The Supreme Court says that it will not give a decree on the regulations made by the Minister of Health concerning the compulsory presentation of vaccination cards or proof of negative PCR tests in certain key areas, namely schools and hospitals as these regulations have been replaced. Two applications for Judicial Review had been separately lodged by Deenarain Lokee and Lindsay Marion where respondents in both applications had been the Minister of Health and Wellness and the State of Mauritius.
The relevant regulations had been made on 2nd June 2021 through the “COVID-19 (Restriction of Access to Specified Institutions) Regulations 2021[GN No 119/202]” (the June Regulations) which have since been replaced by new regulations in August 2021 (the August Regulations). The amendments made by the August Regulations have extended the list of concerned places to include the Sir Seewoosagur Ramgoolam International Airport, Plaine Corail Airport, Port Louis harbour, Port Mathurin harbour, reform institutions and residential care homes.
Since the applications for leave for Judicial Review had been initially made in relation to the June Regulations which are now revoked, the judges find no reason to determine whether the application for Judicial Review should be granted.
Moreover, in the midst of the proceedings, an amendment was made to the Quarantine Act 2020 so as to give the Minister of Health the power to “restrict a person from having access to a specified institution, place or premises unless he satisfies such medical requirements, and complies with such conditions, as may be prescribed”. The Judges accepted the arguments of the counsels for the respondents that, in light of those amendments, there are “no live issue left” for the court to consider.
What does the judgment mean for people who want to raise similar application?
As the regulations that were being put in question have already been revoked, the possibility of hearing the case on an ‘academic’ basis was considered in court. Therefore, even if there are no questions to be determined that will directly affect the rights and obligations of the parties involved, the court may still consider the legal points on a ‘hypothetical’ or ‘academic’ basis.
Concerning the pandemic, Mauritians diverge on what they consider the right approach to be taken by the government. Some citizens prioritise the safety of the population over individual freedoms whilst others are more wary of human rights. The latter set of people is likely to be aggrieved or prejudiced by legislations, such as the June Regulations, which indirectly undermines the freedom of choice of individuals for the benefit of the wider population. A judgment on an ‘academic’ basis would have provided guidance on similar cases, should they eventually arise.
However, after considering the relevant authorities, the Supreme Court held that “academic issues cannot and should not be determined by courts unless there are exceptional circumstances”. They were of the opinion that these exceptional circumstances were not present in the current case. Due to the amendments in the Quarantine Act, it is now within the powers of the Minister of Health to set regulations restricting access to specified institutions and thus, it is unlikely that similar application would arise.
Nevertheless, within the judgment, the court reminded the relevant authorities of an extract of the Guidance on Emergency Measures and COVID-19 issued by the UN High Commissioner of Human Rights, which reads as follows:-
“The situation presented by the COVID-19 pandemic requires many countries worldwide to take extraordinary measures to protect the health and well-being of the population. Even in a public emergency, these steps need to be based on the rule of law.
Emergency powers should be used within the parameters provided by international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), which acknowledges that States may need additional powers to address exceptional situations. Such powers should be time-bound and only exercised on a temporary basis with the aim to restore a state of normalcy as soon as possible.
Even without formally declaring states of emergency, States can adopt exceptional measures to protect public health that may restrict certain human rights. These restrictions must meet the requirements of legality, necessity and proportionality, and be non-discriminatory.”
