Mitoro v R [2021] SBHC 84; HCSI-CRC 01 of 2021 (30 June 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Mitoro v R
Citation:
Date of decision:	30 June 2021
Parties:	Denis Mitoro v Regina
Date of hearing:	31 May 2021
Court file number(s):	01 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:	Magistrates Court
Order:	1. That paragraph 4 (1) (a) and (b) of the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No. 2) Order 2020 as read with Regulation 11 (1), (2) (a), (b) and (c) and (3) of the Emergency Powers (COVID-19) (No. 2) Regulations 2020 are constitutionally sound and valid. 2. The substantive matter is referred back to the Magistrate Court for disposal by the said court. 3. Right of appeal
Representation:	Mr. Benham Ifuto’o for the Applicant Miss. Elma Veenah Rizu and Mr. Vernon E Taupongi for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) 2020 Para 4 (1) (a) and (b), Emergency Powers (COVID-19) (No. 2) Regulation 11 (1), (2) (a), (b) and (c) and (3), Emergency Powers Act (cap 11) S 2, Constitution S 18 (1), S 18 (1) and (2), S 16 (7), S 5, 6 (2), 9, 11, 12, 13, 14 and 15, S 5,6,7,8,910,11,12,13,14,15 and 16,
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 01 of 2021

DENIS MITORO

V

REGINA

Date of Hearing: 31 May 2021
Date of Decision: 30 June 2021

Mr. Benham Ifuto’o o for the Applicant
Miss. Elma Veenah Rizu and Mr. Vernon E Taupongi for the Respondent

RULING

Bird PJ:

1. The applicant in this case, Mr. Denis Mitoro was charged with one count of restriction of movement contrary to paragraph 4 (1) (a) and (b) of the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No. 2) Order 2020 as read with Regulation 11 (1), (2) (a), (b) and (c) and (3) of the Emergency Powers (COVID-19) (No. 2) Regulations 2020 at the Central Magistrates Court in Honiara.
2. It was alleged by the respondent that on the 20^th May 2020, at Tanuli Ridge at about 8.05pm, the applicant without any lawful excuse was not at his place of residence namely Talise, East Kola’a Ridge Honiara. He was seen at Tanuli Ridge, an area designated as an emergency zone during the restriction period by the Prime Minister.

Background

3. When the matter was called at the Magistrates Court, a preliminary issue of law as to the lawfulness of the restriction of movement was raised by the applicant and a request for the matter to be referred to this court was heard by the court below pursuant to section 43 of the Magistrates Courts Act (cap 20). Subsequent to the application for referral, it was held by the court at first instance that since the issue also involves issues of interpretation of the Constitution, the matter was referred to this court under the provision of section 18 (3) of the Constitution.
4. At the hearing of this referral, it was apparent that the applicant seeks redress under section 18 (1) of the Constitution. It was argued on behalf of the applicant that a declaration must issue in his favour to the effect that regulation 4 (1) (a) and (b) of the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No. 2) is unconstitutional and invalid.
5. Section 18 (1) and (2) of the Constitution provides:
   • S.18 (1)- Subject to the provisions of subsection (6) of this section, if any person alleges that any of the provisions of section 3 to 16 (inclusive) of this Constitution has been, is being or likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
   • s.18 (2) -The High Court shall have original jurisdiction –
   • (a) to hear and determine any application made by any person in pursuance of the preceding subsection.
   • (b) to determine any question arising in the case of any person which is referred to it in pursuance of the next following subsection,
   • And may make such orders, issue such writs and give such directions, including the payment of compensation, as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of section 3 to 16 (inclusive) of this Constitution.
   • Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

The law

6. The main crux of the applicant’s argument is premised under section 16 (7) of the Constitution as read with section 2 of the Emergency Powers Act (cap 11).

Section 16 (7) of the Constitution provides:

• Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of sections 5, 6 (2), 9, 11, 12, 13, 14 and 15 of this Constitution to the extent that the law in question makes in relation to any period of public emergency provision, or authorises the doing during any such period of anything, that is reasonably justifiable in the circumstances of any situation arising or existing during the period for the purpose of dealing with that situation.

7. Section 16 (7) of the Constitution is clear. The only situation whereby the rights stipulated under sections, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 inclusive of the Constitution is when a state of public emergency had been declared by the Governor General and the powers under the Emergency Powers Act (cap 11) are invoked.
8. Section 2 of the Emergency Powers Act further provides:
   • The Governor General may make such regulations as appear to him to be reasonably justifiable for the purpose of dealing with the situation that exists in Solomon Islands during any period -----
   • (a) when Solomon Islands is at war
   • (b) when there is in force a declaration made under section 16 of the Constitution that a state of public emergency exists.
9. Under the above provision, there are two situations whereby a state of public emergency may be declared. Firstly is where Solomon Islands is at war and secondly is when there is in force a declaration made under section 16 of the Constitution that a state of public emergency exists
10. As a background to this particular case, the Governor General had on the 25^th March 2020 proclaimed and declared a state of public emergency in Solomon Islands pursuant to section 16 (2) of the Constitution. Section 16 (2) provides:
    • The Governor General may at any time by proclamation declare that a state of public emergency exists and as soon as practicable shall publish such proclamation in the Gazette.
11. It was pursuant to the above declaration that the enactment of the Emergency Powers (COVID-19) Regulations 2020, was made by the Governor General on the 26^th March 2020. The regulation was gazetted as Legal Notice No. 29. By virtue of regulation 5, the Prime Minister is accorded with numerous powers during the public state of emergency. That regulation provides:
    • The Prime Minister has the following powers:
    1. to declare public stations to be quarantine stations,
    2. to prohibit the entry of a person or a class of persons into Solomon islands
    100. to direct a person or class of persons to comply with quarantine procedures
    4. to take possession of or requisition property to establish a quarantine station
    5. to declare a public place to be an emergency zone
    6. to restrict the movement of a person for the maintenance of order and security of the public in an emergency zone
    7. to temporarily close a public place
    8. to restrict the movement of vessels and aircrafts
    9. to suspend access to online media outlets or media outlets
    10. to make an order for the National Disaster Council to coordinate and implement emergency operations
    11. to order the release of special funds provided for under other laws of Solomon Islands to implement public safety measure.
12. Legal Notice 29 was later repealed and was replaced by the Emergency Powers (COVID-19) (No. 2) Regulations 2020. That regulation was gazetted as legal Notice 47 of 2020. The current applicant is charged under this particular regulation.
13. Regulation 4 (1) (a) and (b) provides:
    • A person must:
    • (a) be at the person’s place of residence and remain there, on and from 6 o’clock in the evening on Wednesday, 20 May 2020 and 6 o’clock in the morning on Friday, 22 May 2020; and
    • (b) not leave or be away from the person’s place of residence on and from 6 o’clock in the evening on Wednesday, 20 May 2020 until 6 o’clock in the morning on Friday, 22 May 2020
14. Regulation 11 (1), (2) (a), (b) and (c) and (3) of the Emergency Powers (COVID-19) (no. 2) Regulations 2020 further provides:
    • (1) The Prime Minister may, by Order, restrict the movement of a person or a class of persons, for the maintenance of public health, safety, order and security in an emergency zone.
    • (2) The Order must specify:
      • (a) the extent to which the person’s movement is restricted; and
      • (b) the time of day during which the person’s movement is restricted; and
      • (c) the duration of the restriction of the person’s movement
      • (d) A person commits an offence if the person contravenes the Order

Maximum penalty: 10,000 penalty units or imprisonment for 5 years, or both

15. On the outset, Mr. Ifuto’o of counsel for the applicant argued that the state of public emergency as was declared by the Governor General on the 25^th March 2020 pursuant to section 2 of the Emergency Powers Act is not an issue in this case. It is not disputed that there was indeed a state of public emergency in existence in the country on that occasion. There was no issue that the World Health Organisation had declared Covid-19 as a pandemic and it is upon that basis that the enactment of these regulations was done.
16. Mr. Ifuto’o argues that the restriction order under regulation 4 (1) (a) and (b) of the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No. 2) Order 2020 as read with Regulation 11 (1), (2) (a), (b) and (c) and (3) of the Emergency Powers (COVID-19) (No. 2) Regulations 2020 contravenes the applicant’s right of movement under section 14 (1) of the Constitution and should be declared unconstitutional and invalid.

That section provides:

• No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Solomon Islands, the right to reside in any part of Solomon Islands, the right to enter Solomon Islands and immunity from expulsion from Solomon Islands.

Whether regulation 4 (1) (a) and (b) of the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No.2) Order 2020 and regulation 11 (1), (2) (a) (b) and (c) and (3) of the Emergency Powers (COVID-19) (No. 2) Regulation 2020 are reasonably justifiable

17. As previously stated in this ruling, s. 16 (7) of the Constitution and s. 2 of the Emergency Powers Act both provided for the making of regulations during a state of public emergency in the country. One of the issues for determination by this court therefore would be whether the making of the restriction order in Honiara by the Prime minister from 6.00pm on 20 May 2020 to 6.00am on 22 May 2020 was reasonably justifiable in the circumstances.
18. The situation in the country that led to the enacting of the above regulation stemmed out from the global declaration and warning by the World Health Organisation (WHO) of COVID-19 as a global pandemic. Nations were warned to be proactive in the prevention of the virus entering their borders. One cannot underestimate and downgrade the possible effect of the virus in the country if a community transmission had occurred.
19. It is contended by the applicant that the circumstances prevailing in the country on the 20^th May 2020 have fallen short of and do not qualify the making of the restriction order by the Prime Minister. He argues that at the material time there was no positive case of COVID-19 in the country and it was therefore not necessary to order a lockdown.
20. The Prime Minister had by Legal Notice No. 34 dated 27^th March 2020, declared Honiara to be an emergency zone. By virtue of Legal Notice No. 52, the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No. 2) Order 2020 was gazetted and came into force on the 19 May 2020. That enactment was followed by a lockdown in Honiara from 6.00pm on Wednesday 20 May 2020 to 6.00am on Friday 22 May 2020. The purpose of that lockdown was to test the country’s preparedness in responding to a confirmed case of COVID-19.
21. It is uncontested that in May 2020, there was no confirmed case of COVID-19 in the country. The first positive case of COVID-19 in the country was recorded on the 3^rd October 2020, more than 4 months after the May 2020 lockdown.
22. I now turn to regulation 5 (2) (f) of the Emergency Powers (COVID-19) (No. 2) Regulations 2020 which provides:
    • The Orders the Prime Minister may make are to:
    • (f) restrict the movement of a person, or class of persons, for the maintenance of public health, safety, order and security in an emergency zone in accordance with regulation 11
23. The above regulation mandates the Prime Minister to make orders restricting the movement of a person, or class of persons, for the maintenance of public health, safety, order and security in an emergency zone in accordance with regulation 11. He is mandated to make orders that he thinks fit to make under the prevailing circumstances.
24. Regulation 11 is the provision that particularises the restrictions that could be imposed on persons. There are three requirements that must be met before the imposition of restriction on the right of movement of persons. The requirements included the extent to which a person’s movement is restricted, the time of day during which the person’s movement is restricted and the duration of the restriction of the person’s movement.
25. In order to comply with the requirement of regulation 11, the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No. 2) Order 2020 was made on the 19 May 2020 under Legal Notice No. 52. Pursuant to regulation 4 (a), the first requirement is, a person must be at the person’s place of residence, and remain there. The second and third requirements are the time and duration of the restriction, being from 6.00 o’clock in the evening on Wednesday, 20 May 2020 to 6 o’clock in the morning on Friday, 22 May 2020.
26. The argument on behalf of the applicant is that the May 2020 lockdown was not reasonably justifiable because there was no positive COVID-19 case in the country at the material time. On the contrary it was argued by the respondent, that the said lockdown was reasonably justifiable on the basis that it allows the government to test the country’s preparedness in responding to a confirmed case of COVID-19 in the country. They argued that it would also allow the law enforcement agencies to test their ability to maintain law and order in a lockdown situation.
27. Regulation 5 (2) (f) talks about restriction of movement of persons for the maintenance of public health, safety, order and security in an emergency zone. I now wish to turn my mind to the phrase ‘maintenance of public health’ due to the fact that COVID-19 is a very serious global health issue.
28. When one talks about ‘maintenance of public health’ which is also embodied in the regulation, one would also look at the responsibilities of governments on the area of public health. My research has shown that for any responsible government to be able to ensure the maintenance of public health in their respective countries, they must make sure that there is:-
    1. An assurance of an adequate local public health;
    2. Promote healthy communities and healthy behaviour;
    3. Prevent the spread of communicable diseases;
    4. Protect people against environmental health hazards; and
    5. Preparing for and responding to emergencies.
29. The WHO had declared COVID-19 a global pandemic in about 11 March 2020. At that time, some countries in the globe including Solomon Islands had known very little about the virus. Being a responsive government, certain measures and restrictions were put in place. Upon the circumstances at hand, COVID-19 was and still can be seen as a health emergency. There must therefore be preparedness on how the government would respond in an actual emergency occurring.
30. Having said the above, I would now turn to discuss the position taken by the International Covenant on Civil and Political Rights, a multinational Treaty that came into force on the 23 March 1976. Article 12 of that Treaty talks about freedom of movement. Article 12 also talks about exceptional circumstances in which rights of movement may be restricted. It was noted that it is not sufficient that the restrictions serve the permissible purposes. They must also be necessary to protect them. On that basis restrictive measures must conform to the principle of proportionality, they must be appropriate to achieve their protective function and they must be the least intrusive instrument amongst those which might achieve the desired result and they must be proportionate to the interest to be protected.
31. From the above views, it would be obvious that in cases of restriction of movement on persons, the test of necessity and the requirement of proportionality must be observed.
32. In applying the above test to the circumstances of this case, it is a fact that in about 11 March 2020, there was a declaration by the WHO that COVID-19 was a global pandemic. Nations around the globe were warned to be proactive in the prevention of the virus entering their borders. Our government should be commended for its tireless efforts to keep the virus at the border. So far there has been no community transmission of the virus in the country. Apart from making sure the virus does not cross the border, the government must also show its preparedness to deal with a situation whereby there is community transmission of the virus in the country. That in my view was the purpose of the May 2020 lockdown. The government was proactive in their efforts in preparing for and putting in place plans and measures on how to respond to a health emergency.
33. Owing to the above it was therefore necessary for the Prime Minister to make an order for restriction of movement of persons from 6.00 o’clock in the evening of 20 May 2020 to 6.00 in the morning of 22 May 2020. The Prime Minister was reasonably justifiable to make the restriction orders in May 2020.

Principle of proportionality

34. In order for the restriction order to be reasonably justifiable the principle of proportionality must be observed. The May 2020 lockdown has a fixed period of 36 hours. There was no community transmission of COVID-19 in the country then but it had allowed front-line workers to be properly prepared for an emergency and it had also allowed relevant authorities to become aware of and to correct any deficiencies in their operating procedures.
35. I am therefore of the view that the 36 hours lockdown from 6.00 o’clock in the evening of 20 May 2020 to 6.00 in the morning of 22 May 2020 was proportionate to the purpose for which it was created.

Are there facts supporting the reasons for the Prime Minister’s belief

36. There is no dispute the Prime Minister is vested with the power to make orders during a state of public emergency. The issue to be considered therefore is whether or not the orders made are constitutionally sound or valid. In the case of Douglas v The Attorney General, Civil Case No. 284 of 1999, the learned Chief Justice, Justice Palmer had concluded that the objective test is the test to be applied in the interpretation of s. 16 (7) of the Constitution.
37. A state of public emergency was declared by the Governor General on the 25^th March 2020. That state of public emergency was a response to the declaration by the WHO that COVID-19 was a global pandemic. Upon the Emergency Powers (COVID-19) (No. 2) Regulation 2020, the Prime Minister was authorised to make orders, including orders to restrict the movement of a person, or class of persons, for the maintenance of public health, safety, order and security in an emergency zone in accordance with regulation 11.
38. The maintenance of public health included but not limited to preparing for and responding to emergencies. It was for that purpose that the restriction of movement was made by the Prime Minister in May 2020. At the time of the making of the orders, the Prime Minister must have had reasons to believe that the restriction of persons was necessary and he was reasonably justifiable to make the restriction order as part and partial of the maintenance of public health and public order. The restriction per se was not put in place to prevent the spread of the virus in Honiara but it was a proactive measure put in place by the Prime Minister in preparing for and responding to a health emergency due to a possible outbreak of COVID-19 in Honiara and or in the country.
39. The above position was made clear in the Prime Minister’s national address on 20 May 2020 when he stated and I quote “With a disease as infectious, serious and dangerous as COVID-19 we cannot gamble with our people’s lives and pretend that a simple desktop exercise will give us all we need to know. And highlight all the deficiencies and shortcomings of our untried standing operating procedures in the event we have a real case of COVID-19 in our country. We must test our capabilities through this lockdown”.
40. COVID-19 was only declared as a global pandemic by the WHO on 11 March 2020. A public state of emergency was declared in the country by the Governor General on 23 March 2020. About two months after the declaration of a state of public emergency, the May lockdown 2020 was imposed by the Prime Minister. When the country had its first positive case of COVID-19 on 3 October 2020, the country was already in a position to deal with the situation at hand. There was no need for a further lockdown because the capabilities were already tested and measures were already put in place to deal with the health situation.

Conclusion

41. In view of the above discussion, I am of the view that the Prime Minister had reasons to believe that the May 2020 lockdown was reasonably justifiable in the circumstances discussed above. It will therefore follow that the order for restriction of movement of persons in Honiara from 6.00pm on 20 May 2020 to 6.00am on 22 May 2020 is valid and lawful in the particular circumstances of this case.

Orders of the court

1. That paragraph 4 (1) (a) and (b) of the Emergency Powers (COVID-19) (Restriction of Movement of Persons in Honiara) (No. 2) Order 2020 as read with Regulation 11 (1), (2) (a), (b) and (c) and (3) of the Emergency Powers (COVID-19) (No. 2) Regulations 2020 are constitutionally sound and valid.
2. The substantive matter is referred back to the Magistrate Court for disposal by the said court.
3. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge