By Dr. Alexos Konstantinos *
It is commonplace that its pandemic covid-19 has meant terrifying changes in our lives that primarily contribute to the curtailment of our individual and social rights.
Indeed, society has been divided into many camps, especially those who deny the existence of the coronavirus, those who deny the mask, the precautionary measures, the vaccination, but also those who are strongly in favor of all or part of the above.
Therefore, the key question that arises in any democratic state is where the freedom of each one of us begins and ends. The answer has long been given by the principle of non-harm (John Stuart Mill), the constitutional theory of the - direct or indirect - tertiary effect of individual rights, but also the theory of the institutionalization of individual and social rights.
According to this theory, when a right conflicts with an institution, then the institution prevails and, for example, when my right to do business (Article 25 of the Constitution) conflicts with the overriding public interest in defending public health, then my right as a tradesman to operate my restaurant is bent admissibly and legally, precisely to protect the institution of public health.
It should be noted, however, that the question of which of the two conflicting factors prevails each time is a matter of weighting, is judged on a case-by-case basis (ad hoc) by the Courts and therefore it is accepted, for example, that extrajudicial fines for violating the disinfection law sunbathing, even when he is not with another person and public health is not endangered is clearly unacceptable and illegal.
On the contrary, when a large number of people gather at a social event in the home of the above person, then the risk of transmitting the pandemic increases and therefore his right to the peaceful enjoyment of the right to property is accepted admissibly and legally (Article 23 of the Constitution and Article 1 of the Additional Protocol of the ECHR) and its participation in social life, while pending the measures of administrative and criminal coercion (fine, criminal conviction, etc.), which are maintained by the traditional nation-state monopolistically as a component element of its existence and therefore distinguishes the unlawful violence exercised by any other person.
Based on the above assumptions, the problem in essence starts from the extremely limited application in the Cypriot legal order of the above constitutional theories (see also the 1997 decision of the Nicosia District Court in the case of Nikolaou v. Giallourou), exacerbated by the use of the vague evaluative principle of proportionality ”and the also vague evaluative concepts of“ appropriateness ”,“ necessity ”and“ efficiency ”in the light of which the specialization of the above principle is attempted, mainly jurisprudentially, and finally exacerbated by the question of how the measures are institutionalized through decrees.
It is true that the vast majority of the Cypriot people have shown, throughout the pandemic, prudence and adherence to the imposed measures and have not taken to extremes, as has happened in other countries, mainly in Europe.
Nevertheless, the way of institutionalizing the measures through decrees for a period of more than a year, sometimes even without the consent or with the opposite opinion of the epidemiological group, such as for example the last lock-down that the President " he took it upon himself ", raises the question reasonably, if there is a trace of collectivity in decision-making in this State or the Ludovic quote" The state is me "(L 'attat, c' est moi) applies.
This situation is extremely problematic both from a constitutional and practical point of view, because the state's concern is the protection of public health, which it must protect, but without harming the core of the individual, social and political rights of citizens, especially if it does not has declared the whole country or province in a state of distress, such as the province of Famagusta, where the demand was pandemic and the government ostentatiously deaf, which could be an excuse to further restrict constitutional freedoms but at the same time the financial support of our hard-working fellow citizens.
Nevertheless, the government did neither one nor the other, exposing even the "fig leaf" of the constitutionality of the regulations !!!
Furthermore, the type of decree may be preferred, as it is a faster, flexible, detailed and technical way of dealing with emergencies, but what needs to be checked is whether the above circumstances actually occur.
In particular, the - colonial - law on disinfection (KEF.260) gives the possibility to the Council of Ministers to adopt regulations to deal with the situation.
According to a law (1962), the Council of Ministers has the power under potential legislation and therefore to delegate its powers to be executed by a competent Minister.
Thus in the case of the assignment to a Minister of the elaboration of regulations, they, according to a later law of 1988, must be put before the House of Representatives for a period of time and if they are not voted against, it is considered that they have voted in favor of a State law.
Unfortunately, this procedure was never followed in this case of decrees issued by the Minister of Health, as these decrees were never submitted in the form of a regulation to the House of Representatives, under the subsequent law of 1988 and therefore legally suffer and benefit of dubious constitutionality.
If the government therefore wanted to refrain from any criticism of arbitrariness, abuse of power, lack of legal basis, lack of information, consultation and contempt for the common sense of justice, it should inevitably bring all measures before the relevant Parliamentary Committee and Parliament and not to operate the executive power in excess of its constitutional competence, arbitrarily invoking the fastest and most flexible way of dealing with the situation.
Furthermore, the question arises as to whether the time required for the adoption of the measures (safe-pass) was available to the government, given that there was no question of flexibility, technical nature, detailed development or more specific elaboration of the recently announced measures given in the event. that these are essentially a copy of the European Union regulation on the "green certificate" and given that this issue has been in the news since March 2021, the government had extra time to introduce, through its parliamentary group, the measures in Parliament to be voted on.
All that was required to decide was whether they were in line with the above constitutional theories and whether, in the final analysis, they were in accordance with the principle of proportionality, the appropriateness, the necessity and the effectiveness which it imposes.
Logically, in this case, too, the principle of proportionality is blatantly violated, as the protective application of this legislation cannot be equated in the exceptional case of a European Union (EU) citizen moving to another European country. with that of the daily life of a European citizen in his own country.
This also introduces unacceptable discrimination, as the obligation of the traveler is exhausted in the torment of control upon entering or even staying and leaving the country of departure and with a time horizon of one (1) year according to the regulation, while the obligation of the citizen of the country is subject to perpetual and in particular to its submission every three days either to a rapid test or molecular type test of detection (PCR), facts that contribute to overwork and financial exhaustion, especially if he chooses the molecular type indirectly and compulsorily its direction in vaccination, which is in direct conflict with the fundamental principle of self-ownership and is unconstitutional, unless there is an informed consensus to perform a medical intervention. .
Therefore, with this method, the enforcement of information and the withdrawal of consent for vaccination is practically inadmissible, which leads to the obligation of people who do not want to choose vaccination as a way of protection and thus raises a strong issue of constitutional order.
This is also strengthened by the time of the announcement of the issuance of this decree, which "in a strange way" coincided with the next date of completion of the work of Parliament (23/3/2021), which shows that the time of the announcement was not only accidental.
All this raises reasonable questions about the constitutionality of these provisions, which is clearly intensified and directly linked to the political timidity, inefficiency and responsibility of the government to enact Justice reform, and in particular the functioning of the Supreme Court as a Constitutional Court. as an inalienable consequence the provision of the necessary legal remedies and aids for the rapid diagnosis of the constitutionality of these decrees.
This in combination with the fact that the government failed to establish by law (not by decree for a certain period of time) the framework for the cessation of sales, the framework for insolvency, the cessation of evictions due to non-payment of rents, the freezing of installments to banks, the cessation of individual prosecutions due to the pandemic, to consolidate the rent subsidy and showed that it has failed in its legal and political mission to effectively protect the citizens and the productive classes of the country and must receive the message of its failure in the upcoming Parliamentary elections of May 2021.
* Dr. Alexios Ch. Konstantinou, Lawyer / Academic, Member of Parliament for Famagusta with the "Solidarity" Movement