Abuse of power on the grounds of public health has been a chronic problem in human history. In 2009, Wendy Parmet, the Director of the Northeastern University’s Program on Health Policy & Law said, “The history of public-health responses and the abuse of civil liberties is horrifying. Abuses occur even though in every era, public-health officials always believe they’re doing the right thing and acting in good faith”.
The excesses committed in the name of public health in the past pale in comparison to the brutalities perpetrated during this pandemic. Videos of the police beating poor Indians and throwing food at those in quarantine like they would feed wild dogs, have gone viral. The West has not lagged behind. Videos from Melbourne, where I live, show that the police has behaved almost as badly as India’s police and terrorised the population – they beat up a girl because she didn’t have a face mask.
International covenants have failed to reduce such atrocities. The International Health Regulations 2005 specify that “a health measure does not include law enforcement or security measures”. An implication (at least in the spirit of the law) is that the police must not be used for public health purposes but police powers have been widely used in recent lockdowns.
Article 6 of the Universal Declaration on Bioethics and Human Rights states that “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice”.
Lockdowns are clearly a preventative intervention and require informed consent in each individual case. But this requirement has been violated all over the world except in Sweden.
What is it about public health that makes governments brutalise their own people so easily? Public health is clearly not an emergency. It can never be an emergency. Full preparation and contemplation of different scenarios in advance is entirely possible. We know this is so because Sweden has managed this pandemic without the slightest panic and without brutalising its people. The Swedes were provided relevant information and chose their actions voluntarily. No police was ever used against them during the pandemic.
Underpinning its civilised approach is Sweden’s Constitution which does not allow the imposition of emergency powers (and hence the suspension of liberties) except in the case of war. As noted by Behrang Kianzad and Timo Minssen in a 12 May 2020 article, “the Constitution protects Swedish citizens from blanket limitations of freedom of movement or general stay home orders”.
Summarising its approach, Mark Klamberg, a professor in international law at Stockholm University wrote on 9 April 2020 that “Sweden has chosen a rule-of-law approach as opposed to an approach where the Sovereign (i.e. the government) is totally unrestrained in time of crisis”. (In this regard, I note that our party considers governments to be only derivatively sovereign: only citizens are true sovereigns.)
Any restrictions on individual liberty in Sweden must be proportionate and based on laws enacted in advance of a public health crisis. Its laws specify that the courts must agree to any restraint on each specific individual on public health grounds. The CMO has to petition the courts for mandatory testing of a suspected ill individual and if someone is proven ill then the CMO must petition the courts for the isolation of the infected individuals.
It is true that Sweden amended its laws in recent months to allow the imposition of certain wider restrictions, such as on an entire business precinct, but most of these powers have not been exercised possibly because these laws would be found by the courts to violate its Constitution.
Sweden’s approach confirms that there is no basis in a free society for trade-offs between public health and liberty. It also confirms that it is possible for nations to comply with the spirit of the International Health Regulations and Universal Declaration on Bioethics and Human Rights. In free societies, the rights of the sovereigns (citizens) must remain paramount at all times.
On 9 April 2020, concerned with the way the world was going, Wendy Parmet asked for an overhaul of public health laws: “With Covid-19 in our communities, the time has come to imagine and implement public health laws that emphasize support rather than restriction”.
In a 260-page report issued on 18 August 2020 entitled, Assessing Legal Responses to COVID-19, 50 law experts (Parmet is on the editorial committee) have made recommendations to better respond to pandemics. Among the suggested actions is that “State legislatures should amend or enact new public health legislation clarifying the scope and authority of state officials to limit person-to-person interaction and impose closures, movement restrictions, gathering bans, and physical distancing requirements”.
Further, the report recommends that “every emergency declaration should include the following information: specific epidemiological data supporting the order; specific requirements for social distancing and mask wearing; an explanation of why the order is needed; and an explanation of why the order does not violate personal freedoms”.
I believe that this report doesn’t go far enough. The very use of emergency powers in peacetime is a problem. Only a constitutional remedy can work.
Australia needs a constitutional amendment to prohibit any peacetime emergency powers. We cannot let governments use public health as an excuse to brutalise citizens and destroy their right to occupation (shutting down shops and businesses) – effectively confiscating their property rights.
All public health laws will need to be entirely re-written once a constitutional restriction is imposed on peacetime emergencies. Australia’s future laws on pandemics must ensure the immediate and ongoing publication of all “confidential” documents – and a cost-benefit test at a minimum – on the basis of which any society-wide restrictions on individual freedom are proposed to be imposed. We must ensure at all times that actions by the executive are reasonable, proportionate and otherwise justified. Else we will end up with tyranny.