12th ed (1969), p 215 %7 Wilson v Secretary of State for Trade and Industry [2003] UKHL 40 8 ‘House Of Lords - Wilson And Others V. Secretary Of State For Trade And Industry (Appellant)! (Publications.parliament.uk, 2020) <https://publications.parliament.uk/pa/Id200203/Idjudgmt/jd030710/will- 7.htm> accessed 6 June 2020 * Burmah Oil Company v Lord Advocate [1965] AC 75 (HL) “ A.V. Dicey, AN INTRODUCTION TO THE STUDY OF LAW OF THE CONSTITUTION (1885) “ibid * Tom Bingham, The Rule Of Law (Penguin Books 2011) (2) Questions of legal right and liability should be resolved according to law and not the exercise of discretion. Appreciates Dicey’s opposition to unrestricted discretion, decision making of officials and judges should not be arbitrary. (3) The law equally applies to all, except objective differences justify differentiation. This simply means no man is above the law and a key limb of Dicey’s ROL. The message here is that the law applies equally to all, however, different treatment is objectively justified given the differences. For instances, children should not be treated as an adult in relation to law. (4) Ministers and public officers must exercise powers with good faith and for the purpose for which the powers were conferred without exceeding the limits of such powers. This rule can be made certain by judicial review, whereby actions and decisions of the government is reviewed to ensure they are acting within their jurisdiction, separation of powers. (5) The law must afford adequate protection for fundamental human rights. (6) Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. Legal aid and access to court should be provided to all. (7) Adjudicative procedures provided by the state should be fair. (8) The state must comply with its obligations in international law as in national law. With the ongoing pandemic, public health is certainly threaten not lacking challenges to the fundamental liberties of citizens resulted by strict measures implemented by the government. While some countries are equipped with proper tools in the constitution to allow special measures in times of emergency i.e. declaring state of emergency, some does not. The following presentation will review the legitimation of emergency legislation or constitutional structure of declaring a state of emergency by the governments in Italy and the UK along with compliance to the rule of law. Italy On 31% January 2020, the government of Italy declared a state of emergency. The Italian constitution does not detail a provision for a state of emergency. Yet, the constitution does entails framework to allow implementation of emergency legislation. Article 77 of the constitution provides the government to adopt decree laws, having the same status as an The Government acted under the Public Health (Control of Disease) Act 1984 (PHA1984), creates the Health Protection (Coronavirus) Regulations 2020.°° * This regulation allows public officials to restrict any individual that posed threats of spreading the virus. At first, consent is needed by the patient for supported quarantine, it was later revoked based on public health issues and the model being threaten.’ One can reasonably say that it was acted in good faith and was within their powers to do so in order to protect the citizens in the UK. On 3" March, The Coronavirus Act was published.“ This act provides better measures as it was drafted to accommodate this pandemic with scientific affirmation and the ROL.” Unlike its predecessor, this Act has a sunset clause which most of the provisions will cease to function after two years and reviewed every six months, preventing misuse and abuse of power post emergency, Bingham’s second rule.** Much the same, the Act restricts certain liberties, extraction of personal data to track the people’s movement but introduced multiple social benefits for its citizens i.e. statutory sick pays.®* It clearly shows the government is trying to ease the financial tension amid this pandemic, assisting its citizen’s welfare. It was on 31% May, The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 overthrow the previous regulation. Citizens are now allowed to move freely with social distancing guidelines. Education services are now reinstated along with non-essential businesses. From the brief above, the Government shows minimum derogation from the HRA 1998, unless necessary, but was quickly reinstated. The Government’s action does invite criticism that legislation was passed hastily, lacking comprehension, instead the government should act on CCA2004 which provides extensive 5® Public Health (Control of Disease) Act 1984 5° The Health Protection (Coronavirus) Regulations 2020 © ‘Health Secretary Announces Strengthened Legal Powers To Bolster Public Health Protections Against Coronavirus' (GOV.UK, 2020) <https://www.gov.uk/government/news/health-secretary-announces- strengthened-legal-powers-to-bolster-public-health-protections-against-coronavirus> accessed 8 June 2020 “ Coronavirus Act 2020 © "What The Coronavirus Bill Will Do' (GOV.UK, 2020) <https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will- do> accessed 8 June 2020. © The Health Protection (Coronavirus) Regulations 2020 “ibid safeguards against abuse; lapse after 30 days, which was reasoned above.®° The best course of action can be disputed. Finally, to answer the question. Yes. By the book, almost any measures taken by the states would, in some form, infringe the fundamental liberties of its citizens. Still, human rights law should be of strict reference when formulating legislations, and by doing so, the government plays a critical role defending citizen’s rights. It is inevitable for some trade offs to fight this pandemic; the public should accept such restriction seeing its reasonable and proportionate. Fields experts should constantly provide insights of government’s action to educate the public on measures and effect. Constructive criticism should alert the government of its sloppiness and hope for amendment. After all, we should all keep an open mind to the rationality of emergency measures to face the bigger enemy. Bibliography Cases 1. Burmah Oil Company v Lord Advocate [1965] AC 75 (HL) 2. Christine Goodwin v The United Kingdom App no. 28957/95 (ECtHR, 11 July 2002) 3. 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