Virus or no virus, courts must dispense justice

Covid-19 has forced administrators and bureaucrats to act in several ways in the endeavour to control its spread and in some cases ensure the survival of individuals, business organisations and even countries.

These decisions and administrative actions have affected human relations in homes, workplaces and several other places in ways that some have found unnerving or unacceptable, leading to disputes that have landed in courts.

About a fortnight ago, a judge in the Federal Court of Australia tackled head-on the issue of how Covid-19 affected court cases.

The advocates for a litigant in a case scheduled for hearing in June this year had applied for an adjournment on the grounds that the Covid-19 pandemic and the resultant social distancing regulations made it virtually impossible or extremely difficult for the case to be heard fairly, quickly and without unnecessary expenses.

In declining the application, the judge said public institutions like the court must do all they can to facilitate continuation of the economy and essential services of government, including the administration of justice.

He added that even though running a case and taking evidence by video may be slow in some cases and not ideal, it is possible that this can be done without affecting the fairness of trials.

The parties in the case were ordered to confer among themselves on the platform they will use for the hearing, the manner of exchange of documents, and prepare for the hearing on the basis of video evidence without actual appearance in the courtroom.

PUBLIC GATHERING

In most countries, social distancing and the consequent bans on congregation of persons have been disputed as affecting individual liberties, and have consequently been defied and, in some cases, challenged.

In Kenya, for example, as soon as the first case of the Covid-19 infection was confirmed, all kinds of public gatherings were prohibited.

Most churches and religious organisations accepted this and have made alternative means of congregating online with their followers.

Not so in the United States, where a group of churches sued the Governor of California in a federal court and disputed the Governor’s stay-at-home order, which sought to limit congregation in churches.

They argued that prohibition of religious gatherings is an abridgement of their constitutional right in the first amendment right to the free exercise of religious rights.

Their argument is that a political or bureaucratic authority has no power to determine for them whether religious services should be held.

It appears that this contention of the right to liberty in the US is not an idle one. The states of Florida, South Carolina and Tennessee, for example, have declared that religious services are an essential service.

In the words of the lawyers for the churches: “If religious freedom means anything, it must at least mean that the State does not have the authority to dictate to the church its manner or mode of worship, even in times of crisis, especially in times of crisis.”

SURVEILLANCE

They argued that the governor’s decision to consider that faith-based meetings were not essential services was a precursor to authoritarian ‘big brother’. This looks like a case which will find its way all to the United States Supreme Court.

In Israel, the government came up with a method of contact tracing that faced — and failed to surmount — a challenge in the Supreme Court earlier this week.

Towards the end of March, Prime Minister Benjamin Netanyahu gave the Israeli Security Intelligence agency (Shin Bet) the authority to monitor the mobile phones of Covid-19 patients to ascertain their whereabouts and their contacts as a mechanism of contact tracing to contain the spread of the virus.

The Supreme Court of Israel this week held that this was unconstitutional, and that the prime minister had no power to give Shin Bet that kind of authority as it involved invasion into individual privacy, which powers the prime minister could not give Shin Bet without the approval of the Knesset, the Israeli legislature.

Kenya’s bar association, the Law Society of Kenya (LSK), has itself instituted a number of cases in court challenging certain actions taken with regard to the pandemic control measures.

ESSENTIAL SERVICE

In one of these cases, the society is challenging the regulations which introduced offences and penalties for non-compliance with laws meant to control the pandemic’s spread.

The contention is that these regulations were made without public input as required by the Constitution.

Prior to that case, LSK went to court on another petition to challenge the constitutionality of the legal notice by which President Uhuru Kenyatta declared a nationwide curfew intended to contain the spread of the pandemic.

This petition also sought to hold the National Police Service accountable for the unreasonably ruthless manner in which police officers had tried to ensure compliance with the curfew.

The High Court upheld LSK’s contention that the actions of the police were unconstitutional and also agreed that legal services were an essential service which needed to be added to the legal notice, alongside other services.

LSK has joined a case filed against government health officials who buried a person suspected of dying of Covid-19 at night and without the involvement of his family.

The society supports this petition on the contention that the burial under those circumstances was inhumane to the family and disrespectful of the constitutional right to dignity of the deceased.

VIRTUAL MEETING

The orders sought in this case include the exhumation of the deceased to facilitate a decent burial in accordance with the religious and cultural customs of the family of the deceased.

But the courts have also had to intervene in circumstances where the pandemic places citizens in situations with regard to compliance with the law.

A particular example is of companies listed in stock exchanges who have found themselves unable to schedule legally required actions, such as the calling and conducting of annual general meetings.

One forward-thinking director went to court and sought directions and guidance on holding the meeting virtually without having a physical presence of the shareholders.

The High Court provided an avenue for involvement of the shareholders in the AGM in liaison with the Capital Markets Authority.

These cases reveal that even as Covid-19 continues in this world, there is still work to do and the courts remain an important part of the lives of the citizenry, with or without — and even more so during — the pandemic.

The writer is head of legal affairs at Nation Media Group PLC