It’s been over two years since waves of ever tightening restrictions, including wholesale house arrests, began to be placed on healthy citizens who had committed no crime. One by one, the world’s democracies buckled to the herd panic about the Covid pandemic sweeping the world and their governments increasingly took on hues of totalitarian regimes in telling people when, where, how far, how long and with whom and how many they could go out or even sleep with; what businesses could operate and under what conditions; what medications doctors could and could not prescribe irrespective of their own professional judgement and knowledge of their patients; and mandatory mask and vaccine requirements for an array of social and professional interactions.
Many directives lacked scientific basis and some were downright wacky – there really is no better word for it. The apotheosis of executive overreach came in Canada with the truckers’ Freedom Convoy in Ottawa and in the Australian state of Victoria. In both, MPs betrayed the people, the country and the constitution by putting their own careers first, the party second and the country last. The unchecked growth of the administrative state and centralisation of authority, power and decision-making in prime ministers’ and premiers’ offices fused seamlessly into the rise of the biofascist state. Complicity by the media in propagating fear porn, social media censorship of alternative voices and threats of disciplinary proceedings including dismissal and deregistration by professional governing bodies ensured there’s been a stifling conformism.
The biggest surprise for me was the ease with which freeborn citizens fell into unquestioning compliance. Human rights commissions went MIA just when most needed. The ACT (Canberra: my jurisdiction until this year) Human Rights Commission, for example, resorted to vague generalities: “Restrictions on rights should only stay in place for as long as they are necessary, and they should not limit rights more severely than they need to.” It promised it was “monitoring the restrictions”. This was in December.
The biggest disappointment was the speed with which institutional bulwarks against executive tyranny – parliament, media, human rights commissions and lobby groups – buckled in the biggest onslaught on freedoms and liberties in history. The most profoundly disappointing was the abdication of the courts to keep a check on the descent into de facto if temporary tyranny, notwithstanding constitutional safeguards like the Charter of Rights in Canada. Courts mostly deferred to the executive.
Thus several legal challenges to the growing array of U.K. restrictions in the name of public health simply fizzled out. In a series of decisions in 2020-21, Australian courts upheld the validity of COVID-19 restrictions, including Palmer v Western Australia (2021), Loielo v Giles (2020), Gerner v State of Victoria (2020) and Cotterill v Romanes (2021). Victoria’s Supreme Court dismissed challenges to public health orders because the test of proportionality had to be applied to the package of measures taken as a whole, which had helped to mitigate the pandemic risk. On vaccine mandates, on November 3rd a federal judge ruled that Victoria could fire nurses who refused Covid vaccines. On December 8th, the New South Wales Supreme Court ruled against a crowd-funded legal challenge to vaccine mandates for teachers, health and age care workers and some construction workers that was first rejected in a court in October and then appealed. Most consequentially of all, in February 2021 the High Court, Australia’s top court, upheld Western Australia’s border closure. Law professor James Allan has argued that had PM Scott Morrison not chickened out of supporting mining magnate Clive Palmer’s challenge, he would likely have won.
Maybe, just maybe, the courts are starting to bestir themselves to restore balance and normality. Last October, an Ontario labour arbitrator ruled employees cannot be disciplined or terminated for refusing vaccination. In March, an Ontario Superior Court judge ruled that a mother doesn’t have to vaccinate her children just because this is encouraged by the Government. In January, South Africa’s employment tribunal held an employee’s dismissal for refusing vaccination was unfair. On February 25th, the New Zealand High Court upheld a challenge to vaccination mandates for police and defence personnel. In February, Austria’s powerful 14-member Constitutional Court sought detailed data from the health ministry on hospitalisations, masks and vaccines to justify strict COVID-19 measures. The compulsory vaccination law was passed in January and took effect in February, making Austria the first EU country to go down that route, with fines of up to €3,600 for dissenters from mid-March. Just a month later, however, the Government abandoned the effort because the “encroachment of fundamental rights” could no longer be justified as the Omicron variant was less severe than earlier variants. The court’s questions likely nudged the Government into pulling back. Last month, Sicily’s Court of Administrative Justice held vaccine mandates to be unconstitutional because mRNA vaccines had been shown to cause “serious or fatal side effects”. Even if fatalities are rare, even a single death was enough to invalidate the mandate. The case will now proceed to Italy’s Constitutional Court.
Because of the compliance pull that the U.S. Supreme Court exercises globally, its decision on January 13th to vacate the Biden administration’s vaccine-or-test mandate for large employers, with limited mandate for healthcare workers in facilities receiving federal money, was momentous. The ruling by Florida’s federal judge Kathryn Kimball Mizelle on April 18th, struck down mask mandates in public transport. Hers was a legal decision, not a political or scientific one: the CDC had exceeded its lawful authority. The ruling was met with spontaneous cheers and celebrations from crew and passengers alike after mid-flight announcements. The tone-deaf administration decided to appeal and the ever-reliable Anthony Fauci questioned the authority of courts to overrule health bureaucrats. Having earlier dismissed any criticism directed at him as attacking science itself, he now wants to place the CDC and National Institute of Health above the rule of law.
The decision from the Supreme Court of India on May 2nd is especially noteworthy. Firstly, because it’s the top court in the land, covering the entire country in its writ and including educational institutions and private organisations. Second, it affects 1.3 billion people. And third, because of its longevity, stature and robust independence that has often crossed into outright judicial activism, its opinions are influential in shaping discussions in other countries’ legal proceedings. The Court held that the central Government has the right to put restrictions on people’s rights as a public health safety measure. However, owing to “bodily integrity and personal autonomy”, under Article 21 of the Constitution no individual can be forced to get vaccinated. Most importantly, the Court based its decision on “emerging scientific opinion [that] appears to indicate that the risk of transmission of the virus from unvaccinated individuals is almost on par with that from vaccinated persons”. Therefore, vaccine mandates are not “proportionate”. In a further twist that will bring joy to Covid vaccine sceptics everywhere, the Court directed the Government to facilitate the reporting of suspected adverse effects on a publicly accessible platform.
If no other institution or forum will rigorously scrutinise the science and data behind public health orders that affect entire populations, then the courts are our last remaining hope in which to test the substance of the health advice and government decisions. That is the key significance of the Indian Supreme Court’s decision.
Ramesh Thakur is Emeritus Professor at the Australian National University’s Crawford School of Public Policy and a former UN Assistant Secretary-General.