Issue link: https://maltatoday.uberflip.com/i/1405706
11 maltatoday | SUNDAY • 29 AUGUST 2021 NEWS PAUL COCKS THE United Nations' Special Rapporteur on the right to priva- cy informed the Maltese govern- ment earlier this year that certain measures introduced to mitigate the spread of COVID-19 risked "leading to infringements of fun- damental human rights", Malta- Today is informed. In a letter dated 12 April, Mal- tese academic Prof. Joe Cannat- aci informed Malta's Permanent Representative to the UN, Chris- topher Grima, that he had re- ceived information concerning allegations that Superintendent of Public Health Charmaine Gauci had introduced measures that could infringe on indidiuals' right to privacy. He noted that on 1 April, dur- ing a COVID-19 media brief- ing, Gauci had announced that she had delegated authority to the police and officers from LE- SA, the Armed Forces of Malta, Transport Malta, the Malta- Tourism Authority and Environ- mental Health to enter private dwellings to ensure measures implemented during the pan- demic were adhered to. Gauci had specified that of- ficers could only enter residenc- es on the basis of a report or if they had reasonable suspicion that a number of people were gathering together in breach of regulations. In his missive to Grima, Can- nataci acknowledged that the law did inded grant the Super- intendent the extraordinary power of entering the domestic residence of a private individual without a judicial warrant. How- ever he noted it was extraordi- nary that this power could be ex- ercised even if no public health emergency had been declared. "Such unfettered powers, the wisdon and constitutionality of which may be in doubt, must be exercised in compliance with Malta's existing obligations un- der international law, especially those which require the appli- cation of principles of necessity and proportionality," he wrote. "I have no doubt that the Su- perintendent of Public Health of Malta is attempting to fulfil her duties in very difficult circumstances and that the measures she has authorised are made in the interest of pub- lic safety, but I am also duty bound to point out that with such great power comes great re- sponsibility." This responsibility, Cannataci insisted, in- cludes ensuring that such actions a specific and explicit legal basis, through laws which al- so provide safeguards and remedies that en- sure these actions are necessary and propor- tionate. "My detailed reading of Malta's relevant laws fails to find such safe- guards, not even in the subsidiary legislation relating to COVID-19 measures," he told Grima. "I have carefully perused the Mandatory Standards and Guidelines published by your (Health) Ministry and I fail to find any provisions which may constitute adequate safeguards and remedies which Malta has undertaken to give in such cir- cumstances." Cannataci asked the Maltese government to advise what ad- equate safeguards and remedies were provided by Maltese law and to explain how they reflect- ed Malta's international obliga- tions under the human rights conventions it had ratified. He also recommended that – in the absence of such safeguards – the Superintendent of Public Health immediately retract her instruc- tions permitting entry into private homes. The Maltese govern- ment, in a reply sent to Cannataci on 3 June, insisted that in view of the country's size and dense population, the spread of infectious disease posed a much higher risk than in any other country. "This, together with a Mediterranean culture whereby the strength of family ties and friendship, together with the proximity within which everyone lives, create a higher chance of socialisation and, within these cir- cumstances, the spread of COVID-19," the government said. The higher probability of pri- vate gatherings such as parties, would defy efforts made to mit- igate the spread of coronavirus and to extinguish the disease, the government said, requiring an effective law to safeguard public health. That was why the Superin- tendent of Public Health had been vested with certain powers which could be deemed to em- brace unfettered discretion but which – in practice – are exer- cised in a non-arbitrary fashion. "Malta has had to balance out the right to privacy with its ob- ligation to prevent the spread of COVID-19," the government said. "Moreover, the state has a general duty of care and respon- sibility to protect those within its territory." The government pointed out that the Public Health Act did not actually require the mak- ing of a declaration of a public health emergency prior to the Superintendent being allowed to take action against any notifiable diseases and to issue orders ac- cordingly – COVID-19 had been declared a notifiable disease pur- suant to the Public Health Act. As to safeguards in place un- der law, authorised officers to whom powers were delegated were obliged to carry out their duties in adherence with several conditions set out in the Public Health Act. In practice, the government said, authorised officers are al- ways accompanied by police officers and, in most cases, only seek access to a residential prop- erty when a third party report or complaint is filed. And authorised officers always request permission to enter the property and will wait outside the property is refused. Since the legal notice was published, there have been no reported issues of forced entry. The government said that per- sons who felt aggrieved by action taken by the authorised officers had several fora for complaints, including the Ombudsman's of- fice. That said, following the com- munication by Cannataci, the Superintendent of Public Health consolidated its positions and modus operandi into a Stand- ard Operating Procedure (SOP) setting out the manner in which enforcement of the legal notice in question was to be carried out. The SOP, government said, clarified procedures which were already adopted. UN rapporteur raises privacy concerns in COVID-19 measures Prof. Joseph Cannataci is the United Nations' Special Rapporteur on the right to privacy and has previously taken interest in the use of 'smart' CCTV technology in Paceville, as well as the powers of the Malta Security Service