By Lei Yi Wong
In order to tackle the COVID-19 pandemic, countries across the globe have employed various tactics. These include ‘quarantine’ or ‘lockdown’, which have meant stay-home orders, the closing of outdoor facilities and businesses, or both. Such measures have been deemed by some as essential for the containment of the coronavirus, but they have also been the subject of constitutional concerns. The balance struck seems to have been varied across the globe. Thought-provoking issues arise upon the closer inspection of a few selected countries that represent different continents and have exhibited different reactions to the crisis.
The UK is currently in the midst of easing its lockdown measures. The Health Protection (Coronavirus, Restrictions) Regulations 2020 made it an offence in all four nations to leave home without a “reasonable excuse”. In England and Wales this offence was in effect between 21 April and 1 June. “Reasonable excuse” was left undefined by the regulations, but a non-exhaustive list of excuses was provided, including obtaining food and medical supplies and exercising. Additionally, all non-essential businesses were closed, including businesses selling food or drink for consumption on the premises and recreational facilities listed in Schedule 2. Since June, non-essential shops in England have been allowed to reopen. Children of school-going age will be expected to return to school full-time in September.
The government has faced legal challenges on the lockdown measures. Recently, the International Airlines Group, Ryanair, and EasyJet have issued a pre-action protocol letter protesting the rule that passengers arriving from abroad will have to self-isolate for two weeks. The claim will be heard at the Royal Courts of Justice imminently. The challenge disputes the proportionality and fairness of the rule imposed, and the claimants have said that people should only have to self-isolate if they are returning from ‘high risk’ countries.
On 11 March, the Hungarian government declared a state of emergency. Public gatherings in enclosed spaces with more than 100 people were prohibited, and in-person lessons at schools were gradually disallowed. Controversially, the Hungarian parliament voted by a two-thirds majority to allow the government of Prime Minister Viktor Orbán to rule by decree without a set time limit. Legislation was also passed that criminalised the spreading of false information, which could be punishable with a prison sentence of up to five years. ‘Ruling by decree’ garnered criticism across the EU, with the European parliament approving a statement that said Hungary’s measures were “incompatible with European values”. The Hungarian Parliament has since voted to end the nation's state of emergency, revoking the law.
On May 25, Japan lifted a nationwide state of emergency. During that time, businesses and schools were urged to close and people were requested to stay home. Japan has been one of the few countries that have not imposed penalties enforcing coronavirus rules. It has been suggested that the reluctance to set enforceable limits on personal rights stems from accommodating the prevailing post-war consciousness of safeguarding individual rights. Moreover, Japanese ‘self-regulation’ has proven to be effective in keeping death rates low.
South Africa has downgraded its coronavirus lockdown measures to ‘level three’. This marks the full reopening of retail trade, media services, and professional and business services. The status of current measures is especially interesting as a South African High Court has declared the level three regulations unconstitutional. Justice Norman Davis found that the regulations were ‘irrational’ and has given the government two weeks to rework them. Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has since filed an application for leave to appeal against the judgment.
It seems that Japan has been unique in minimising the role of the law in its response to COVID-19. On the other hand, Hungarian legislation in the name of a coronavirus response has greatly enhanced executive powers. It is clear that there is a spectrum across countries regarding the role of law and its utilisation. What is effective and appropriate clearly differs depending on each country’s socio-political circumstances. It will be intriguing, however, to observe a new determination of judicial powers in light of legal challenges to government regulations, as seen in the UK and South Africa. It remains to be seen as to whether a pandemic can influence the balance of powers.
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