Human rights and when their advocacy is misplaced
Democracy, as we know it today, began its bumpy evolution about 400 years ago. Although that is a long time, practising democracy has remained quite difficult. Some of the reasons for that are there is no universal agreement on a clear definition, and on its best structural elements.
Probable other reasons are that democracy constantly demands from people to participate and to make decisions. In addition, rulers find their job much easier when they can simply give orders; and a certain portion of the ruled might be quite willing to follow them, if they are otherwise left in peace.
This mindset can arise after a government has emerged from an election with an overwhelming parliamentary majority. That government may then feel it has a mandate for just about everything, and can act freely.
But fortunately, in Bermuda there are still some people who keep a keen eye on the Government’s activities, and refuse to be ordered around. I am referring to the Bermuda Freedom Alliance and its lawyer, Mark Pettingill. I do not know whether the BFA is a body formally recorded in a public register, or whether it is a fluctuating group whose adherents are called into action through social media when deemed opportune.
Perhaps it is the nucleus of a new opposition party — would be really nice to have an effortlessly noticeable one. It “formed” when some people had grown dissatisfied with the Government’s hotel quarantining of non-vaccinated returnees from abroad.
In the meantime, some other government recommendations, seen as protective against the spread of the Covid-19 virus —such as mask wearing, testing, vaccination and social distancing — have also come under fire. In such a situation, it does not help that there is still no general worldwide agreement on clearly defined measures to best overcome Covid-19; opinions differ from country to country, interest group to interest group, politician to politician — but only very slightly among the medical profession and scientists. A portion of the non-medical public picked from that confusion what met its liking.
The disagreements between our government and the BFA went beyond initial details to being about “the principle of the thing”, according to Sophia Cannonier, if quoted correctly by The Royal Gazette on July 13, 2021.
The principles involved here are the right to freedom of movement and decision-making on one hand, and the right to freedom from assault on health and life on the other. These are human rights as shown in the Universal Declaration of 1948, law in Bermuda since 1981. But human rights find their limitation where they collide with human rights of others; they can also be limited by law (eg, no full freedom of speech for the secret service, and for doctors); and not all are of the same weight (eg, the right to free and undisturbed assembly does not allow protest marchers to block an ambulance: a possibly endangered life has priority). This shows a claim of infringement of a particular human right is not necessarily successful. There are many court decisions on that, and I am confident that Mr Pettingill can explain them to his clients.
The Bermuda Government has undoubtedly tried very hard to contain the spread of the virus, and put in place restrictions that were initially applauded but are now found by some of our residents too much to endure over a lengthy period. A few other countries have done the same, possibly even more strictly, and have experienced practically no backlash from their citizens.
Our government was not so lucky. Not only obliged by the Declaration of 1948 to protect life and health, but also knowing infections will always recur until the island has reached a state where the virus has only a well controllable chance to spread, the health minister chose from her arsenal of means the quarantine in a supervised hotel at the expense of the traveller.
Mr Pettingill put hotel quarantine on par with incarceration. Incarceration is a restriction of movement imposed as a consequence after an event, namely a crime. Whereas quarantine is a restriction imposed as a prevention before an event, namely an infection. They are two very different matters that have nothing to do with each other. I guess Mr Pettingill knows that, too, but had just allowed himself to be swept away by his enthusiasm for the case.
The question had to be raised by the BFA and Mr Pettingill whether or not hotel quarantine is still a reasonable measure. “Reasonable” is a stretchable term. Instead of defining it for this case, it may be easier to ask: did the minister have less intrusive, less inconveniencing measures at her disposal, which would have rendered the same effect?
Home quarantine has been put forward as an alternative. That looks like a very good alternative, but it suffers from relying on an honour agreement as a guarantee against a breach. And breaches have been recorded. As I said before, the minister has the legal duty to protect the health of the people on this island; how can she make home quarantine successful?
By heavy fines against breaches? Would probably work as well as fines against speeding.
By controlling the quarantined by means of a monitoring bracelet? Already, a certain Antonio Belvedere disagrees with wearing “this stupid thing” (RG, July 15).
By putting policemen on every corner of a house under quarantine? That might work, but policemen do not come free of charge. As we all know, our Minister of Finance is staring at the blank bottom of his coffer every day.
I must admit, I do not have a better solution than the minister “to prevent spread of disease that can occur before a person knows they have the virus”. (Wikipedia definition of quarantine.) What particularly stresses my in-principle support for “watchdogs” is that by now the BFA has become a mix of anti-vaxxers, anti-maskers, anti-social distancers — no wonder, as quarantine is only an enhanced form of social distancing — and almost anti-everything that scientists and medical doctors recommend.
I would have been very interested had it presented, together with its objections, feasible better alternatives to the Government’s attempts to rein in the virus, accompanied by a success guarantee plus an acceptance of responsibility should it fail. That would have demonstrated a well-considered seriousness of its protest.
Instead, I must wonder how it has come to conclude that it knows so much better than scientists and doctors that the Government’s measures are not the best ones. Have its “members” perhaps graduated from a Trump School of Medicine? For those who have succeeded in forgetting Donald Trump, it was he who declared that Covid-19 was just another flu, over and done with in two weeks, and could perhaps be treated with a Clorox jab.
I would also have liked an explanation how the BFA managed to balance its personal inconvenience against the life and health of its fellow islanders.
A certain Eugene Dean has perhaps allowed the public a peep at what might be in the offing when he announced “the protesters had to take matters into their own hands if they were not being listened to” (RG, June 30) — whatever that is supposed to mean, somehow it rings familiar, and has not yet been explained or contradicted by the BFA.
When a person intentionally or negligently causes illegal damage to another person’s body or property, he is obliged to repair or compensate for that damage and all its consequences. I do not think there has been a case in Bermuda where a Covid-19 patient intentionally passed his virus on to someone else. Such cases did happen during the early HIV years, and the individuals were prosecuted when their intention could be proved.
It is difficult to prove somebody actually aimed at causing injury by transmitting a disease. But in some jurisdictions, courts tend to treat as intentional a behaviour that reveals an attitude by the offender that he could not care less if his action causes sickness or even death. Those decisions do not require that the offender has known that he is infected; it suffices when he has reason to suspect he might be infected and should, therefore, have taken better care.
The compensation can be substantial, and include costs for hospital admission, for medical treatment and rehabilitation, for loss of income, and, in case of death, for funeral expenses and even support of the bereaved family.
In addition, a person having acted with that degree of disregard for others may find himself in criminal court accused of grievous bodily harm or homicide, if a causal connection between his action and the injury could be established. Modern contact tracing may make that possible.
Among those who are acting so carelessly with respect to the health of others, I noticed an extreme confidence in their own natural ability to defend against Covid-19. We know a lot more about the virus than we did 18 months ago, but not enough to predict what the virus may do to an individual: whether he will be infected or not, whether his symptoms will be serious or light, whether vaccination will fully protect him or not, for a long or short period, whether he will suffer permanent damage to his health or not, whether his vaccination will prevent him from infecting others, etc, etc.
In other words, we still do not know enough about this virus, only that people with an impaired immune system are at a higher risk. Our medical services have become much better in helping Covid-19 patients, but they have not conquered it yet. The moment the virus is given the slightest chance, it strikes. In a situation such as that, common sense has always told us “better be safe than sorry”.
But what when “sorry” happens to a person who behaved during the pandemic with no concern for himself at all? Could that be seen as self-inflicted injury, and thus perhaps free the health insurance company from footing the medical bills? The Government might want to consider relieving insurance companies from their obligations in cases of all Covid-related illnesses of non-vaccinated people.
Is anyone out there who can tell me why the BFA, and perhaps also Mr Pettingill, considered it necessary to secure the services of a foreign QC in this case? I always proudly thought that this island had already enough lawyers capable of handling a case of this calibre.
All I can say to the Bermuda Freedom Alliance and Mr Pettingill: do continue to keep your watchful eyes on the Government, but please make sure you inform yourself through serious sources — and think in consequences!
• Dieter Waelzholz is a retired former officer within Butterfield Bank