Opinion｜Legal responses to major public health emergencies: lessons learned from combating COVID-19
By Grenville Cross
In Hong Kong, the Government has implemented a comprehensive approach to combating COVID-19. While protecting public health, it has sought to maintain the city's international status, including its role as a financial, legal and trading center. Its response, from the outset, has been guided by three key principles, which involve prompt responses, constant alertness, and operational transparency. Through its focused combat of the pandemic, it has endeavored to restore normality in a measured way, while avoiding, so far as possible, the "stop and start" policies that are common elsewhere.
Infection control initiatives, therefore, have been reinforced with targeted approaches, that emphasize the importance of concerted community efforts. Social distancing measures, moreover, are adjusted on the basis of the "vaccine bubble" concept, under which various public outlets can operate as long as their staff have received the first dose of the vaccine, and only welcome customers who have had at least their first dose. Restaurants with vaccinated staff who have already received their first dose are now allowed to operate until midnight and to seat up to six customers per table, and the use of the "Leave Home Safe" mobile App (or, alternatively, a customer's written details) is enforced on all premises.
As disease controls affect the legal rights of citizens and require proper enforcement, effective legal mechanisms are required to buttress them. In Hong Kong, after the experience of SARS in 2003, and having regard to the World Health Organization's International Health Regulations of 2005, the Prevention and Control of Disease Ordinance's subsidiary legislation was enacted in 2008 ("the Ordinance"), and this has created the legal framework required to prevent and control the spread of infectious diseases. Quite clearly, public health risks must be identified at the earliest possible stage, and, as a result of the legal amendments, COVID-19 is a statutorily notifiable infectious disease. The Department of Health, moreover, is vested with the power to place "any person who has been, or is likely to have been, exposed to the risk of contracting [the disease]" under quarantine supervision. Without this power, the department would have been unable to handle confirmed or suspected cases as quickly as required.
In the Ordinance, moreover, the Secretary for Food and Health is empowered to make regulations "for the purpose of preventing the introduction into, the spread in and the transmission from, Hong Kong of any disease, source of disease or contamination; and for the prevention of any disease", while the Chief Executive may issue the necessary regulations if the situation becomes a "public health emergency". Under this scheme, a "public health emergency" is defined as "the occurrence of or the imminent threat of a disease, an epidemic or a pandemic", provided it is one that has "a high probability of causing a large number of deaths in the population or a large number of serious disabilities (whether or not long-term) in the population". The Chief Executive is empowered to impose a broad range of measures for the purpose of "preventing, combating or alleviating the effects of [such] emergency and protecting public health", by making regulations under the Ordinance, so long as such situation persists.
In many jurisdictions, specialized laws that facilitate the handling of public health crises are in place, and Hong Kong is no exception. Its Emergency Regulations Ordinance enables the Chief Executive in Council to make regulations during an emergency, as where there is a public danger. Whereas an emergency arises if an event requires an immediate and drastic response, a public danger exists if there is a serious threat to people's safety, which includes health risks. Indeed, the Emergency Regulations Ordinance was enacted in 1922, and it has been deployed to combat diseases like cholera and rabies. However, as the legislation enacted in 2005 is directly related to public health and is far-ranging, this has sufficed in the handling of the COVID-19 response, and it has not been necessary thus far to deploy the Emergency Regulations Ordinance.
Among the more draconian regulations Hong Kong has adopted, are the compulsory quarantine measures. Quarantine orders extend to arriving travelers, and, to facilitate enforcement, electronic/blue tooth wristbands are used to track individuals who should remain in either quarantine camps or quarantine centers, or under home quarantine. On top of this, social distancing measures are enforced under the Ordinance through a regulation which can limit the number of people gathering together in a public place. Catering and other businesses can also be directed to implement specific risk-based measures to contain the spread of the disease. These can include the temporary closure of, for example, places of public entertainment, including cinemas, sports venues and beauty parlors. Places frequented by the public, including shops, are required to take the temperatures of customers, while restaurants and other venues where people congregate are required to record customer details (either manually, or through the "Leave Home Safe" App), and to ensure minimum distances between tables.
Quite clearly, the public health restrictions have impacted on human rights, which is why every effort has been made to ensure that they are proportionate to the risk faced, and do not exceed what is strictly required to protect public health. At the same time, the pandemic has greatly affected the way in which the legal system operates, one obvious example being the problems posed by keeping the seven jurors safe when they gather together to deliberate in criminal trials. In many places around the world, COVID-19 has forced the near shutdown of the courts, and this has paved the way for virtual justice.
In Mainland China, for example, the courts have reacted constructively to the pandemic, by increasing the number of remote hearings. In Beijing itself, where the online trial system can now support 200 courts holding cases simultaneously, the higher people's court instructed judges last year to make full use of the online case handling system, and to advise litigants how to use its digital platforms. The parties can participate in contactless proceedings via laptops and telephonically, and they can give their evidence and cross-examine witnesses online. The entire process is recorded through voice recognition and, after the hearing, the parties can obtain a QR code to create electronic signatures of the trial transcripts.
In Zhejiang Province, the Higher People's Court has instructed the lower courts to provide advice to the parties about online procedures, including filing cases, contacting judges, submitting materials, holding court sessions and mediating online. In March 2020, moreover, in Hohhot, Inner Mongolia, the Hainan district people's court tried a criminal case with only the judge and a court clerk in attendance. To prevent people gathering, the "contactless" trial was conducted through a video call, with separate computer screens presenting images of the judge, the prosecutor and the defendant.
In Hong Kong, it is recognized that extraordinary times require special measures, and Covid-19 has disrupted the judiciary's operations. The judges, therefore, are now proactively managing cases by giving appropriate directions and making determinations on paper, while at the same time complying with court rules and procedures. Wherever possible, the courts are hearing submissions by telephone, by video-conferencing or similar means of visual aid, and generally making use of technology. Indeed, Covid-19 apart, it has become apparent that many court hearings can, as one local judge has put it, be "effectively, cost-effectively, expeditiously, and fairly be dealt with over the telephone". Once, therefore, the pandemic finally subsides, it seems highly likely that some of the expedients adopted during its currency will continue to be used.
Looking elsewhere, the Lord Chief Justice of England and Wales, Lord (Ian) Burnett, announced in 2020, in response to Covid-19, that arrangements were being made to conduct as many hearings as possible using telephone, video and other technology, and that the United Kingdom's Courts and Tribunals Service was "working around the clock" on implementing them. As regards civil and family courts, where some hearings were already conducted over Skype, Lord Burnett said physical hearings should only take place if a remote hearing is not possible, and if suitable safety arrangements can be made.
The Judiciary of England and Wales has also issued a protocol, covering remote hearings in civil cases. This acknowledged that the "current pandemic necessitates the use of remote hearings whenever possible", and that available methods for remote hearings included British Telecom (BT) conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone calls. The protocol, moreover, requires the parties to a case, where necessary, to prepare an electronic bundle of documents, which can be in PDF or other format, and which may either be filed electronically with the court or else delivered physically on a USB stick.
In March 2020, the UK's Coronavirus Act 2020 was speedily enacted, and this expanded the availability of video and audio links in court proceedings, both civil and criminal. Some applications may also be made telephonically, as where somebody wishes to challenge a restriction of movement order imposed for quarantine reasons. Although the judiciary always has the final say on how a case will be conducted, everything possible is now being done to enable the courts to function remotely in the absence of the parties. Again, once the pandemic is over, the lessons learned on how to cope in adversity may well endure in the UK's legal system. In Canada, moreover, which has adopted similar techniques, the Chief Justice, Richard Wagner, recently expressed the hope that "this new way of rendering justice will be kept in the future".
In conclusion, it is clear that legal systems throughout China and beyond are adapting themselves to COVID-19 through the maximization of technology. In previous times, a pandemic on this scale would have almost brought the courts to a standstill, but that has not happened this time. Instead, innovative responses are enabling legal processes to continue, albeit in novel ways. Some of the changes have actually improved things, as where access to justice has been facilitated, procedures have been streamlined, the backlog of cases has been cut, and the costs of litigation have been reduced. As things return to normal, the lessons learned will be of enduring relevance. Indeed, the positives to have emerged from the ways in which the legal systems have coped with the pandemic will have a lasting impact on the quality of justice available to the public.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.