115R

THE 2020-2021 PRICE MEDIA LAW MOOT COURT COMPETITION

XANA& THE UNION

(APPLICANTS)

V.

STATE OF IZED

(RESPONDENT)

MEMORIAL FOR RESPONDENTS

Word Count: 4228

1
 TABLE OF CONTENTS

LIST OFABBREVIATIONS --------------------------------------------------------------------4

LIST OF AUTHORITIES ------------------------------------------------------------------------6

STATEMENT OF RELEVANTS FACTS -----------------------------------------------------12

STATEMENT OF JURISDICTION ------------------------------------------------------------16

QUESTIONS PRESENTED ----------------------------------------------------------------------17

SUMMARY OF ARGUMENTS ------------------------------------------------------------------

ARGUMENTS ----------------------------------------------------------------------------------------

A. IZED’S DECISION TO ENACT SECTION 22 OF THE NATIONAL SECURITY ACT DID NOT

VIOLATE ARTICLE 19 & 21 OF ICCPR. -------------------------------------------------------

A.1. Section 22 of NSA is in conformity with the articles 19 and 21 of ICCPR. ---------

i. Interference by such law would be lawful if it is prescribed by law. ---------------

ii. Enactment of Section 22 of NSA met the legitimate purposes.---------------------

iii. The invocation of the law is necessary in current statuesque of society. ---------

A.2. Section 22 of NSA restricts only the derogable rights of individuals as prescribed

under Article 4 of ICCPR. -----------------------------------------------------------------------

B. IZED’S DECISION TO CONVICT XANA UNDER SECTION 22 OF THE NATIONAL

SECURITY ACT DID NOT VIOLATED HER RIGHTS RECOGNIZED BY ARTICLES 19 AND

21 OF THE ICCPR.

--------------------------------------------------------------------------------------------

2
 B.1. Xana’s arrest and conviction was in conformity with municipal laws as well as

ICCPR. -------------------------------------------------------------------------------------------

B.2. Xana’s incited speech deprives her from any remedy under articles 19 & 21 of

ICCPR. -------------------------------------------------------------------------------------------

C. IZED’S DECISION ON 16TH MARCH DID NOT VIOLATE SOCIAL DEMOCRATIC

WORKERS UNION’S RIGHTS RECOGNISED BY ARTICLES 19 & 21 OF THE ICCPR.

------------------

C.1. The statement was issued to pursue legitimate aim. ------------------------------------

C.2. The statement was issued for ‘pressing social need’ of managing public health. ------

D. IZED’S DECISION TO ISSUE GUIDELINES UNDER SECTION 23 OF THE NATIONAL

SECURITY ACT ON 16 MARCH DID NOT VIOLATED THE SOCIAL DEMOCRATIC

WORKERS UNION’S RIGHTS RECOGNISED BY ARTICLE 19 OF THE ICCPR.

--------------

D.1. The guidelines issued under Section 23 of NSA was prescribed by law. --------------

i. Section 23 of NSA was sufficiently precise because the SDWU could reasonably

foresee liability for publishing misinformation with respect to NIDV. --------------

ii. There were adequate safeguards because Ized did not placed unfettered discretion

to restrict speech. ----------------------------------------------------------------------

D.3. THE GUIDELINES ISSUED UNDER SECTION 23 OF NSA QUALIFIED THE NECESSITY

AND PROPORTIONALITY TEST IN DEMOCRATIC SOCIETY. ------------------------------------

i. The imposed guidelines were necessary in the democratic society of Ized. ---------

3
 ii. Guidelines imposed were proportionate in nature. ----------------------------------

PRAYER -------------------------------------------------------------------------------------------------

LIST OF ABBREVIATION

¶ Paragraph

ACHR American Convention of Human Rights

CJEU Court of Justice of the European Union

IACtHR Inter American Court of Human Rights

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EU European Union

NIDV Novel Immuno-Deficiency Virus

HRC Human Rights Committee

ICCPR International Covenant on Civil and Political Rights

NUA National United Alliance

DSP Democratic Socialist Party

OECD Organization for Economic Cooperation & Development

NSA National Security Act

ODIHR Office for Democratic Institution and Human Rights

UDHR Universal Declaration of Human Rights

UK United Kingdom

US United States of America

UN United Nations

UNESCO United Nations Educational, Scientific and Cultural Organization

UNHRC United Nations Human Rights Council

4
§ Section

GC General Comment

Art. Article

OSCE Organization of Security and Cooperation in Europe

ACHPR African Commission of Human and People’s Rights

AComHPR African Commission of Human and People’s Rights

5
 LIST OF AUTHORITIES

DECLARATION, TREATIES AND CONVENTION

International Covenant on Civil and Political Right (ICCPR)…………..……… …………..

………………………………..…………..………22, 25, 27, 28, 29, 30, 3, 32, 35

European Convention on Human Rights (ECtHR). ……………………..………...………….22

American Convention on Human Rights (ACHR). ……………………..……………..……..22

Universal Declaration of Human Rights (UDHR). ……………………..……………...……..22

African Charter on Human and Peoples’ Rights. ……………………..……………………...22

Arab Charter of Human Rights. ……………………..………………………………………..22

UN DOCS

General comment No 34’ on ‘Article 19 (Freedom of Opinion and Expression)’……..……22

ICCPR General Comment No 34. ……………………………………….23, 26, 30, 35, 39, 42

ICCPR General Comment No 27……………………..………………………….…………..42

ICCPR General Comment No 32. ……………………..………………………………….…30

ICCPR General Comment No 29.……………………..………………………………...27, 28

Consideration of Reports submitted by state parties under Article 40 of the Covenant: Chile,

U.N. GAOR, Hum. Rts. Comm., 37th Sess., mtg. 942, para 15, U.N. Doc. CCPR/C/SR. 942

(1989).……………………..………………………………………………………………....31

Rabat Plan of Action on the prohibition of the advocacy of national, racial or religious hatred

that constitutes incitement to discrimination, hostility or violence, OHCHR, 2012.

CCPR/C/21/Rev.1/Add.9, reproduced in Human Rights Instruments, Volume I, Compilation

6
of General Comments and General Recommendations adopted by Human Rights Treaty

Bodies, HRI/GEN/1/Rev.9(Vol.I)……………………………………………………………33

UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental

Freedoms While Countering Terrorism, A/HRC/13/37, 28 December 2009...........................42

Erica Daes, The Individual’s Duties to the Community and the Li432/Revmitations on

Human Rights and Freedoms under Article 29 of the U.D.H.R., UN Doc.

E/CN.4/Sub.2/2…………………………..…………………..…………………..…………..27

REPORTS

U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion

and Expression.……………………..………………………………………………………..22

International Commission of Jurists, States of Emergency: Their Impact on Human

Rights(International Commission of Jurists 1983); THEODOR MERON, HUMANRIGHTS

IN INTERNAL STRIFE: THEIR INTERNATIONAL PROTECTION (Grotius 1987)

………………………………………………………………………………………….27

Dr. Agnes Callamard, Expert meeting on the links between articles 19 and 20 of the ICCPR:

Freedom of expression and advocacy of religious hatred that constitutes incitement to

discrimination, hostility or violence UN HCHR, October 2-3, Geneva................................31

Christopher Harland, The Status of the International Covenant on Civil and Political Rights

(ICCPR) in the Domestic Law of State Parties: An Initial Global Survey through UN Human

Rights Committee Documents, Human Rights Quarterly......................................................32

Human Rights Council, 44th Session, A/HRC/44/49.............................................................35

ECTHR CASES

Handyside v United Kingdom Application no 5493/72 (ECtHR). .......................................22

7
Stoll v Switzerland Application No 69698/01 (ECtHR). ....................................................22

Hachette Filipacchi Associes v France Application no 71111/01 (ECtHR)...........................22

MouvementRalienSuissev Switzerland App no 16354/06 (ECtHR).......................................22

Animal Defenders International v United Kingdom App No. 48876/08 (ECtHR)..................22

RefahPartisi (The Welfare Party) and Others v Turkey Application nos. 41340/98(ECtHR).22

Magyar TartalomszolgáltatókEgyesülete and Index.hu Zrt v Hungary Application no.

22947/13(ECtHR). ..............................................................................................................22

Delfi AS v Estonia Application no. 64569/09 (ECtHR)..............................................22, 23, 24

Sunday Times v United Kingdom Application no 6538/74 (ECtHR)

………………………………………………………………………………………………..23

Silver and Others v The United Kingdom Application no.5947/72 (ECtHR)..….......23, 39, 40

Jobe v the United Kingdom (dec.) Application no. 48278/09 (ECtHR)……………………..24

Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, Application Nos.

29221/9529221/95.............................................................................................................34

LeylaŞahin v Turkey [GC] Application no. 44774/98 (ECtHR). ........................................24

Lashmankin and Others v. Russia (2017), Application Nos 57818/09………………………34

Fáber v. Hungary, Application No 40721/08, 24 July 2012. …………………..……………34

Balsytė-Lideikienė v. Lith., App. No. 72596/01, (ECtHR). ..................................................36

Wingrove v UK Applicattion no 17419/90 (ECtHR).............................................................39

Editorial Board of PravoyeDelo and Shtekel v Ukraine Application no 33014/05

(ECtHR)....................................................................................................................................................

.39, 40

Dmitriyevskiy v Russia Application no 42168/06 (ECtHR)....................................................39

SRL and Di Stefano v Italy Application no 38433 (ECtHR)...................................................40

Delfi AS v Estonia Application no 64569/09 (ECtHR).........................................................40

8
Karáscony v Hungary Application no 42461/13 and 44357/13 (ECtHR)................................40

SatakunnanMarkkinaporssiOy and SatamediaOy v Finland Application no 931/13 (ECtHR)

……….................................................…… ........................................................................40

Müller v Switzerland Application no 10737/84 (ECtHR)........................................................40

Kokkinakis v Greece Application no 14307/88 (ECtHR)......................................................40

Gorzelik and others v Poland Application no 44158/98 (ECtHR).....................................24, 40

Lindon, Otchakovsky-Laurens and July v France Application no 21275/02 (ECtHR)...........40

Nikula v Finland App no 31611/962 (ECtHR, 1 March 2002………………………………………...26

Lawless v Ireland [1961] ECHR 2…………………………………………………………...28

Malone v UK App no 8691/79 (ECtHR, 2 August 1984)……………………………………39

Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006)…………………39

Huvig v France App No 11105/84 (ECtHR, 24 April 1990)……………………………...…40

Liu v Russia (No 2) App no 29157/09 (ECtHR, 26 July 2011) …………………………..…40

HRC CASES

Tae-Hoon Park v Republic of Korea Communication No 628/1995. ...................................22

Benhadj v Algeria Communication No 1173/2003. ...............................................................22

Mukong v Cameroon Communication no. 458. .....................................................................22

VgTVereingegenTierfabriken v. Switzerland, no. 24699/94.................................................23

Dissanayake v. Sri Lanka.Communication No. 1373/2005....................................................23

de Groot v. The Netherlands. Communication no. 578/1994............................................23, 31

Shin v. Republic of Korea, See Communication No. 926/2000.............................................26

Maroufidau v. Sweden, 9 April 1981, Communication no. R.13/58.......................................32

Stomakhin v Russia App no 52273/07…………………………………………………….…37

9
OTHER JURISDICTION CASES

VgTVereingegenTierfabriken v. Switzerland, no. 24699/94. ............................................32

Zana v Turkey (1997) 27 EHRR 607…………………………………………………..……38

BOOKS

Jaime Oraa, Human Rights in states of emergency in international law (Oxford

univ.Press1992)……………………………………………………………………………...27

Barry buzan, people, states and fear: anagenda for international security in the post-cold war

era (Longman 1991)…………………………………………………………………………27

JOURNAL ARTICLE

Security of the Person and Security of the State: Human Rights and Claims of National

Security, 9 YALE J. WORLD PUB. ORD. 1 (1982)……………………………………….26

Erica Daes, The Individual’s Duties to the Community and the Limitations on Human Rights

And Freedoms under Article 29 of the U.D.H.R. …………………………………………..28

Nicole Questiaux, Study of the Implications for Human Rights of Recent Developments

Concerning situations known as States of Siege or Emergency, UN Doc.

E/CN.4/Sub.2/1982/15 (July 1982). …………………………………………………….….27

Claire Macken, Preventive detention and the right of personal liberty and security under the

International covenant on Civil and Political Rights, 1966, (2005) 26 Adelaide Law Review,

University of Columbia;(Global Freedom of Expression paper) ………………………….32

WHO, Managing Epidemics……………………………………………………………..…33

Ian Turner, Judicial Review, Irrationality and the Review of Merits……..........................40

10
Nottingham l.j. 37, 40 (2006); Jonas Christoffersen, fair balance: proportionality, subsidiary

and primarily in the European convention on  Human rights 78 (2009)…….......................28

Michael A. Jacob, ‘Security of the Person and Security of the State: Human Rights and

Claims ofNational Security’, 9 YALE J. WORLD PUB. ORD…………………………….27

INTERNET MATERIALS

Christina Pazzanesse, Harvard Staff Writer, Calculating possible fallout of Trump’s

dismissal of face masks https://news.harvard.edu/gazette/story/2020/10/possible-fallout-

from-trumps-dismissal-of-face-masks/..................................................................................36

Mary Anne Frank, ‘Drafting an Effective “Revenge Porn” Law: A Guide for Legislators’

(SSRN, 17 August 2015) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2468823>

(‘A Guide for Legislators’). ……………………………………………………..………….40

MISCELLANEOUS

Art-19, Prohibiting Incitement to discrimination, violence and hostility, Policy Brief, 2012.

Joint Declaration on Freedom of Expression and “Fake News,” Disinformation and

Propaganda,FOM.GAL/3/17,Mar.3,2017..................................................................33, 34, 37

11
 STATEMENT OF RELEVANT FACTS

1. POLITICAL BACKGROUND OF IZED

Ized is a land-locked tropical country with a population of 20 million people. It has two major

political parties: The National United Alliance (NUA), and the Democratic Socialist Party

(DSP), current government. The Social Democratic Workers Union (‘The Union’) is a trade

union with legal personality. It is loosely affiliated with the DSP. The Union publishes a

weekly magazine called ‘Unite’ which sells on average around 4,000 copies a week.

2. PRESENCE OF MEDIA PLATFORMS IN IZED

A number of private media institutions disseminate news and opinion to the public in Ized.

National Networkis by far the largest media service provider in Ized. It is estimated to have a

virtual monopoly in the media sector. National Network has three television channels and two

radio channels. It also hosts Ized’s most popular social media platform, ‘The Net’, which has

over 4 million users. The NUA’s general secretary, Gus Dabyu, sits on the board of directors

of National Network. Dabyu publicly announced that he would not be contesting anyelection

while he serves on the board.

The Net features a simple user interface that permits Netizens to organize ‘Net-Assemblies’,

where several users can gather to share their opinion and raise public issues. Any Netizen can

organize a Net-Assembly by clicking on the option ‘Organize a Net-Assembly’ and then

inviting their followers to join the Net-Assembly. A Net-Assembly functions as its own

webpage featuring the opinion of all Netizens who have joined the Net-Assembly. Each Net-

Assembly has a unique ‘Net Tag’ which is the main slogan the Net-Assembly is associated

with.

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 3. NIDV CRISIS

Novel Immuno-Deficiency Virus (hereinafter NIDV) has been compared to HIV, but has

been identified as distinct from HIV. Medical experts generally agree that it is not as deadly

as HIV. Although the means through which it is transmitted is not fully understood, some

experts believe the virus is that it is a vector-borne disease and it could be transmitted through

mosquitoes. Incidentally, given its tropical climate, Izedisknown to have diurnal and

nocturnal mosquitoes.

According to official statistics, nearly 30,000 cases of NIDV were recorded since September

2019, and 420 deaths were attributed to the virus.

4. REFORMS BY NEW GOVERNMENT

NUA secured a clear majority in parliament and introduced new policies promised during the

campaign.

Privatization of healthcare, as the government believed that the state health sector was

‘unprofessional’ and that the lack of professionalism had led to the NIDV crisis. The

government also believed that the new reform would ensure the retention of most of the

current employees of the state health sector, but that the government would dismiss

inefficient and unprofessional employees following a comprehensive vetting process. The

new government enacted a new National Security Act (hereinafter NSA) to regulate the use

of ‘public sites’ and to authorize the state to designate specific ‘public sites’ that may be used

to conduct ‘gatherings’ as well as to regulate publications during a public emergency.

13
On 1st February, the Minister of Defence issued a regulation declaring a state of public

emergency for a period of three months. The regulation designated Ized’s Central Public

Park, located in Ized’s capital Vaai, as the site on which gatherings may be held during the

emergency period. The decision was based on the reasoning that Park has ample space for

gatherings and could be ‘regularly fumigated’ to mitigate exposure to mosquitos.

The measure was welcomed by hundreds of Netizens on The Net. Many posted comments

praising the measure as a ‘good balance’ between the people’s rights and the NIDV health

crisis. Demonstrations took place at the Park unhindered.

5. DEMONSTRATIONS CONDUCTED BY UNION

On 4th February, the Union announced organization of a demonstration on 14 th February to

protest the privatization of healthcare services in Ized. On 13 th February, the Union issued

another statement calling upon all supporters to gather outside the Vaai General Hospital,

which was one of the first hospitals scheduled to be privatized.

The Ministry of Defence immediately released a statement specifying that the planned

demonstration was unlawful under section 22 of the NSA, and that any person attending the

demonstration would be arrested.

On 14th February, members of the Union, including its leader Jo Xana, made their way to the

Vaai General Hospital to conduct a demonstration. Approximately 400 persons, including

state health sector employees, joined the demonstration.

Xana and some demonstrators were the arrested. Xana was charged under section 22 of the

NSA and released on bail. The Government decided to release all other demonstrators

without pressing charges. On 3th March, Xana was convicted in the High Court of Ized under

section 22 of the NSA. The Court sentenced her to three months imprisonment, but

14
suspended the sentence for one year. She appealed her conviction before the Supreme Court –

the highest court in Ized which upheld her conviction and sentence.

On 10th March 2020, the Union decided to launch what it called a ‘digital demonstration’ on

The Net. Netizens who were Union members launched a series of Net-Assemblies to criticize

the government’s healthcare reforms and to protest the use of the NSA.

6. MEASURES AGAINST FAKE NEWS

On 16th march, the Ministry of Health issued a report that contained the latest statistics on

NIDV. The report stated that, since the new government was installed, ‘only 4,300 new cases

of NIDV’ and only ‘140 new deaths’ were recorded.The report claimed that there was

‘credible evidence’ to suggest that the virus ‘could be transmitted via vectors including

mosquitos’.

The Minister of Defence issued a statement that ‘due to the spread of disinformation that

posed grave risks to public health and public order, the Ministry will be taking strong action

under section 22 of the NSA to arrest persons who organize unauthorized gatherings on social

media platforms.’ And under section 23 of the NSA prohibiting the publication of any

opinion of any Medical expert or other person, with respect to NIDV, without obtaining prior

authorization from the Ministry of Health. The guidelines specified that all communication

with regard to NIDV would be ‘centralized’ due to the rapid increase in disinformation,

which posed a Serious threat to public health.

The next day, the board of directors of National Network met to discuss the Ministry of

Health Report and the Ministry of Defence statement and guidelines. It unanimously decided

that the Net-Assembly feature of The Net would be temporarily discontinued until further

notice.

15
 7. DECISION OF SUPREME COURT

On 20th March, both Xana and the Union decided to file petitions before Ized’s Supreme

Court complaining violation of their rights under articles 10 and 11 of the Constitution. The

Court determined that Xana’s and the Union’s rights were not violated.

Therefore, Xana and the Social Democratic Workers Union have sought relief from the

Universal Court of Human Rights.

16
17
 STATEMENT OF JURISDICTION

Xana, The Social Democratic Workers Union, and Ized, which is party to the International

Covenant on Civil and Political Rights (ICCPR), have submitted their differences to the

Universal Court of Human Rights (‘this Court’), and hereby submit to this Court all the

disputes concerning articles 19 & 21 of the ICCPR.

On the basis of the foregoing, this Court is requested to adjudge the dispute in accordance

with the rules and principles of international law, including any applicable declarations and

treaties.

18
 QUESTIONS PRESENTED

A. Whether Ized’s decision to enact section 22 of the National Security Act, and to designate

the Central Public Park as the sole public site to hold public gatherings, violated Xana’s

and the Social Democratic Workers Union’s rights recognized by articles 19 and 21 of

the ICCPR?

B. Whether Ized’s decision to convict Xana under section 22 of the National Security Act

violated her rights recognized by articles 19 and 21 of the ICCPR?

C. Whether Ized’s decision to issue the statement of 16 March violated the Social

Democratic Workers Union’s rights recognized by articles 19 and 21 of the ICCPR?

D. Whether Ized’s decision to issue guidelines under section 23 of the National Security Act

on 16 March violated the Social Democratic Workers Union’s rights recognized by

article 19 of the ICCPR?

19
 SUMMARY OF ARGUMENTS

A. IZED’S DECISION TO ENACT SECTION 22 NSA, AND TO DESIGNATE THE CENTRAL

PUBLIC PARK AS THE SOLE PUBLIC SITE TO HOLD PUBLIC GATHERINGS, WAS

JUSTIFIED.

Ized’s decision to enact section 22 of the National Security Act, and to designate the Central

Public Park as the sole public site to hold public gatherings, did not violate Xana’s and the

Social Democratic Workers Union’s rights recognised by articles 19 and 21 ofthe ICCPR.

Firstly, Section 22 of NSA is in conformity with the articles 19 and 21 of ICCPR. The right

to freedom and expression under article 19(2) of the ICCPR is not absolute. Interference by

such law would be lawful if it is prescribed by law, pursues a legitimate aim, and is necessary

in democratic society. The test of ‘necessity in a democratic society’ turns on the principle of

proportionality–in that the measures taken by States must be proportionate to the legitimate

aim pursued. The enactment was least restrictive means used by Ized to curtail the threat to

national security.

Secondly, Section 22 of NSA restricts only the derogable rights of individuals as prescribed

under article 4 of ICCPR. ICCPR allows for a State party to derogate from a part of its

obligations under the covenant at the time of public emergency. A State can derogate from

the rights provided under the covenant during, for instance a natural catastrophe. State is

required to provide effective remedies for curtailing any right under the covenant. Minister of

Defence while proclaiming public emergency positively designated Ized’s Central Public

Park as the site where public gathering may be held during the period of emergency.

Therefore, Ized’s decision was justified.

20
B. IZED’S DECISION TO CONVICT XANA WAS JUSTIFIED.

Ized’s decision to convict Xana under section 22 of the National SecurityAct violated her

rights recognised by the ICCPR. Jo Xana was arrested by Ized’s authorities within the

purview of the NSA as a result of direct violation of the provisions. Firstly, the arrest and

conviction of Xana followed the mandate under ICCPR and therefore her rights were not

violated. These restrictions can be imposed in the light of national security passed through

legislations rather than traditional, religious or other such customary laws.

Secondly, Xana’s incited speech deprives her from any remedy of ICCPR. Jo Xana’s

unlawful assembly at Vaai Hospital and inciting speech was a direct violation of the

legislation and deprived her of any constitutional rights. The concept of ‘peaceful’ assembly

does not cover gatherings where organizers or participants have violent intentions or incite

violence. In order to prevent public order, violence, and public health Ized’s decision was

justified.

C. IZED’S DECISION TO ISSUE THE STATEMENT OF 16TH MARCH WAS JUSTIFIED.

Ized’s decision to issue the statement of 16 th March did not violate the Social Democratic

Workers Union’s rights recognised by the Covenant. Firstly, the statement was issued to

pursue legitimate aim. The Ministry of Defence in public interest had issued a statement

under Section 22 of the National Security Act to prevent any confusion in public during the

health emergency, created through unreliable sources. The campaigns led by the Union and

other political groups can endanger people's life because of sheer ignorance and

misinformation. Such campaigns with heavy misinformation had all potential to threaten

public health.

21
Secondly, the statement was issued for 'pressing social need' of managing public health.

Access to reliable information is of utmost importance and it is the state’s responsibility to

prevent any sort of confusion, misinformation. In the present case there was a ‘pressing social

need’ for interference in freedom of expression during a public health emergency to manage

the health crisis that erupted due to this infectious disease. Therefore, the issuance of

statement was justified.

D. IZED’S DECISION TO ISSUE THE GUIDELINES OF 16TH MARCH WAS JUSTIFIED.

Ized’s decision to issue the guidelines of 16 th March did not violate the Social Democratic

Workers Union’s rights recognised by article 19 of the Covenant. Firstly, the guidelines were

prescribed by law because the guidelines and Section 23 of NSA were sufficiently precise

and there were adequate safeguards to check the arbitrary application of the guidelines.

Secondly, the guidelines and Section 23 of NSA pursued a legitimate government interest of

protecting public health in the light of the ongoing NIDV health crisis. Lastly, the guidelines

and Section 23 of NSA were necessary in a democratic society and the restrictions imposed

were proportionate to the desired aim. Accordingly, the restrictions imposed under the

guidelines fulfil the test prescribed under Article 19(3) of the covenant and hence, are lawful.

22
 ARGUMENTS PRESENTED

E. IZED’S DECISION TO ENACT SECTION 22 OF THE NATIONAL SECURITY

ACT DID NOT VIOLATE ARTICLE 19 & 21 OF ICCPR.

Xana and the Social Democratic Workers Union’s application claiming Section 22 to be in

violation of articles 19 and 21 of ICCPR has no basis for two-reasons, [A.1.] Section 22 of

NSA is in conformity with the article 19 and 21 of ICCPR. [A.2.] Section 22 of NSA restricts

only the derogable rights of individuals as prescribed under article 4 of ICCPR.

A.1. SECTION 22 OF NSA IS IN CONFORMITY WITH THE ARTICLE 19 AND ARTICLE 21 OF

ICCPR.

The right to freedom and expression1 under article 19(2) of the ICCPR is not absolute. 2

Interference by such law would be lawful if it is prescribed by law (i), pursues a legitimate

aim (ii), and is necessary in democratic society (iii).3

1
International Covenant on Civil and Political Right (ICCPR) (adopted 16 December 1966, entered into force
23 March 1976) 999 UNTS 171 art 19(2); European Convention on Human Rights (ECtHR) (adopted 4
November 1950, entered into force 3 September 1953) art 10; American Convention on Human Rights (ACHR)
(adopted 22 November 1969, entered into force 18 July 1978) art 13; Universal Declaration of Human Rights
(adopted 10 December 1948) UNGA Res 217A (III) (UDHR) art 19; African Charter on Human and Peoples’
Right (adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 (ACHPR) art 9; Arab Charter on
Human Rights (adopted 22 May 2004, entered into force 15 March 2008) 12 IHRR 893 (ArCHR) art 32.

2
UN Human Rights Committee (HRC) CCPR, ‘General comment No 34’ on ‘Article 19 (Freedom of Opinion
and Expression)’ (2011) UN Doc CCPR/C/GC/34, [34]; Handyside v United Kingdom App no 5493/72 (ECtHR,
7 December 1976) [49]; Tae-Hoon Park v Republic of Korea Communication No 628/1995 U.N. Doc
CCPR/C/57/D/628/1995 (1998) [10.3]; Benhadj v Algeria Communication No 1173/2003 U.N. Doc.
CCPR/C/90/D/1173/2003 (2007) [8.10]; Stoll v Switzerland Application No 69698/01 (ECtHR, 10 Dec 2007)
[61]; Hachette Filipacchi Associes v France App no 71111/01 (ECtHR, 12/11/2007 [40]; Mouvement Ralien
Suisse v Switzerland App no 16354/06 (ECtHR, 13 July 2012) [48]; Animal Defenders International v United
Kingdom App no 48876/08 (ECtHR, 22 April 2013) [100].

3
U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
Frank La Rue (2013) [24]; Refah Partisi (The Welfare Party) and Others v Turkey App nos. 41340/98,
41342/98, 41343/98 and 41344/98 (ECtHR, 13 February 2003) [50]-[85]; Mukong v Cameroon Communication
no. 458/1991 U.N. Doc. CCPR/C/51/D/458/1991 (1994). [9.7]; Magyar TartalomszolgáltatókEgyesülete and
Index hu Zrt v Hungary Application no 22947/13; Delfi AS v Estonia [GC] App no 64569/09 (ECtHR, 16 June
2015) [119].

23
 iv. Interference by such law would be lawful if it is prescribed by law.

The restrictions under NSA were enacted under laws of parliamentary privilege 4 captioned

with the legislature intent of national security and public health. An interference is provided

by law, when it has basis in domestic law, that such law is accessible to the public,

foreseeable as to it affects 5 and formulated with sufficient precision to enable an individual to

regulate his or her conduct accordingly.6

(a) The NSA was accessible.

A law is accessible when citizens are able to have sufficient indication of the legal rules

applicable to a given case.7 Since Xana is a naturalized citizen of Ized and leader of union

which is trade union with legal personality 8, both were have well aware of passing and

enactment of NSA.

(b) Ized’s enactment of NSA was foreseeable

The element of foreseeability implies that the law must be formulated with adequate

precision to enable a person to reasonably foresee the consequences which a given action

may entail.9 The scope of Section 22 of NSA relates to imposing reasonable restriction on

4
Dissanayake v Sri Lanka Communication No. 1373/2005 U.N. Doc.A/63/40, Vol. II, (HRC 2008)
[109].
5
Delfi AS v Estonia [GC] App no 64569/09 (ECtHR, 16 June 2015) [120];
VgTVereingegenTierfabriken v Switzerland, Communication No. 24699/94 [52].
6
De Groot v The Netherlands Communication No. 578/1994, U.N. Doc. CCPR/C/54/D/578/1994 (1995)

7
Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979) [49]; Silver v The United
Kingdom App no 5947/72, 6205/73, 7052/75, 7061/75, 7107/75 (ECtHR, 25 March 1983)
8
Competition Case, para 7.
9
G.C. 34 (n 2).

24
public gatherings in the event of pubic emergency that threatens the life of nation and also

designates the site on which gatherings may be held during the emergency period.10

There is proximate nexus between the threat and the restriction imposed by the Ized

government in consequent with widespread of NIDV (‘Novel Immuno-Deficiency Virus’)

virus across the country and threat of spreading among the masses which led to enactment of

Section 22 of NSA.

Subsequently, even if such phraseology in Section 22 carry any ambiguities or uncertainty 11

or may liable to more than one meaning 12, the interpretation and application of the NSA are

questions of practice for the Ized courts to determine. 13Hence, the enactment of the Section

22 of NSA was prescribed by law with bona fide concern towards public.

v. Enactment of Section 22 of NSA met the legitimate purposes.

The law must be enacted pursuant to legitimate governmental interest. 14 Public health is one

of the identified legitimate aims that “may be invoked as a ground for limiting certain rights

in order to allow a State to take measures dealing with a serious threat to the health of the

population or individual members of the population”.15

10
Competition Case, para 14.
11
Jobe v the United KingdomApp no 48278/09 (ECtHR, 14 June 2011) [8].
12
Leyla Şahin v Turkey [GC] App no 44774/98 (ECtHR, 10 November 2005) [91], Gorzelik and
Others v Poland [GC] App no 44158/98 (ECtHR, 17 February 2004) [65].
13
Delfi (n 3) [127]; Gorzelik (n 12) [67].

14
Zana v Turkey (1997) 27 EHRR 607, [28].

15
UN Economic and Social Council, The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, UN Doc
E/CN.4/1985/4, para 22.

25
The Ized government passed the NSA pursuant to protection of national security and public

health- aims explicitly prescribed by the ICCPR. 16 The purpose of Section 22 of NSA is to

regulate the use of ‘public sites’ and to authorize state to designate specific ‘public sites’ that

may be used to ‘conduct gatherings’.17The increased cases of NIDV in state led to event of

public emergency that threatens the life of the whole nation, often gatherings by citizen may

lead to spread of virus to whole state which would disrupt public health in state. 18

Subsequently, the enactment was least restrictive means used by Ized to curtail the threat to

national security.

The phraseology of section 22 of NSA suggests that government would designate a public

site which in turn would be convenient to fumigate, thus ensuring public health of the

demonstrators.19 Therefore the government enacted the legislation with a legitimate aim of

ensuring public health.

Here, the widespread of NIDV virus and misinformation carried out by past government 20

regarding genesis of virus21 and statistics of cases22 posed a serious risk to Ized’s public

health and enactment of Section 22 of NSA serves legitimate aim.

16
ICCPR, art 19(3).
17
Competition Case, para 14.
18
Competition Case, para 15.
19
Competition Case, para 16.
20
ibid.
21
ibid.
22
ibid.

26
 (1.1.iii) The invocation of the law is necessary in current statuesque of society .

The test of ‘necessity in a democratic society’ turns on the principle of proportionality, in that

the measures taken by States must be proportionate to the legitimate aim pursued.23 The

relevant restrictive measures taken by Ized’s Government are conforming with principle of

necessity because Ized was facing threat of NIDV and extension of cases around the country,

whereas restrictions imposed was necessary to maintain public health and human rights law

allows for the limitations of certain non-absolute rights for the protection of public health.

The limitation was appropriate to achieve protective function for curtailment of virus across

the country and also demonstrated ground of public health in specific and individualized

fashion of the precise nature of threat. The spread of NIDV and threat to public health

establish a direct and immediate connection between the expression and the threat.24

The health care workers as well as government was oblivious about the origin of the virus

and official statistics exhibits 30,000 cases of NIDV since September 2019, and 420 deaths

were attributed to the virus. The rapid increase of NIDV, spread of misinformation that would

endanger the national security of nation and create an environment for non-state actors to

escalate threat towards sovereignty of nation. The enactment of Section 22 was in accordance

with due process of law and evenly passed in parliament of Ized and also inconformity with

constitution of Ized. The threat of virus was alarming; hence invocation of Section 22 of NSA

was necessary for maintaining statuesque of the society.

23
G.C. 34 (n 2) [33]; Nikula v Finland App no 31611/962 (ECtHR, 1 March 2002) [47].
24
Shin v Republic of Korea Communication No. 926/2000,UN Doc CCPR/C/80/D/926/2000.

27
A.2. SECTION 22 OF NSA RESTRICTS ONLY THE DEROGABLE RIGHTS OF INDIVIDUALS AS

PRESCRIBED UNDER ARTICLE 4 OF ICCPR.

ICCPR allows for a State party to derogate from a part of its obligations under the covenant

at the time of public emergency.25 The idea of limitations is based on the recognition that

most human rights are not absolute but rather reflect a balance between individual and

community interests.26A State may invoke article 4 of ICCPR only when the situation

amounts to a public emergency which threatens the life of a nation, and the State party must

have officially proclaimed a state of emergency.27

In terms of historical experience28 and international practice, this is a realistic view. 29 Ized’s

Minister of Defense through a regulation dated 01/02/2020 declared a public emergency. 30

The emergency was proclaimed keeping in mind the enormous hike in number of NIDV

cases.31 Therefore the situation in Ized amounts to a threat to the life of Ized.

25
ICCPR, art. 4; UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4:
Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev1/Add.11 [1], para 1.

26
Erica Daes, The Individual’s Duties to the Community and the Li432/Revmitations on Human
Rights and Freedoms under Article 29 of the U.D.H.R., UN Doc. E/CN.4/Sub.2/2 (1983).
27
ICCPR, art. 4(1); G.C. 29 (n 25)[1], para 2.

28
Jaime Oraa, ‘Human Rights in States of Emergency in International Law’ (Oxford Univ Press 1992)
[7].
29
Michael A. Jacob, ‘Security of the Person and Security of the State: Human Rights and Claims
ofNational Security’, 9 YALE J. WORLD PUB. ORD. 1 (1982); Barry Buzan, ‘People, States And
Fear: An Agenda For International Security In The Post-Cold War Era’(Longman 1991); Nicole
Questiaux, ‘Study of the Implications for Human Rights of Recent Developments Concerning
SituationsKnown as States of Siege or Emergency’, UN Doc. E/CN.4/Sub.2/1982/15 (July
1982);International Commission of Jurists, States of Emergency: Their Impact on Human Rights
(International Commission of Jurists 1983); Theodor Meron, ‘Human Rights in Internal Strife: Their
International Protection’ (Grotius 1987).
30
Competition Case, para 16.

31
ibid.

28
Article 4 further requires that the measure taken must be temporary and limited to the extent

strictly required by the exigencies of the situation. 32 The restriction of not conducting or

facilitating the conducting of any gathering at public site was proclaimed in view of the

vector-borne infecting tendency of the NIDV.33 Furthermore the emergency was declared for

a period of three months in order to protect public health and therefore is of a temporary

nature.34 Hence, fulfilling the requirement of article 4 (1).

Additionally, Section 22 of NSA does not restrict any rights mentioned under article 4(2) of

ICCPR.35 On the contrary it prohibits only the right to conduct public gathering which is a

derogable right under article 4 of ICCPR.36 A State can derogate from the rights provided

under the covenant during, for instance a natural catastrophe. 37 The Human Rights committee

is also of the opinion that article 21 of ICCPR can be derogated from during a proclaimed

public emergency.38

The European Court of Human Rights has considered that the natural and customary meaning

of “public emergency threatening the life of the nation” was sufficiently clear. It referred to

“a situation of crisis or emergency which affects the whole population and constitutes a threat

to the organized life of the community of which the state is composed.” 39 The threat to the

life of the nation could be to the physical population, its territorial integrity.

32
ICCPR, Art 4(1); G.C. 29 (n 25) [2], para 5.

33
Competition Case, para 16.

34
ibid.

35
Competition Case, Para 14.

36
ICCPR, art.4(1) & (2).

37
G.C.29 (n 25), para 5.

38
Ibid.

39
Lawless v Ireland [1961] ECHR 2 para 28.

29
State is required to provide effective remedies for curtailing any right under the covenant. 40

Ized’s Minister of Defense while proclaiming public emergency vide its regulation dated

01/02/2020 also designated Ized’s Central Public Park as the site where public gathering may

be held during the period of emergency.41 Therefore, the obligation to provide effective

remedy was also fulfilled by the State of Ized.

40
ICCPR art2(3).

41
Competition Case, para 16.

30
F. IZED’S DECISION TO CONVICT XANA UNDER SECTION 22 OF THE NATIONAL

SECURITY ACT DID NOT VIOLATED HER RIGHTS RECOGNIZED BY ARTICLES 19 AND

21 OF THE ICCPR.

Jo Xana was arrested by Ized’s authorities within the purview of the NSA as a result of direct

violation of the provisions. The arrest and conviction of her followed the mandate under

[B.1.] ICCPR and therefore [B.2.] her rights under articles 19 and 21 were not violated.

B.1. XANA’S ARREST AND CONVICTION WAS IN CONFORMITY WITH MUNICIPAL LAWS AS

WELL AS ICCPR.

Article 19 of ICCPR identifies and accepts conditions under which a speech may be

legitimately restricted and any form of non-compliance is subject to sanctions. 42 These

restrictions can be imposed in the light of national security passed through legislations rather

than traditional, religious or other such customary laws. 43 The harmonious understanding of

paragraph 3 of article 1944, a norm to be characterized as ‘law’ it must be formulated with

precision.

Article 19 of ICCPR identifies and accepts conditions under which a speech may be

legitimately restricted and any form of non-compliance is subject to sanctions. 45 These

restrictions can be imposed in the light of national security passed through legislations rather

than traditional, religious or other such customary laws. 46 The harmonious understanding of

42
ICCPR, art. 19.

43
UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts
and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32; G.C. (n 2) para 24.

44
ICCPR art 19.

45
ibid.

46
G.C. 32 (n 43), G.C. 34 (n 2) para 24.

31
paragraph 3 of article 1947, a norm to be characterized as ‘law’ it must be formulated with

precision for an individual to regulate his/her behaviour accordingly and it must be publicly

available.48

The arrest and conviction conducted under NSA was legitimate because it expressly

mentioned that public gatherings are allowed at ‘designated’ sites only for a temporary period

of 3 months. Despite the warning by the Ministry of defence for using the designated site at

Central Park, Jo conducted a public gathering at Vaai Hospital which was in violation of

section 22 of NSA.

Both international law and national constitutions recognize that freedom of expression can be

restricted where the nation or the contracting state has a wider margin of appreciation in

terms of freedom of expression of matters related to intimate personal convictions. 49 Since the

National Security Act follows in full conformity the mandate of article 10(2) of the

Constitution of Ized allowing restrictions to be placed upon freedom of expression, 50

following conviction of Jo Xana is just and through a due process of law upholding the

constitutional values of the State.

It is humbly submitted that paragraph 2 of article 2 (ICCPR) expresses that direct

applicability of the Covenant in the domestic laws is desirable 51 and important international

47
ICCPR art 19.

48
Groot (n 6).

49
Dr. Agnes Callamard, ‘Expert meeting on the links between articles 19 and 20 of the ICCPR: Freedom of
expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence’ ,
UN HCHR, October 2-3, Geneva <https://menschenrechte.org/wp-content/uploads/2013/05/Freedom-of-
expression-and-advocacy-of-religious-hatred-that-constitutes-incitement-to-discrimination-hostility-or-
violence.pdf> accessed at 4th December, 2020.

50
Competition case.para 29.

51
Consideration of Reports submitted by state parties under Article 40 of the Covenant: Chile, U.N. GAOR,
Hum. Rts. Comm., 37th Sess., mtg. 942, U.N. Doc. CCPR/C/SR. 942 (1989), para 15.

32
legal obligations must be incorporated directly into a constitution, giving them superior status

in domestic law.52 ICCPR provides that no one shall be deprived of his liberty except on such

grounds and in accordance with such procedures as are established by law. 53 Therefore it can

be argued that restrictions on liberty through arrest and conviction are required to be ‘lawful’,

that is, in accordance with the legislative procedures.54

It must also be observed that the interpretation of domestic law is essentially a matter for the

courts and authorities of the State itself and international courts do not consider this

interpretation within its powers and functions.55 Since article 10 of the Constitution of Ized is

structured both verbally and in essence, similar to that of article 19 of ICCPR, 56 The decision

by the Supreme Court to convict Jo Xana is legitimate and not violative of article 10 of Ized’s

Constitution as it respect and interpret through a similar lens of article 19 of ICCPR and

follows its mandate.57

B.2. XANA’S INCITED SPEECH DEPRIVES HER FROM ANY REMEDY UNDER ARTICLES 19 &

21 OF ICCPR.

Jo Xana’s unlawful assembly at Vaai Hospital and inciting speech was a direct violation of

the legislation and deprived her of any constitutional rights. To assess and determine,

whether incitement has taken place, jurisprudence on article 19 has laid down that the Courts

52
Christopher Harland, ‘The Status of the International Covenant on Civil and Political Rights (ICCPR) in the
Domestic Law of State Parties: An Initial Global Survey through UN Human Rights Committee Documents,
Human Rights Quarterly’, Vol. 22, No. 1 (Feb., 2000), page 198.

53
ICCPR art 9(1).

54
Claire Macken, Preventive detention and the right of personal liberty and security under the International
covenant of Civil and Political Rights, 1966, (2005) 26 Adelaide Law Review, page 5.

55
Maroufidau v SwedenCommunication no. R.13/58, 9 April 1981.

56
Competition Case, para 29; ICCPR art 19.

57
Competition Case, para 31.

33
and other actors should review the following elements, on the basis of an extensive review of

the article 19 around the world.58 These elements can be classified as:

• Context: is there a history of violence, discrimination, censorship particularly

targeting specific groups?

• The Speaker: does he/she have influence? Hold positions of power and authority?

Can he/she influence the audience?

• The Speech: is there a direct call for the audience to act in a certain way? Is it

provocative? Inflammatory? Coded?

• The Medium used: Is it public? Frequent? Massive in its outreach?

• The Audience: How large is it? How responsive is it to the speech/speaker? Does it

have the means to act on the speech act (e.g., Was the audience able to commit acts of

discrimination, violence or hostility?) Was the speech reasonably understood by its

audience as a call to acts of discrimination, violence or hostility?59

In the present case, above mentioned elements are fulfilled as the context was regarding the

privatization of the health sector by the newly formed government which Jo Xana’s union

believed to be discriminative towards the public employees of the health sector for which a

protest was organized by her Union.60 Jo Xana during the demonstration was heading the

mass protest and had a power of authority with major influence. 61 Jo Xana delivered a speech

58
Art 19, Op.Cit, Policy brief, 2012 https://globalfreedomofexpression.columbia.edu/wp-content/uploads/
2016/01/A-Callamard-National-Security-and-FoE-Training.pdf accessed at 4 December 2020; Rabat Plan of
Action on the prohibition of the advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence, OHCHR, 2012 https://globalfreedomofexpression.columbia.edu/wp-
content/uploads/2016/01/A-Callamard-National-Security-and-FoE-Training.pdf.

59
Global (n 58)https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2016/01/A-Callamard-
National-Security-and-FoE-Training.pdf accessed at 4 December 2020.

60
Competition Case, para 13,17.

61
Competition Case, para 19.

34
at Vaai Hospital where she encouraged 400 demonstrators over a loudspeaker provoking

them to block the entry and exit of the public hospital.62

It is pertinent to mention that any act which results in deprivation of use of such a public

property is considered to be within the definition of violence. 63 Since the demonstration

resulted in deprivation of the common masses from the use of the public hospital due to the

blockade of the entry/exit points it can be considered that this act of violence was a result of

incitement by Jo Xana.

ECHR has long held that the concept of ‘peaceful’ assembly does not cover gatherings where

organizers or participants have violent intentions or incite violence. 64 Thus Jo Xana’s act

amounting to incitement of violence deprived her of any remedy or relief under article 21 of

ICCPR.

62
ibid.

63
Art 19, Prohibiting Incitement to discrimination, violence and hostility, Policy Brief, 2012, [19].

64
Lashmankin v Russia (2017), Application No 57818/09 and 14 others, 7 February 2017, para 402; Stankov
and the United Macedonian Organisation Ilinden v Bulgaria, Application No 29221/9529221/95 and
29225/9529225/95, 2 October 2001, para 77; Fáber v Hungary, Application No 40721/08, 24 July 2012, para
37.

35
G. IZED’S DECISION ON 16TH MARCH DID NOT VIOLATE SOCIAL DEMOCRATIC

WORKERS UNION’S RIGHTS RECOGNISED BY ARTICLES 19 & 21 OF THE ICCPR.

Ized did not violate articles 19 & 21 of ICCPR as [C.1] the statement was issued to pursue

legitimate aim and [C.2] the statement was issued for ‘pressing social need’ of managing

public health.

C.1. THE STATEMENT WAS ISSUED TO PURSUE LEGITIMATE AIM.

The Ministry of Defence in public interest had issued a statement under Section 22 of the

National Security Act to prevent any confusion in public during the health emergency,

created through unreliable sources. The point of consideration is on the proportion of

measures undertaken by the state and whether it has ‘legitimate aim’ to pursue or not.

article19(3) has exceptions for restricting rights related to freedom of expression and public

health is a legitimate ground for interference.65

The administrative statement by the Ministry was legal under article 19(3)(b) on grounds of

‘public health’.66 The statement was also legal because it did not prohibit disclosure of

information but mechanised a process to publish authentic information elaborated in the

guidelines. This was the narrowest measure which the government could have undertaken

during such a grave health crisis.67 It was high time when government’s interference was not

only needed to convey authorized reliable information for welfare but also to prevent any

misuse of the health crisis by political forces. Mismanagement and chaos cannot be afforded

during a health emergency. The campaigns led by the Union and other political groups can

65
G.C. 34 (n 2), para 29.

66
ICCPR, art 19(3)(b).

67
‘Disease Pandemic and the freedom of opinion and expression’, Human Rights Council, 44th Session,
A/HRC/44/49.

36
endanger people’s life because of sheer ignorance and misinformation. Such campaigns with

heavy misinformation had all potential to threaten public health.

In Balsytė v Lithuania, ECtHR considered that interference with freedom of expression could

be reasonably considered for protection of the reputation or rights of others. 68 In such times of

pandemic when public movement is injurious to their health, the most important source of

communication is from the online mode and social networking sites. Unverified and

hypothetical fear as it was created through campaigns during a health emergency through

political forces was a grave threat to ‘public health’ which disregarded the cause of disease.

The world has already witnessed a lot of damage has been done by negative campaigns

against precautionary measures which has led to loss of lives. 69 The Indian Supreme Court

had in fact ordered that ‘no mask violates the right to life of others’ and those not adhering to

guidelines violate fundamental rights of the public at large. 70 Any campaign against such

disease which can cause danger to lives had to be prevented by the Ministry of Defence. The

order was issued only for dealing with public health emergency and was not a general norm.

The Ministry had decided to centralize all communication with regard to NIDV.71 The state

did not intend or instruct to prohibit free speech and expression in Ized but acted in good faith

for providing reliable information. The orders were in consonance with the law and had the

scope for processing any information from the public in public domain.

68
Balsytė-Lideikienė v Lithuania, App. No. 72596/01, EUR. CT. H.R. (2008).

69
Christina Pazzanesse, Harvard Staff Writer, ‘Calculating possible fallout of Trump’s dismissal of face masks’
<https://news.harvard.edu/gazette/story/2020/10/possible-fallout-from-trumps-dismissal-of-face-masks/>

70
Suomoto Writ Petition (Civil) No. 7 of 2020, Supreme Court of India https://www.livelaw.in/top-stories/face-
mask-community-service-gujarat-hc-stay-supreme-court-166744

71
Competition Case, para 27.

37
C.2. THE STATEMENT WAS ISSUED FOR ‘PRESSING SOCIAL NEED’ OF MANAGING PUBLIC

HEALTH.

Access to reliable information is of utmost importance and it is the state’s responsibility to

prevent any sort of confusion, misinformation. 72 In 2018, the ECtHR had pronounced in a

decade old case of Stomakhin v Russia, where the state had convicted an individual and

prohibited his newsletter distribution due to exaggerated criticism which was a threat to

public order. The Court rationale was on ‘limits of acceptable criticism’ which meant that

even after the expression being protected under international law, if it threatens public order

then is liable to be punished. 73 The case highlights the need of ‘pressing social need’ for

restricting free speech.74 In the present case there was a ‘pressing social need’ for interference

in freedom of expression during a public health emergency to manage the health crisis that

erupted due to this infectious disease.

The Special Rapporteur on Freedom of Opinion and Expression UN, OSCE, OAS, ACHPR

(Add in Abbreviations) had issued a joint statement on Freedom of Expression and Fake

News, Disinformation and Propaganda in 2017 on ways of addressing misinformation and

fake news. Amongst many suggestions the statement suggested that state actors shall ensure

dissemination of reliable and trustworthy information.75 The statement warned individuals of

strict action such as arrest under Section 22 of NSA so that no one gets involved in

propaganda. This was one measure to tackle chaos on social media platforms. Ized did not

violate articles 19 or 21 of ICCPR as all these delegated legislative steps were undertaken to

72
WHO Report, Managing Epidemics, [34].

73
Stomakhin v Russia App no 52273/07, para 103.

74
Ibid, para 90.

75
‘Joint Declaration on Freedom of Expression and “Fake News” Disinformation and Propaganda’,
FOM.GAL/3/17, Mar. 3, 2017, <https://www.osce.org/fom/302796?download=true.> accessed at 3rd November
2020.

38
protect the population leaving no scope for any mishap or loss of lives, falling under

exceptions in article 19(3)(b).

39
H. IZED’S DECISION TO ISSUE GUIDELINES UNDER SECTION 23 OF THE NATIONAL

SECURITY ACT ON 16 MARCH DID NOT VIOLATED THE SOCIAL DEMOCRATIC

WORKERS UNION’S RIGHTS RECOGNISED BY ARTICLE 19 OF THE ICCPR.

The guidelines issued by the Government under section 23 of NSA fulfilled three-part test,

[D.1] it was prescribed by law, [D.2] pursued a legitimate aim [D.3], it was necessary and

proportionate in the democratic society of Ized.

D.1. THE GUIDELINES ISSUED UNDER SECTION 23 OF NSA WAS PRESCRIBED BY LAW.

A restriction imposed on the freedom of speech and expression under a legislation is

prescribed by law if it qualifies the two part test, i.e. (i) the statute is sufficiently precise; and

(ii) there are adequate safeguards.76

iii. Section 23 of NSA was sufficiently precise because the SDWU could reasonably

foresee liability for publishing misinformation with respect to NIDV.

Legislation is said to be sufficiently precise if individuals can reasonably foresee that their

conduct will attract liability under it.77 Section 23 of NSA prescribed that in the event of a

public emergency any person failing to comply with the guidelines issued by Minister of

Defenseshall be an offence punishable with a fine of no more than USD 2,000. 78 The act of

publishing self-proclaimed medical reports in the “Unite” magazine by the SDWU violated

the guidelines issued under Section 23 of NSA.79

76
Silver (n 6) para 85-90; Malone v UK App no 8691/79 (ECtHR, 2 August 1984) para 67-68; Weber
and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006) para 93-95.
77
Wingrove v UK App no 17419/90 (ECtHR, 25 November 1996) para 40; Editorial Board of
PravoyeDelo and Shtekel v Ukraine App no 33014/05 (ECtHR, 5 August 2011) para 51–52;
Dmitriyevskiy v Russia App no 42168/06 (ECtHR, 3 October 2017) para 78; G.C. 34 (n 2) para 25.
78
Competition Case, para 15.
79
Competition Case, para 26.

40
Further, required criteria of precision in legislation are dependent on the content and the area

of law concerned80 in the emerging socio-political contexts.81 The guideline issued under

Section 23 of NSA was issued to counter the emerging false content relating to NIDV on the

platform of Net.82 Censoring of information that might potentially harm public health has

been widely recognized and is an established state practice in many countries like India,

Kenya, Bangladesh, Mauritius, Hong Kong, China etc.83

iv. There were adequate safeguards because Ized did not placed unfettered discretion

to restrict speech.

Legislation is said to have adequate safeguards where it clarifies the scope of sanctioned

speech and the manner of exercising the said sanction. 84 The guideline issued under Section

23 of NSA prohibited only the publication of any medical opinion relating to the NIDV. 85

Furthermore, the prohibition was not absolute as the guideline provided the manner of

80
Editorial Board (n 77) para 52; Centro Europa 7 SRL and Di Stefano v Italy App no 38433
(ECtHR, 7 June 2012) para 142; Delfi(n 3) para 72; Karáscony v Hungary App nos 42461/13 and
44357/13 (ECtHR, 17 May 2016)para 125; SatakunnanMarkkinaporssiOy and SatamediaOy v
Finland App no 931/13 (ECtHR, 27 June 2017) para 144.
81
Müller v Switzerland App no 10737/84 (ECtHR, 24 May 1988) para 29; Kokkinakis v Greece App
no 14307/88 (ECtHR, 25 May 1993) para 40; Gorzelik and others v Poland App no 44158/98
(ECtHR, 17 February 2004) para 64; Lindon, Otchakovsky-Laurens and July v France App no
21275/02 (ECtHR, 22 October 2007) para 41; Delfi(n 3) para 71, 75; Mary Anne Frank, ‘Drafting an
Effective “Revenge Porn” Law: A Guide for Legislators’ (SSRN, 17 August
2015)https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2468823(‘A Guide for Legislators’)
accessed 21 January 2018; Dmitriyevskiy(n 77) para 79.
82
Competition Case, para 27.
83
Law Library: Library of Congress, Freedom of Expression during Covid-19, September 2020.
<https://www.loc.gov/law/help/covid-19-freedom-of-expression/freedom-of-expression-during-covid-
19.pdf>
84
Silver (n 6) para 90; Huvig v France App No 11105/84 (ECtHR, 24 April 1990) para 34; Liu v
Russia (No 2) App no 29157/09 (ECtHR, 26 July 2011) para 88.
85
Competition Case, para 27.

41
centralizing communications relating to NIDV.86 The opinions on NIDV were subjected to

prior authorization with Ized’s Ministry of Health. 87 Accordingly, the guideline issued by the

Minister of Defense is prescribed by law.

D.2. THE GUIDELINES ISSUED UNDER SECTION 23 OF NSA PURSUED A LEGITIMATE AIM.

As adumbrated above,88 law must be enacted pursuant to a legitimate governmental interest. 89

Public health is one of the identified legitimate aims that “may be invoked as a ground for

limiting certain rights in order to allow a State to take measures dealing with a serious threat

to the health of the population or individual members of the population”.90

The ECtHR in the case of Cisse v France held that restrictions on freedom of speech and

expression and peaceful assembly are justified where the health of participants in an

assembly becomes seriously compromised. The guidelines were issued to regulate the spread

of misinformation which posed a serious threat to health of protesting individuals and expose

them to the virus. Accordingly, the guidelines pursued a legitimate governmental interest.

D.3. THE GUIDELINES ISSUED UNDER SECTION 23 OF NSA QUALIFIED THE NECESSITY

AND PROPORTIONALITY TEST IN DEMOCRATIC SOCIETY.

86
ibid.
87
ibid.
88
Memorial Argument [1.1.ii].
89
Zana v Turkey (1997) 27 EHRR 607, [28].

90
UN Economic and Social Council, The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, UN Doc
E/CN.4/1985/4, para 22.

42
The guidelines were issued under Section 23 considering that the disinformation of NIDV

virus pose a threat to public health as well as public order. Hence the issued guidelines were

(i) necessary in Ized and (ii) were proportionate to the cause of action.

iii. The imposed guidelines were necessary in the democratic society of Ized.

ICCPR provides for the states to deploy regulatory measures as restrictive means when there

is a threat to public order under the test of necessity. 91 These regulatory measures must not be

arbitrarily imposed rather should be prescribed by law with reason. 92 A dispute was initiated

as to the origin of virus and the claims by the Social Democratic Worker’s Union’s

potentially created a divide in the general opinion for the origin of virus being non-vector

borne in nature and therefore the whole regulatory mechanism by the government concerning

the NIDV virus was illegitimate in their opinion.93

Hence to avoid any further commotion in the State of Ized it was a necessary measure to

regulate the content and opinions of medical experts being published by scrutinizing and then

allowing for the publishing.

iv. Guidelines imposed were proportionate in nature.

Article 19(3) provides for the restrictions which can be imposed if the reason is suffice to

recognize threat to public order.94 One of the qualifications for a restriction to be legitimate is

91
General Comment No. 27, 1999, CCPR/C/21/Rev1/Add.9 HRI/GEN/1/Rev9 (Vol.I) 2008, [223 –
227], para 11 – 16.
92
UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental
Freedoms While Countering Terrorism, A/HRC/13/37, 28 December 2009, para 11.
93
Competition Case, para 27.
94
G.C. 34 (n 2).

43
the proportionality test which provides that for a measure to be proportional in nature, it

should be the least intrusive measure so as to strike a balance between the freedom of

expression and the restriction imposed.95

The series of digital demonstrations conducted by Social Democratic Worker’s Union

constantly spread the disinformation regarding the virus and incite the public towards the

government to fulfill their own ulterior motive. Subsequently, on 15 th March 2020, the

unauthentic article published under the nom de plume ‘Joxx’ spread the plethora of

disinformation regarding the virus which potentially created a threat to public order.

On 16th March, primarily government issued a report containing all official statistics of NIDV

and origin of the virus i.e., vector borne and further issued guideline under Section 23 of

NSA regulating rather than prohibiting any opinion of any medical expert or other person,

with respect to NIDV, without obtaining prior authorization from the Ministry of Health. The

guidelines specified that all communication regarding NIDV would be centralized due to

rapid increase in disinformation. The guidelines issued were least intrusive in nature and was

proportionate in democratic society to achieve public order and eliminate all serious threat to

public health.

95
Ian Turner, Judicial Review, Irrationality and the Review of Merits, 15 NOTTINGHAM L.J. 37,
(2006) [40]; Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in The
European Convention On Human Rights (2009) [78].

44
 PRAYER

For the foregoing reasons, the Applicants respectfully request this Honorable Court to

adjudge and declare that:

1. The enactment of section 22 of NSA by designating Central park as the sole public

site for demonstrations did not violate Jo Xana and Social Democratic Workers

Union’s rights under articles 19 and 21 of ICCPR.

2. The conviction of Jo Xana under section 22 of NSA was a legitimate act and did not

violate her rights under articles 19 and 21 of ICCPR.

3. The issuance of statement for prosecution under section 22 for arranging Net

Assemblies on 16th March by the Government did not violate Social Democratic

Workers Union’s rights under article 19 and 21 of ICCPR.

4. Government’s issuance of guidelines under section 23 of NSA for prohibiting

publications did not violate Social Democratic Workers Union’s right to freedom of

expression under article 19 of ICCPR.

And/Or

Pass any other relief that it may deem fit in the ends of justice, equity and good conscience.

All of which is humbly and respectfully submitted.

4 January 2020,

Sd/-

115R

Counsels for Respondents

45