Balancing rights and restrictions

In a world where fundamental rights, freedoms and inherent human dignity are increasingly under strain, the advent of COVID-19 has disproportionately impacted on a broad range of civil and political as well as social, economic and cultural rights. This has accentuated the interdiction of rights, diminution of freedoms and awakened deep seated xenophobia and related intolerance. It equally underscores the inextricable, seemingly diabolically opposed but mutually constitutive relationship between rule of law and human rights and the need to refrain from preferentially framing one to the detriment of the other.

Right to health

International human rights law under the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees everyone the right to the highest attainable standard of health. It also obligates government to take steps to prevent threats to public health and to 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 the realization of 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, restrictions on certain rights and freedoms in the form of curfews and lockdowns are deemed justifiable provided that these restrictions are lawful, necessary and proportionate. This is however, only to an extent that it has the potential to threaten the life of the nation itself, as evidenced globally given the scale and severity of the pandemic.

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 impresses on State parties that derogation from the provisions of the ICCPR must be exceptional and temporary. Furthermore, States must demonstrate why such derogations are necessary and legitimate and equally importantly that in the exercise of such measures, whether the State has applied the principle of proportionality.

Article 4 of the ICCPR expressly 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 slavery, 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 provide 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;
  • 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.

Fijian context

Fiji, like many other countries, took measures to contain the spread of COVID-19 following World Health Organization’s declaration on 30 January 2020 that the outbreak of 2019-nCoV is a ‘public health emergency of international concern’. On 3 February 2020, Fiji closed its borders to foreign nationals who had been in mainland China within fourteen days of their intended travel to Fiji and following a surge in global cases, the Fijian Government introduced a series of measures on 27 February to contain the risk of an outbreak. Fiji closed its borders to all visitors from mainland China, Italy, Iran, Cheongdo county and Daegu city in South Korea from 28th February.

On 12 March 2020, the World Health Organization classified the coronavirus outbreak as a pandemic. Fiji confirmed its first case of the COVID-19 on 19 March. Following the announcement, Fiji experienced its first lockdown, effective midnight on 10 March with the closure of schools and non-essential businesses within the greater Lautoka area in the western part of Fiji where the patient resided. On 27 March, a nationwide curfew from 10pm to 5am effective from 30 March was announced by the Prime Minister. Following a positive case in Suva, a lockdown of the greater Suva area was announced on 2 April and lifted on 17 April. A state of natural disaster was subsequently declared. By early June, all 18 COVID- positive patients had recovered. On 5 June, the Prime Minister confirmed that Fiji had cleared the last of its active COVID-19 patients. Fiji recorded its first COVID-19 related death on 31 July and to date has eight active border quarantine cases. A nationwide curfew from 11pm to 4am remains in effect.


Biography

Formerly an academic and Chairperson of the Media Industry Development Authority, Ashwin Raj is the Director of the Human Rights and Anti-Discrimination Commission of Fiji.

Introduction

Analysis

Conclusion