By Sir Frank Ofagioro Kabui
Former Head of State and High Court Judge
I wrote previously in Solomon Star about the lockdown Order made by the PM under the Emergency Regulations, in May 2020.
In that article I made reference to Denis Mitoro, Criminal Case No. 1 of 2021 but said I had not read the High Court judgment.
I have now read the judgment. The High Court judgment says that the Order made by the Prime Minister was valid.
It therefore stands unless set aside by the Court of Appeal.
As I understand, no appeal has been lodged in the Court of Appeal. On that basis I would now say the Police were entitled to make any arrests and enforce the Order which they did.
They had no choice. Judicial review will not apply to them or a grant of a pardon could be justified as I had said but judicial review may shift to another level. The issue may not be easy to go away.
However, my point is that there can be a good law and a bad law. It depends upon who makes it.
In this case, the architect is the person who drafted the Order. The architect should not have drafted the Orders in the first place.
Why? It was unnecessary in May, 2020 and in August, 2021 as well. I am not saying that any mock lockdown should not happen.
The Orders had restricted the freedom of movement of persons under the Constitution as part of the mock lockdown.
The mock lockdown as a package can happen as and when necessary without the need for criminal consequences for not following stay at home instructions.
The law can be a fool if the architect who designs it is not careful and sufficiently knowledgeable of its consequences.
The Order made by the Prime Minister in May 2020 had been drafted and published in the Gazette specifically aimed at applying to the first mock lockdown.
The second one in August, 2021 had been done the same way. In other words, each had been intended for a covid-19 mock lockdown.
The other parts of the mock lockdown package were alright.
We all know that there had been no covid-19 infections in the emergency zone in May 2020 and in August, 2021.
The architect of the Orders should have known this or knew but took no notice?
There was a Blog FutureLearn, dated 27, March, 2020. It says this,
“Why are we in a lockdown? The thinking behind it is to “flatten the curve” of the pace of the advance of the virus. Covid is a relatively contagious disease, seemingly twice as contagious as the flu, and less contagious than MERS”.
On 27, August, 2021, the Imperial College, London, Covid Response Team, explains that the purpose of a lockdown is to reduce reproduction-in other words, to reduce the number of people each confirmed case infects.
The goal is to keep reproduction low.
This is the health security explanation for having a real lockdown. It is talking about community infection by the virus and a lockdown to fix it. This is why it is important to restrict the movement of persons during the lockdown in order to flatten the curve as being one of the measures to be taken.
In a real lockdown situation, free movement of persons must be stopped at all cost, including imposing criminal penalties to achieve this purpose. It makes sense. It is understandable.
In a mock lockdown situation, freedom of movement of persons is not restricted by law. Persons are advised to stay at home. It is a time to learn about the real lockdown when it does come to bear.
The front-liners are learning as well as the community. It is supposed to be a user-friendly practice for the good of all. No one should be arrested, fined or go to prison for it.
The Orders the Prime Minister made in May, 2020 and recently in August, 2021 did not respect the freedom of movement of persons under the Constitution during the course of the two mock lockdowns.
One cannot even say the Orders were real lockdown measures because there had been no covid-19 infections to shoot down on both occasions.
There is no common sense in this nor is there a sense of understanding and balance in the Orders.
It is not wise nor is humane to impose penal consequences in a mock lockdown situation such as these. It is not a time to experiment with restricting persons’ freedom of movement in a mock lockdown just to prove that the Government meant business. For this reason, the Orders were bad laws.
The architect of the two Orders seemed to have been guided by the Biosecurity Act, 2015 of Australia.
In Australia, the Governor-General declared a biosecurity emergency on 18th March, 2020 because there had been an outbreak of covid-19 in the country. Not so in Honiara in May, 2020 and up to end of August, 2021.
There had been justification for sections 477, 478 and 479 of the Biosecurity Act, 2015 of Australia to apply in Australia.
These sections do enable the Australian Health Minister to issue orders and give directions that may affect freedom of movement of persons.
Likewise, in Solomon Islands, the Emergency Regulations (Covid-19) (No.2) 2020 (Legal Notice No. 47) of 2020 gave the PM power to do a number of things including the power to make orders restricting freedom of movement of persons. The Emergency Power (Covid-19) (No.2) Regulations 2021 (Legal Notice No.198) did the same.
These measures must have been based upon the Australian experience in the Biosecurity Act, 2015. This is normal in drafting. Nothing is wrong with that fact.
The architect of the two Orders appears to be an Australian consultant. If so, we do appreciate the intervention.
In Australia, there is no Bill of Rights unlike the entrenched fundamental freedoms in our Constitution. I say this because I assume the same consultant tried to split the power of the Governor-General in section 16 of the Constitution in the current Public Health Bill, 2021 without amending the Constitution.
This is a mistake. The legal environment in Solomon Islands is different from Australia.
I do not think the two Orders will be revoked. But the picture has become clear in that the Orders had been overly premature, being simply precursors to a real lockdown that is yet to come.
It is possible to say that the PM had acted beyond his powers to make such Orders meant for real lockdowns that are yet to occur to apply to mock lockdowns.
A number of persons had been arrested, perhaps detained and dealt with accordingly. It is for them to be concerned and act accordingly if they wish.
The same architect must have produced the instruments of Proclamation by declaration of a state of emergency signed by the Governor-General, the first being in March, 2020.
The first had expired after four months. Further declarations by Proclamations have been made since the first one. The current one in force, I believe, is the fifth one. There may be more to come.
By comparison, section 476 of the Biosecurity Act, 2015 of Australia expressly does allow for extension of any emergency if necessary. In Solomon Islands, section 16 of the Constitution is dumb on the issue of extension.
It says nothing. How come that being aware of the Australian experience on this issue, the consultant was able to navigate around section 16 and came up with splitting/dividing covid-19 as a continuing crisis into segments of four months each time the previous one expires so that each segment is a separate state of emergency declaration? It must be by interpretation. It cannot be anything else.
Such an interpretation is highly likely to be one of convenience than being the true intention of section 16 of the Constitution.
Again, it is for the persons arrested to express a view on the correctness of such interpretation. This goes to the root of the constitutional validity of the current state of emergency.
The Constitution in section 16(8) shows its concern for the manner in which any emergency authority treats any accused person arrested under a state of emergency law. In a mock lockdown situation, the concern should not be applicable as no emergency law should apply.
Whereas the two Orders made by the Prime Minister did apply and should observe section 16(8) but they do not. There is this confusion as to whether the Orders and the enabling Regulations under which they had been made do attract section 16(8) or not.
This is the problem created by misapplying the two Orders made by the Prime Minister to a mock lockdown. The law becomes a fool on the basis of an obvious misunderstanding when it is made to apply to a simulated set of facts than to a real lockdown for which it is meant to apply.