Content Regulation / Censorship, Hate Speech, Public Order
Norwood v. United Kingdom
Closed Expands Expression
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The High Court of Malawi held that the lockdown rules implemented in response to the coronavirus pandemic so significantly impacted fundamental rights that they constituted a derogation of those rights and were therefore unconstitutional. A group of individuals and civil society organizations approached the Court, arguing that the Rules the Minister of Health enacted under the Public Health Act had not been properly implemented and severely infringed a range of constitutionally-protected rights – including the rights to freedom of conscience, religion and association. Although the Minister of Health had revoked the Rules before the hearing, the Court proceeded, holding that it was likely that similar rules could be adopted in the future. The Court found that the restrictions negated the “essential content” of the rights and therefore constituted derogations and not merely limitations of the rights. The Court held that as derogations are only permitted when a state of emergency has been declared and that the rights to freedom of conscience, religion and association could never be derogated, the Rules were unconstitutional.
On March 20, 2020, the President of Malawi, Peter Mutharika, declared a State of National Disaster in response to the coronavirus pandemic. The declaration was purportedly made under section 32 of the Disaster Preparedness and Relief Act, 24 of 1991. The Minister of Health and the Chairperson of a specially-convened cabinet committee on Covid-19 later declared the coronavirus a “formidable disease” and published the Public Health (Corona Virus Prevention, Containment and Management) Rules, 2020 (the Rules) under the Public Health Act, 12 of 1948. The Rules – which constitute delegated legislation – were not brought before Parliament and so the legislature did not have any input on their content.
On April 13, 2020, the Minister of Health declared a 21-day lockdown in terms of the Rules. Three days later, the Inspector General and the Commander of the Malawi Defence Forces announced that they were “ready to deploy police officers and soldiers to enforce the lockdown” [para. 1.5].
On April 17, 2020, two individuals, Esther Kathumba and Monica Chnag’anamuno, joined the Human Rights Defenders Coalition and the Church and Society Program of the Livingstonia Synod of the Church Central Africa Presbyterrean, and filed a challenge to the constitutionality of the Rules in Blantyre. Paster David Mbewe filed a separate application in Lilongwe, on the same issue. The two cases were joined and heard together in the Lilongwe High Court.
At the first hearing the High Court granted an interlocutory injunction, and before the second hearing the Minister of Health revoked the Rules. However, the Court held that the matter was not moot as the “issues … are capable of repetition” and so agreed to make a ruling on the merits of the application [para. 3.6].
Judge Manda delivered the unanimous judgment of the three-court bench. The central issue for the Court was whether the lockdown declared by the Minister of Health was constitutional, given the impact it had on constitutionally-protected rights and freedoms.
Kathumba argued that the rights to economic activity, freedom of movement, dignity, freedom of association, freedom of conscience, freedom of assembly had all been seriously impacted by the declaration of the state of disaster. She submitted that “the rights of the populace have been restricted in such a substantive manner that constitute a derogation, and the only way in which such a derogation is permissible is if a state of emergency were declared” [para. 7.1].
The State accepted that the lockdown had a serious impact on the enjoyment of rights, but maintained that these were justifiable limitations of the rights – as permitted by section 44 – and did not constitute a derogation of rights under section 45.
Section 44 is a general limitations clause and states that “no restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards, and necessary in an open and democratic society”.
Section 45(1) states that “[n]o derogation from rights contained in this Chapter shall be permissible save to the extent provided for by this section and no such derogation shall be made unless there has been a declaration of a state of emergency within the meaning of this section”. However, subsection (2) states that “There shall be no derogation with regard to … (h) the right to freedom of conscience, belief, thought and religion and to academic freedom”.
The Court discussed the difference between limitations and derogations and described limitations as “restrictions that are necessary to balance competing or conflicting rights, or to harmonise rights with other public objectives”, whereas derogations are “temporary additional limits, or suspensions of rights, imposed during a state of emergency” [para. 7.4]. It added that there will be a derogation of rights if the restriction on the rights is such that they “negate the essential content of the rights”, and that in these cases those restrictions will have to meet the criteria as set out in section 45 of the Constitution [para. 7.5]. If the rights are merely limited – that is, their essential content remains intact – all that needs to occur is that the limitations pass the test set out in section 44.
In applying these principles to the present case, the Court held that the restrictions on movement, sale and purchase of alcohol, trading, and religious and social gatherings “all curtailed or would curtail essential commercial activity and the lifeline of the citizens whose constitutional rights to life and dignity were therefore threatened in view of the impact of the restrictions to” various rights, including the rights to freedom of conscience, religion, association, movement and access to justice [para. 7.7].
The Court accepted that the executive was empowered to adopt measures to respond to the Covid-19 pandemic, but held that the impact of the Rules was to negate the content of fundamental rights and so they constituted a derogation and not limitation of constitutionally-protected rights. It added that the lockdown “fundamentally restricts” various rights – including the right to conscience, belief, thought and religion” – which cannot be derogated, in terms of section 45(1).
Accordingly, the Court held that as there had been no declaration of a state of emergency and as certain non-derogable rights had been impacted by the Rules, the Rules had been enacted against the stipulations of section 45 and so were unconstitutional.
The Court also held that the “right to social security is implicitly guaranteed under sections 19 (human dignity) and 16 (right to life)” [para. 10.1.6], and noted, with reference to the Indian case of Olga Tellis v. Bombay Municipal Corporation 1986 AIR 180, 1985 SCR Supl. (2) 51, that “the right to life cannot be exercised in the absence of enabling factors” [para 8.5]. It added that it would be “unconstitutional if the lockdown in the context of the matter before us was implemented without paying particular regard to the right to life, and the right to a livelihood” [para. 8.5].
The Court commented that the restriction of fundamental rights was particularly egregious as the Rules restricted access to the courts, and so there was no provision to challenge the way in which the rules were implemented. The Court added that many of the safeguards in the declaration of a state of emergency – such as the requirement of a two-thirds majority vote in Parliament to extend the state of emergency – did not exist in respect of a state of disaster. It stressed that “[i]mbued in the checks and balances under section 45 is the right of the populace to challenge the imposition of measures that derogate rights” and reiterated that these were simply not present in the Rules enacted pursuant to a declaration of a state of disaster. [para. 7.10].
In addition, the Court held that the Rules violated the principle of separation of powers as they – creations of the executive – set out how Parliament and the courts were to operate under the lockdown. The Court, with reference to The State (on application of Lin Xiaoxiao v. Attorney General  MWHC 5 (3 April 2020), emphasized that subsidiary legislation, like the Rules, “may not have the effect of substantially affecting fundamental human rights under the Constitution because Parliament has no power to delegate the making of such law” [para. 6.5]. The Court also held that the Rules were unlawful as they had not been brought before Parliament before their enactment and that, as they went beyond what was permitted in terms of the Public Health Act and were therefore void.
The Court ruled that the Minister of Health was not empowered to make Rules under the Public Health Act which “substantially and significantly affected or would affect the fundamental freedoms recognized by the Constitution”, and declared that the restrictions on rights imposed by the Rules exceeded the limits permitted in section 44 of the Constitution and therefore constituted the unlawful imposition of a state of emergency “through the back door” [para. 10].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court of Malawi confirmed that the rights to freedom of conscience, belief, thought and religion can never be derogated, even if a state of emergency is declared, and that when the impact of restrictions on rights is such that the essential nature of the right is negated that restriction can never be justified as a limitation.
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