Barrister Pirzada Aurang Zaib
THE advent of COVID-19 [corona-virus pandemic] has effectuated a massive toll on the health sector around the world, but along with it, the pandemic has shaken the very pedestal of guarantee of fundamental human rights of citizens around the globe. Governments around the world have responded to COVID-19 by imposing a raft of measures aimed at containing its spread; however, such measures have posed severe challenges to basic guarantees of fundamental rights, by means of immensely restricting freedom of movement, freedom of association by imposing social distancing in public settings, curtailing freedom to trade/employment and implicitly curtailing freedom to practise religion and access to law.
It goes without saying that although, while in essence reasonable restrictions on basic freedoms are probably inevitable under the prevalent circumstances, many countries have gone well beyond moderating them to the extent of blocking democratic liberties. Similar to the global trends, authorities in Pakistan took identical measures, which consequently jolted the very essence of fundamental rights guaranteed to the citizens in Chapter 1 of the Constitution of Pakistan, 1973. The measures undertaken by the Governments in the wake of COVID-19 and their impact on the fundamental rights can be compartmentalized into three primary categories:-
Firstly and most importantly, numerous countries, including Pakistan, in order to ensure prevention of human interaction and social gatherings have practically suspended fundamental democratic rights as enshrined in the Constitution of Pakistan, 1973, such as Article 16 – freedom of assembly, Article 15 – freedom of movement, Article 20 – right to openly practise religion, Article 18 – right to trade and employment, amongst others. While there are palpable reasons for limiting gatherings during this pandemic crisis yet its contentious if imposition of forceful lockdown or blanket negation of freedom of movement and association are proportionate and justifiable. These measures are at best narrowly tailored to further the compelling governmental interest in controlling the spread of the virus. Even freedom of religion has been impacted by measures to control the pandemic, as places of worship have now been closed to avoid overcrowding. Additionally, established religious traditions and public prayers have been banned, depriving millions of believers of their right to express their religion in community with others.
Secondly, these measures have also infringed upon the fundamental right of the citizens under Articles 4 and 10-A of the Constitution of Pakistan, 1973 i.e. the basic right to fair trial and expeditious adjudication in accordance with law. The courts all across Pakistan, for the most part have not been entertaining non-essential/regular matters, which shall defeat the core principle of justice delayed is justice denied.
Thirdly, to ensure the compliance of the stringent measures to control the pandemic, there has been enhanced surveillance and supervision on the people, thereby interfering with guarantees extended to the citizens under Article 4 and 9 of the Constitution of Pakistan, 1973. In prevailing times, there is a legitimate concern for the government to make sure that people are following quarantine rules and strict standard operating procedures to curb the spread; however, one also has to realize that in worst case, this need can easily be used to justify further curtailment of freedoms and a creation of an ever-expanding surveillance state that might not be dismantled once the crisis has subsided. The means adopted globally to ensure the compliance includes installation of tracking software on smart phones, use of cell phone data to track the locations, using facial recognition technology to track people’s movements and usage of drones; thereby severely affecting the right to liberty, privacy and freedom of movement.
It is in no manner aimed to imply that COVID-19 is not serious enough or the measures adopted by the authorities are not necessary; however, it can be said without fear of rebuttal that the peril these measure have posed on the basic fundamental rights shall take considerable time to normalize, even after the fear of the pandemic settles down. Also, in days to come, there is likelihood of the Government taking advantage of people’s fears to augment their own power, stifle any opposition, silence their critics and to curtail fundamental rights and democratic norms of a society. It is incontrovertible that the biggest causality of COVID-19 is the guaranteed fundamental rights of people which seem improbable to return to the way they were preCOVID-19.
—The Lahore-based writer is a Barrister-at-Law from the Hon’ble Society of Lincoln’s Inn.
