Chancellor of Justice: Communicable Diseases Prevention and Control Act requires comprehensive review

Chancellor of Justice Ülle Madise has expressed her view that although the government and Riigikogu deserve recognition for the work they have done to amend the Communicable Diseases Prevention and Control Act (hereafter referred to by its Estonian acronym NETS), other options should be considered for the effective protection of public health in a way that does not infringe upon basic rights and freedoms which are protected by the constitution – including the drafting of a completely new act that takes into account, among other things, experiences from the coronavirus pandemic over the last two years.

In the opinion she submitted to the Social Affairs Committee of the Riigikogu today, Madise states that in its current form, the Act to Amend NETS and Other Acts under review does not resolve all issues or guarantee legal clarity in a situation where the state imposes wide-ranging restrictions on everybody in the country.

“Every restriction, both in its own right and as part of a complex of restrictions, must be logically reasoned and based in scientific outcomes and facts that have been correctly interpreted and arrived at appropriately in methodological terms,” the Chancellor of Justice wrote. “The advantage to be gained from imposing the restrictions must outweigh the disadvantages it presents.”

Madise’s view is that NETS, which was first passed in 2003 and has been amended many times since, is anchored in an outmoded way of thinking which has been further undermined by the COVID-19 pandemic. “Terminological inaccuracies and the absence of certain terms will create confusion if the law is enacted and will work against resolving the problems it is designed to address,” she said. The Chancellor of Justice also feels that the act fails to clearly set out the division of roles and responsibility between agencies and the procedures required in handling and working to resolve risks arising from infectious diseases.

In her opinion, Madise makes reference to long-standing court practice whereby basic rights which are protected by the constitution should only be restricted to the extent and according to the procedure provided in law. The more intensively that rights and freedoms are sought to be restricted, the more precise the law enabling this must be.

Among other things, this means that the democratically elected Riigikogu should take on a much greater role when restrictions are imposed. A critical approach should also be taken to the government’s right to impose bans and restrictions using general orders, as well as to the delegating of these rights to government agencies (such as the Health Board).

Madise states that restrictions which, by their nature, are subject to an act or regulation cannot be codified as general orders. Norms which are aimed at an undefined group of people and designed to resolve an undefined number of cases must be codified in accordance with the constitution, which is to say as either an act or a regulation. Such norms must be able to be reviewed, on the initiative of the President of the Republic, the Chancellor of Justice or the courts, promptly and free of charge, with the aim of exercising constitutional oversight.

Therein the act must still enable the government to respond without delay to new, unknown and presumably highly dangerous infectious diseases should it need to do so. However, restrictions enacted on this basis should only remain valid for a limited time and within the framework provided by law, and the Riigikogu should promptly replace any such restrictions with acts.

“As soon as much more is known about the danger posed by a disease, ways of treating it and the complications it may have than when the disease first appeared – especially in a situation where a vaccine that provides protection against the worst effects of the disease is freely available – the principle of caution can no longer form the basis of the state’s response and general restrictions cannot be imposed without a clear scientific and factual basis,” Madise wrote.

The opinion of the Chancellor of Justice also includes almost seven pages of detailed notes, remarks and proposals on specific provisions of the draft act. These are primarily based on an analysis of the combined impact of existing laws, but also on the actual problems that emerged in schools, care homes and elsewhere following the entry into force of restrictions between 2020 and 2022.

The full text of the opinion of the Chancellor of Justice in Estonian: