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Rights concerns over new pandemic bill

feature antigoni main long queues for rapid tests became the fixture of the week (christos theodorides)
Long queues for rapid tests (Christos Theodorides)
Critics say proposed law bypasses House oversight and would entrench sweeping powers of health minister

 

The new legislation dealing with pandemic-like situations raises a slew of red flags according to some legal experts, primarily because of the marked lack of checks and balances on the state.

Meantime a battle is being waged on the sidelines of the bill’s reading in parliament, with a group of citizens heavily lobbying MPs to weed out what they see as the more egregious clauses.

The bill in question is the ‘Infectious Diseases Law of 2021’ that will replace the current Quarantine Law – passed by the former British colonial rulers all the way back in 1932 – under which coronavirus-related decrees have been issued since March 2020.

Savia Orfanidou, MP with the ruling Disy party and member of the House health committee, told the Cyprus Mail that legislators would get into the nitty-gritty soon.

The article-by-article review of the bill had been scheduled to get underway last Thursday – but the session of the committee was postponed.

Under parliamentary rules, once an article-by-article review gets underway no observers – other than the media – are allowed inside the room. Aside from MPs themselves, only relevant state officials may be present.

Orfanidou said that though the government did not submit the bill as urgent per se, the government as well as the attorney-general’s office did “encourage” MPs to expedite the legislation so that it gets to the plenum as soon as possible.

She could not provide even a tentative timeline for when the bill might go to the plenum for a vote.

“Obviously our instructions are for fast-tracking it, but as you know it’s a bill that raises a great deal of controversies.”

But she added that typically three of four committee sessions should do it.

Behind the scenes, and with the clock ticking, a group of concerned citizens wary of the new legislation – which they regard as massive government overreach – have mounted a lobbying campaign, calling and emailing MPs from various parties.

Leading the charge are United Parents of Cyprus, consisting of some 10,000 members from all walks of life. Many have been critical of the measures enforced throughout the coronavirus situation, which they see as coercive.

Self-styled as non-partisan, the group warns that “if the law is passed as is, there is the risk for the abolition of human rights and democracy, since in essence it abolishes the role of parliament and gives the health minister unchecked and unlimited powers.”

Nowhere does the bill state the government needs parliamentary assent. In this sense, it does not deviate from the current Quarantine Law. But the issue for the group is precisely that, namely that the bill effectively crystallises what the government has been doing – or getting away with, some might say – ever since March 2020.

“We believe the government submitted this bill in order to promote oligarchy, legitimising the bypassing of parliament, and also bypassing legislative and oversight power and the opinion of the populace,” the outfit said in an email.

“Together with our legal counsel (attorney Yiannos Georgiades) we also believe the government has submitted this bill in order to retroactively legitimise the illegal and unconstitutional fines that they have handed out or the court cases that they have opened up over the past 20 months. This is an action not allowed by our laws and our constitution and has never been carried out in any democratic state so far.”

Attorney Michalis Pikis, who heads the criminal law committee of the bar association, attended a prior session of the House health committee, where observers were permitted access as the article-by-article stage of the process had yet to begin.

Though not disputing that the state must take measures to control a pandemic and save lives, Pikis came away from the discussion with a strong impression that the bill is highly problematic, and in more ways than one.

“The drastic restriction of human rights by ministerial decrees without being subject to control by any of the other two independent powers of the state, poses a serious risk for the rule of law and democracy,” he says.

“Any restriction of constitutional rights and freedoms must be subject to the approval or rejection of the legislature. This is a fundamental principle of democracy.”

He argued that even the declaration of a state of emergency under Article 183 of the constitution and its right to suspend constitutional rights and freedoms is subject to the approval or rejection of the House of Representatives and has a maximum validity of two months unless the legislature decides to extend it.

According to Pikis, the main change in relation to the current Quarantine Law lies in article 3, giving the cabinet and the health minister sweeping powers to take measures across a wide range of areas.

Article 3 states that the health minister and/or the cabinet may “compel the carrying out of a molecular test, an antigen rapid test and/or any other examination on a person located within an infected local area or non-infected local area, within or outside the Republic, in a bid to halt the transmission and/or spread and/or introduction and/or entry or exit and/or the tackling of a dangerous infectious disease.”

Such powers infringe on the right to corporeal integrity and privacy.

Some might argue these rights may be temporarily waived during an emergency. But the key takeaway is the absence of any safeguards concerning the necessity or proportionality of such restrictions, notes Dr George Tsaousis, lecturer at the School of Law of the University of Nicosia.

“For instance,” observes Tsaousis, “the health minister is tasked with determining the infectiousness or transmissibility of a disease, without the prior assent of a committee of epidemiologists. The same applies in other sub-paragraphs of the same article relating to the designation of measures taken within an infected and non-infected local area.”

Yet, Tsaousis said, it is common knowledge that any restrictions depend on a host of factors, such as the percentage of vaccinated, the average age and temperature.

“It’s clear that these factors cannot, and must not, be gauged solely by the political leadership,” he said. “If we are to buttress the rule of law, we must have the institutional intervention and involvement of the scientific/medical community – something that sadly is totally absent from this bill.”

Elsewhere, article 3 affords the health minister the power to “determine measures to which the functioning of the executive, legislative or judicial authorities are subject to, and generally public and/or state services and/or entities, including local administration authorities, public-law entities and/or other legal entities governed by public law, for the purpose of containing the transmission and/or spread and/or combating a dangerous infectious disease.”

In short, it seems that with a stroke of the pen the health minister gains all-encompassing powers – such as in theory suspending parliament. Whereas this may only be inferred from the text, it’s precisely the vague language that allows such an inference to be drawn.

Weighing in on this, Pikis notes the imposition of measures relating to the functioning of the legislative and judicial branches of the state may be contrary to the principle of separation of powers which permeates the constitution of Cyprus.

Tsaousis identifies another clause that stands out – the state’s ability to commandeer medical and nursing students.

“Students cannot be equated to soldiers because, unlike soldiers, they are not under the authority of the state, nor are they public functionaries. Therefore there exist no legal grounds for commandeering students, and as a result this particular clause lacks any basis in the constitution,” he said.

For Pikis, another concern are the penalties the bill lists for non-compliance or violating of the decrees. Under article 4 of the bill, this would constitute a criminal offence carrying a sentence of up to two years imprisonment and/or a fine up to €50,000, or both.

This is way over the top, remarks Pikis.

He cites the case of Vavricka and Others v The Czech Republic, which went before the Grand Chamber of the European Court of Human Rights. The court decided that compulsory vaccination of children against well-known diseases [not Covid-19], and the imposition of a fine on the parent or guardian for non-compliance, were not a disproportionate interference with the right to private life.

Still, the fine imposed by Czech authorities amounted to a mere €400 – compared to the punitive €50,000 provided under the new Cypriot legislation.

But for Pikis and other lawyers, the real obstacle comes in the form of Article 11 of the bill, whereby any decree or regulation issued under the current Quarantine Law, therefore since March 2020, is considered lawful and valid.

This, he says, runs contrary to Article 12.1 of the constitution prohibiting the retroactive effect of criminal laws.

“But by the clause in question, regulations or decrees that may have been issued illegally are legitimised retroactively, resulting in the possible criminalisation of acts or omissions that did not constitute a criminal offence at the relevant time.”

Asked to describe his overall concerns with the bill, Tsaousis said he accepts that the bill could epitomise the lawgiver’s eagerness to institute strict measures to effectively contain a pandemic.

“It nevertheless adopts problematic provisions that raise justified concerns over civil rights, the exercise and enjoyment of which we had all until very recently – prior to the advent of the pandemic – taken for granted.”

The Sunday Mail reached out to the health ministry, relaying via email some of these points and concerns.

The ministry responded that it preferred not to comment on the bill while it was under parliamentary scrutiny.

Asked who had participated in drafting the text, a ministry source said only that they included persons from the attorney-general’s office, an official with the health ministry’s legal department, and a staffer at the presidential palace.

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