Health Board could get powers to prejudice people’s fundamental rights

Health board.

PHOTO: Sander Ilvest

The emergency situation in Estonia that has seen nearly two months of strict social restrictions is nearing its end. The novel coronavirus will not disappear any time soon, however, as we still do not know how to treat it. It might be necessary to quarantine those who have been infected, test people for the virus, limit care home visitation and postpone major events also in the future. The government’s proposed solution in terms of who, how and when can limit the rights of people and companies raises serious questions.

Chairman of the Supreme Court Administrative Law Chamber, judge Ivo Pilving perceives the possibility of some of the things included in proposed amendments being challenged in court soon after the bill is passed into law. “Shared capacity means it might prove difficult to zero in on an administrative decision to challenge. We have also seen such situations before the coronavirus crisis.”

The Riigikogu conducted the first reading of yet another so-called coronavirus cluster bill on Wednesday, or the bill to amend the Medical Devices Act, Emergency Act and other associated acts 165 SE that was put to the Riigikogu by the Ministry of Social Affairs on April 29 and approved by the government the next day.

The bill would give the Health Board new powers, including the right to impose quarantine, order people to undergo medical testing, ban public meetings, close establishments and companies or restrict their activities.

The bill would also give corresponding powers to the government in an emergency that has considerable social or economic effect or concerns several local governments. The board would have to follow orders from the government without delay, while being exempt from having to observe checks and balances created to protect citizens from arbitrary actions by the state.

In a situation where the government does not have to notify the person, hear them out or consider their protestations, the rights of the person are placed in jeopardy. If currently, fundamental rights can be severely prejudiced only during an official emergency situation, the amendments seek to lower the bar and greenlight restrictions for simpler emergencies.

Whereas the bill fails to elaborate on “considerable social or economic effect.” Would a student who takes ill in Tartu but lives in Tallinn constitute an emergency affecting several local governments? Past experience suggests these concepts will be given meaning in ensuing court cases that would see people spend time and money defending their rights, which is something not everyone can afford. More often than not, the litigation period would have to be spent complying with restrictions one set out to contest.

Irreversible decisions

The Health Board would also be unable to change its government-mandated decision after hearing from the person as it would have no right to challenge government directives – the state is not going to take itself to court. The board answers to the social minister who is a member of the government.

It is also possible that a person would hear of a decision that concerns them only when a public servant shows up on their doorstep. While the government and Health Board would be allowed to publicly communicate their decisions, there is no such obligation in the bill. Such notification is mandatory in an official emergency situation, with every single order of head of the emergency situation Prime Minister Jüri Ratas published today. A government directive for the Health Board could move between agencies without the public or the person in question being made aware of it, meaning that a citizen’s rights would be prejudiced without their knowledge.

Those ignoring Health Board orders would be committing a misdemeanor and looking at fines that are bigger than what people face for failing to comply with official emergency situation orders. A company could be fined €32,000 for ignoring an order to take measures to contain an epidemic, while ignoring an order from PM Ratas in the current emergency situation is subject to a €20,000 fine.

While people are free to turn to court, another obstacle appears here. Who would the complaint target? According to the bill, the Health Board and the government would share responsibility to a point where drawing a line between the two would be difficult for a legal expert, not to mention an ordinary citizen. The board would say in court that it was following government orders. While challenging a government order in an emergency would be pointless as the government is not obligated to explain orders given to the board and can ignore administrative proceedings norms put in place to protect people’s most basic rights.

When commenting on the bill, Pilving emphasized that according to the constitution, while the government is in charge of Health Board activities, orders by both need to observe the principles of the rule of law also in an emergency or an official emergency situation – orders need to be explained and it must be possible to challenge them in court. “Limiting whichever freedoms must not go beyond what has been shown to be necessary.”

Former chief justice of the Supreme Court Rait Maruste (Reform) is critical of giving the board such sweeping powers and the right to order restrictions.

“The bill fails to provide the obligation to sufficiently demonstrate the need for restrictions, nor does it elaborate on their time, place and extent. It makes no mention of who would monitor the board’s activities and how, and of the procedure of challenging its decisions.”

Maruste said that such decisions cannot be made by the executive power in a parliamentary democracy. “Prejudicing people’s fundamental rights and freedoms needs to be decided by the Riigikogu: either on the floor or in the constitutional committee. It depends on the extent of constitutional infringement and the scope of the threat and must proceed based on the principle of proportionality.”

Illimar Pärnamägi, attorney at law firm Sorainen, said that the bill smells of hurrying as reflected in the fact it has not been coordinated by all ministries and the general quality of the document. “It lacks a thorough effects analysis and even the names of its authors.”

However, the government is in a hurry to pass the bill.

“The emergency situation will end on May 17,” said advisor to the Riigikogu Social Affairs Committee Tiina Runthal. “The Medical Devices Act bill is the only one that we can use to tie together these unrelated amendments before the emergency situation ends,” she said.

New provisions were simply attached to an existing bill.

“The bill will move into its second reading on Monday next and be passed on Wednesday.”

This means that proceedings and three readings in the Riigikogu will take place over just nine days.

Problem with legislative drafting

“I do not understand this rush to make patchwork changes to legislation,” Rait Maruste said. The emergency situation will expire and the pandemic will subside. We have time to proceed in a carefully considered fashion to amend legislation that deals with emergencies and emergency situations, capacity of agencies and how it all ties into constitutional order. Current legislation is insufficient, hardly systematic and at times regulates unnecessary details.”

Chancellor of Justice Ülle Madise told ERR in an interview from a few weeks ago that the Health Board already has sufficient powers and that the important thing would be to pull the legislative drafting apparatus out of the ditch in which it finds itself. The board’s rights and obligations should be clearly listed in the law, so everyone would be able to understand what kind of restrictions they are looking at in different situations.

Madise finds in an opinion sent to the government this week that precise measures for the prevention and combating of infectious diseases can only be laid down by the parliament, that weighing fundamental rights in such situations is complicated, as well as stressing that an integral, clear and carefully weighed regulation is needed.

Something the parliament cannot do in a week.