NEWS

Human Rights Advocate Ashwin Raj Talks Pandemic Restrictions And Their Legality

Fiji, like many other countries, took measures to contain the spread of COVID-19, following the World Health Organisation’s declaration on January 30, 2020 that the outbreak of coronavirus is a ‘public health emergency of international concern’.
06 Dec 2020 10:48
Human Rights Advocate Ashwin Raj Talks Pandemic Restrictions And Their Legality
Director of Human Rights and Anti-Discrimination Commission Ashwin Raj (left), was one of many conference participants present at the Attorney-General’s Annual Dinner at the InterContinental Fiji Golf Resort and Spa on December 4, 2020. Photo: DEPTFO News

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.

Director of Human Rights and Anti-Discrimination Commission Ashwin Raj, while addressing lawyers at the final day of the 22nd Attorney-General’s conference, talked about the limitations to any right.

He said the global pandemic heightened the exclusion of rights, decrease of freedoms and awakened deep seated xenophobia and related intolerance.

Fiji put in place a raft of measures such as curfew which is still in place. Mr Raj discussed why these measures were within the law.

“Human rights law equally recognises 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,” he said.

“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.”

 

Fijian context

Fiji, like many other countries, took measures to contain the spread of COVID-19, following the World Health Organisation’s declaration on January 30, 2020 that the outbreak of coronavirus is a ‘public health emergency of international concern’.

Fiji confirmed its first case of the COVID-19 on March 19. Later following the announcement, Fiji experienced its first lockdown, 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 March 27, a nationwide curfew from 10pm to 5am effective from March 30, was announced by the Prime Minister.

Following a positive case in Suva, a lockdown of the greater Suva area was announced on April 2, and was lifted on April 17.

A state of natural disaster was subsequently declared. By early June, all 18 COVID- positive patients had recovered. On June 5, 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 July 31, and to date has eight active border quarantine cases. A nationwide curfew from 11pm to 4am remains in effect.

 

Legal basis for restriction:

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 by-

  1. a) limitations expressly prescribed, authorised or permitted (whether by or under a written law) in relation to a particular right or freedom;
  2. b) limitations prescribed or set out in, or authorised or permitted by, other provisions of the Constitution; or
  3. 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 authorised or permitted by a law or by actions taken under the authority of a law.

 

Public Health Act

Limitations imposed on rights to prevent the spread of COVID-19 are prescribed by law under the Public Health Act 1935 for the purposes of ‘preventing the occurrence or checking of the spread of any infectious disease in Fiji’.

Human Rights Implications

“There is a pressing need to strike a balance between our fundamental rights and freedoms and the limitations placed on these rights and freedoms as we fight the spread of COVID-19; there are no easy trade-offs between the imperative to resuscitate our economy and our health on the one hand and the preservation of our rights and our inherent human dignity. Border closures have, ironically, heightened our sense of interconnectedness and shared vulnerability; and the global imperative to reimagine a new kind of social contract between states and citizens. Fiji is not alone in this journey.”

Feedback: jyotip@fijisun.com.fj

 

 


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