Mass Testing Case

Mass Testing Case

Mass Testing Case

Re: the Legality of testing Asymptomatic & Healthy people using Molecular tests which cannot evidence Infection

 

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Facts of the Case

  • Dates: Jan 11, 2022
  • Location: Bombay, India
  • Court: High Court
  • Case #: Writ Petition No. WPL/1018/2022
  • Plaintiff: Amber H. Koiri
  • Plaintiff’s Lawyer: Ohja
  • Defendant: State of Maharashtra & Others
  • Trial Type: Writ Petition
  • Judge:
  • Status: Decided
  • Verdict: for the Plaintiff


*This case was edited & reviewed by the Lawyer Dipali Ohja

*updated Feb 25, 2022

Background

The Petitioner has filed a writ on 8 Jan 2022 seeking investigation by premiere investigation agency of India – The Central Bureau of Investigation (CBI) into the decision of Maharashtra Government & Municipal bodies to test asymptomatic and healthy people and thereby causing misappropriation of public funds on massive scale.

The Petitioner is further seeking direction by the Officer of Maharashtra State government to not carry out contact tracing of asymptomatic contacts of a symptomatic case and further direction to the involved authorities to only test symptomatic people. For those with Covid symptoms, an RAT (Rapid Antigen Test) or RT-PCR test should be conducted, but the PCR cycle threshold should be reduced to 24 and no retest with a PCR should be done if someone is negative with the RAT test.

The Petitioner also seeks direction to all private bodies including societies, companies, schools, universities, banks etc. & all government officials/bodies to not mandatorily demand a negative test report from asymptomatic healthy people.    

 

Significance

this Writ Petition challenges the legality of pcr test without which the pandemic could end

 

Plaintiff’s Argument

  • Despite suggestions by experts and directions by the Central Government authorities, the State of Maharashtra is unnecessarily doing Covid-19 testing of asymptomatic & healthy people.
  • The orders passed by the State authorities are arbitrary, unlawful and based on bad faith and ulterior motives.
  • The policies of the State Authority are resulting in profits to private companies who are benefiting from the testing. This in itself represents an offense of misappropriation of public money and property punishable under Sec. 409, 52, 120(B), 34, 109 etc. of IPC.
  • The mandates by the state are unconstitutional, violating fundamental human rights of the citizen and therefore liable be quashed.

Expert Statements / Supporting Evidence

  • The plaintiff has provided a wealth of documentation supporting his argument comprising 85 articles, scientific and other reports, as well as relevant guidelines.

 

Defendant’s Argument

The hearing is yet to commence

 

Relevant Prior Judgements/ Cases

  • Honourable Supreme court in Noida Entrepreneurs Assn. vs. Nodia (2011) 6 SCC 508 has ruled that in such cases the investigation through CBI be ordered.
  • The corruption & frauds of state authorities is already exposed by Shri. Kirit Somaiya of BJP.

 

Decision

The Bombay High Court on Tuesday said the Maharashtra government’s orders of 2021 permitting only people fully vaccinated against COVID-19 to travel in local trains were “illegal” and brazenly affected the fundamental rights of citizens. A division bench of Chief Justice Dipankar Datta and Justice M S Karnik said the three orders signed by the government’s then chief secretary Sitaram Kunte were in clear diversion from the prescribed procedure under the Disaster Management Rules. [4]

“The orders passed by the former chief secretary were in clear diversion of the prescribed procedure. Due to the illegal orders, the fundamental rights of citizens were brazenly affected,” the HC said. [4]

On Tuesday, the government’s counsel, Anil Anturkar, informed the court that the three orders in question (issued on July 15, August 10 and August 11, 2021) stand withdrawn. [4]

“In spirit of the observations made by the high court, the three orders are withdrawn. The state executive committee would be holding a meeting on February 25 following which fresh directives would be issued,” Anturkar said. “We may withdraw the prohibition (on use of local trains by unvaccinated people or those who have taken one dose) or may impose it based on the present COVID-19 situation. At this stage, I cannot say anything further,” Anturkar said. [4]

The bench then pointed out that the number of people who tested positive for coronavirus in Mumbai on Monday (Feb 21, 2022) was at the lowest in 20 months. “We hope and trust that the state executive committee takes an appropriate decision on February 25, keeping in mind the declining trend of COVID-19 cases,” the HC said and posted the matter for further hearing on February 28. [4]

On Monday, Mumbai reported 96 new COVID-19 cases, the lowest single-day rise after April 17, 2020, as per the city civic body. [4]

The HC bench noted that Kunte’s orders breached the state disaster management rules and were issued in his individual capacity as chairperson of the state executive committee without there being any deliberation with the other members. [4]

“The chairperson has the powers to pass such orders only in emergency situations. But, we opine that none of the three orders rendered an emergent situation warranting the former chief secretary to pass such orders,” the high court said. The bench had on Monday asked the government if it was willing to withdraw the three circulars as they were not passed following proper procedure. [4]

 

Aftermath

  • Within two days of filing of this Petition, the Mumbai Municipal Corporation (local municipality) stopped testing at railway stations, beaches, markets and other crowded places. [1]
  • Also, ICMR (Indian Council of Medical Research) issued directions that the contacts of coronavirus patients are not required to undertake a Covid test. The close contacts will only require testing if they are identified as high-risk individuals based on their age or underlying health conditions.[2][3]

 


Further Research

Court Documents:
  • Read the Court Ruling
In the news:
  • …More information is needed…

 

Media



PCR Test Results Explained

source: shortXXvids



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Legal Opinion-Right to Resist

Legal Opinion-Right to Resist

Legal Opinion: Right to Resist

Re: the Right of Resistance to government rules when those rules are a danger to the people

 

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The Right to Resist Oppression in Comparative Constitutional Law

INTRODUCTION by Virginie de Araujo Recchia, Attorney at the Paris Bar


When the institutions of a State, whose primary purpose is to ensure the protection of public order, the safeguarding of fundamental principles, freedom and rights of the people, no longer stand in the way of the drift of totalitarian regimes, as it is the case today with some States around the world, it is the duty of every individual to resist oppression.

It is a sacred right, a right of democratic vigilance, the ultimate remedy against tyranny.

Here are some important observations concerning the right to resist oppression extracted and translated into English from the original French language article by Fragkou Roxani.

International Journal of Comparative Law. Vol. No. 654,2013.pp. 831-857;

http://www.persee.fr/doc/ridc_0035-3337_2013_num_65_4_20282


At the outset, this was research to better understand article 2 of the French Declaration of Human Rights of 1789, which says (in a very discreet way) that the people have a right to resist oppression (the Declaration of Human Rights of 1793 is often cited but it’s not part of the French Constitutional corpus).


This article also mentions the German Basic Law (Grundgesetz), the US Declaration of Independence of 1776 and also the Hellenic Constitutional system.

Selected extracts from: The Right to Resist Oppression in Comparative Constitutional Law


  • The German Basic Law, the US Declaration of Independence of 1776, the Hellenic Constitutional corpus and precisely the article 2 of the French Declaration of Human Rights of 1789 for example, clearly state that the people have a right to resist oppression.

It is however a principle of natural law proper to human nature that can be applied anywhere in the world.

The right to resist oppression was theorized for the first time by Ciceron (and Antigon myth p.835).

John Locke referred more than three centuries ago: “in the face of oppressive power, resistance is legitimate. Injustice of the sovereign releases the subject from the obedience that he normally owes him” (p.832).

  • The article 34 of the French Declaration of 1793 (even it’s not part of the Constitutional corpus, explains):

“There is oppression against the social body when only one of its members is oppressed. There is oppression against each member when the social body is oppressed”. Oppression exists, moreover, even when only one individual is a victim, because the whole social body is united by an “intimate and close solidarity” which creates in them the feeling of being all targeted, even when only one of them is in reality” (p.838).

“For proponents of the natural law thesis, resistance to oppression is a sacred right, emanating from man’s nature and existing beyond and independently of his “positivization”. As a natural right, the safeguarding of the Constitution is similar to the right of every individual to resist an oppressive and authoritarian regime. It is based on natural law, from which it derives its legitimacy. It belongs to the unwritten laws of human nature and logically pre-exists the state and its fundamental and supreme norm.” (p.841)

Indeed,” the right of resistance is a right whose holders are exclusively the citizens. For the constituents, the mission of vigilance towards the maintenance of the established order and the constitutional safeguard exceeds the narrow framework of the control carried out by the state bodies. It is thus attributed to all the citizens of the country, governors or governed, in their capacity as members of the community, of citizens”. (p.851)

According to the author of “Traité de Science Politique”, George Burdeau, “the engine of the resistance it is neither the crowd, nor the tribune, it is the individual who has the political taste and who judges; it is the citizen that does not fascinate “the hypnosis exerted by the Power”; the one that refuses to be dupe”. Because it is necessary that there is “at the beginning of the popular movement, a reaction of individual consciences”, otherwise “it will be a riot or a revolt, it will not be, in the full sense of the word, this refusal to accept any longer the arbitrariness of the rulers which characterizes the resistance to oppression

Resistance to oppression is not revolutionary. On the contrary, it is conservative in nature, its mission being to defend the established constitutional order and to contribute to the return of the to the status quo ante” (p.855).


 

Keywords

resistance to oppression, 1776, Antigon, article 34, Ciceron, constitution, de Araujo Recchia, Declaration of Independence, France, French Declaration of Human Rights 1793, German Basic Law, Grundgesetz, Hellenic Constitutional system, Legal Opinion, natural law, Right to Resist, sacred right, Virginie


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Vaccine Pass Case: Supreme Court

Vaccine Pass Case: Supreme Court

Vaccine Pass Case: Supreme Court

Re: the Legality of imposing “Passports” to legitimize health as a condition for entering restaurants, hotels, clubs & other hospitality venues

 

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Facts of the Case

  • Dates: Feb 2, 2022
  • Location: Czech Republic
  • Court: Supreme Court
  • Case #:
  • Plaintiff: woman from Brno
  • Plaintiff’s Lawyer:
  • Defendant: Health Ministry
  • Trial Type: Supreme Court
  • Judge: Chief Justice Peter Mikes
  • Status: Decided
  • Verdict: for the Plaintiff


*updated Feb 3, 2022

 

Background

The Supreme Court -Nejvyšší správní soud (NSS)- heard a lawsuit filed by a woman from Brno challenging the Covid Health Pass aka Digital Green Certificates. The provisions (established Dec 29, 2021) prohibit customers from entering food service establishments, music, dance, gambling and similar social clubs and discos, gambling halls and casinos, and from using short-term and vacation accommodation services unless they meet what the ministry calls “infection-free” conditions. These conditions are either completion of vaccination or having contracted covid-19 within the last 180 days. Only in exceptional circumstances is it possible to prove oneself by PCR test. [1]

This case comes at a time when several European countries are lifting Emergency restrictions, including the UK, Denmark, Bosnia.

Finland’s Prime Minister Sanna Marin has announced that the country will be lifting all Wuhan coronavirus restrictions by mid-February as the country starts easing some restrictions this week. [2] https://t.co/ACwJZuE0vl

 

Significance

This case is highly important as it challenges the very fundamentals of the Rights of the individual in a “free” society.

 

Plaintiff’s Argument

…More information is needed…

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

In Spain, [2]

the Basque High Court ruled against the introduction of the vaccine passport for certain venues in November, arguing the measure was unjustified.

Despite the ruling, the vaccine passport was later approved after the case was taken to the Spanish supreme court in December.

Just months prior in August, the Spanish Supreme Court ruled that Spain’s 2020 strict lockdown policies had been unconstitutional but claimed that businesses and people were not eligible to take the government to court to sue for monetary damages incurred during the lockdowns.

 

Decision

  • The Supreme Administrative Court (NSS) has dealt another heavy blow to the Health Ministry’s measures restricting the operation of restaurants or accommodation in the fight against the coronavirus pandemic. The court overturned an extraordinary measure, according to which people without completed vaccinations or after an illness were banned from entering catering establishments, clubs and short-term accommodation. [1]
  • The Supreme Administrative Court of the Czech Republic has ordered the abolition of vaccine passports for restaurants, hotels, and other venues, arguing that the measure is tantamount to vaccination coercion, and therefore not legal. [3]

  • The judges left the measure in place for one more week, after which it will cease to apply. [1]
  • Judge Mikeš ruled that the government’s pandemic laws do not allow for the specific regulation of restaurants, clubs and hotels and that measures would only be justified if the government could prove the entire country was at risk of the Wuhan coronavirus or if the government were to enact a state of emergency and use emergency powers to force venues to accept the vaccine passport. [2]

“The Supreme Administrative Court has already stated in the past that the Ministry of Health has no basis for restricting this type of establishment in the so-called Pandemic Act, unless it is technical measures, such as the use of disinfection or the placement of seating,” Mikeš stated. [2]

  • According to NSS Chief Justice Peter Mikes, the ministry had no support in the pandemic law for restricting services. [1]

“The ministry has no justification for restricting these types of establishments in the so-called pandemic law, unless they are technical measures, such as the use of disinfection or the placement of seating. The ministry could only restrict their activities under the Public Health Protection Act, but only against persons suspected of being infected,” Mikes explained, adding

that not everyone can be suspected of being infected without further ado. This would only be conceivable if the entire Czech Republic was designated as an outbreak.

 

The aim of the measure cannot be to indirectly force citizens to vaccinate

The state may not force people to vaccinate, referring to the ministry’s argumentation, which is voluntary. [1]

“However, the aim of the measure cannot be to indirectly force citizens to vaccinate. This would turn voluntary vaccination into compulsory vaccination by means of an emergency measure, since unvaccinated persons would have no choice but to be vaccinated if they wanted to live a normal life,” Mikeš stressed. [1]

  • Supreme Administrative Court Judge Petr Mikes described the measure banning unvaccinated people from going to restaurants as illegal. [1]
  • “The ministry has three options under the current legislation. [1]
  1. Either assess the situation to be so bad that everyone can be considered suspected of being infected,
  2. or appeal to the government to declare a state of emergency.
  3. And of course there is the option of leaving the area unregulated,” Mikes said.
  • The SAC erred when it did not address the objection to the recognition of antibodies, the Constitutional Court ruled [1]

“Under the current wording of the Pandemic Act, the Ministry of Health could only adopt a similar regulation if the conditions of the Public Health Protection Act were met. If these conditions are not met, then it is up to the government to decide whether it is able to manage the pandemic without such regulation or whether this is not the case, and if other conditions are met, this is grounds for declaring a state of emergency and adopting similar regulation through a government emergency measure,” Mikes added. [1]

 

Aftermath

Statement from Prime Minister Petr Fiala

The Czech Republic will stop requiring COVID passes for entry to restaurants and other service or entertainment venues starting next week, opening them up to unvaccinated people, Prime Minister Petr Fiala said. [3]

As Novinky.cz reports, the change will take effect on February 9, following a decision by Czech cabinet ministers on Wednesday evening. [3]

“Taking into account current developments, the government will abolish the obligation to prove with a certificate of vaccination or negative test when entering restaurants, services, cultural and sports events on February 9,” said Prime Minister Petr Fiala (ODS).

According to Fiala, the obligation to wear respirators indoors will remain in force. “According to experts, it proves to be highly effective and at the same time minimally restrictive,” he said.

The limit on the number of participants in mass events will also continue to apply, added Fiala. [3]

  • Measures requiring mask wearing indoors and limits to the number of people at public events will remain. [3]
  • Those who have not suffered from covid-19 or are not vaccinated will also be able to enter restaurants and hotels. [3]
  • Compulsory wide-ranging coronavirus testing at work and in schools will also end on February 18. [3]

 

Statement from Health Minister Vlastimil Válek 

Health Minister Vlastimil Válek (TOP 09) first planned to comment on the verdict at a government press conference. However, he commented on the verdict at the plenary session of the lower house, which is dealing with an amendment to the pandemic law, saying that this is why the norm needs to be adopted. The SPD MPs are complicating its discussion by obstructing it. [1]

The minister supports amendments to the controversial pandemic law, which entail a wider range of COVID-19 restrictions, including the introduction of mandatory testing of entrepreneurs, students, and teachers, as well as a separate set of measures by the defence and interior ministries.

If the amendment to the pandemic law were already in force, the current situation would not have arisen, according to Válek. “This measure would be unassailable,” Válek told the plenary. [1]

Válek told Novosti on Saturday that entry to restaurants for the unvaccinated is under discussion in the Czech Republic. [1]

Despite Válek’s support for more pandemic laws, he also stated

“I believe that in March we will be able to cancel all [coronavirus] measures to the maximum. The current development of the epidemic and the forecast for the near future prove that [it is possible],” Valek said at a meeting with lawmakers. [4]

  •  

The Supreme Court has other actions on the table against existing measures, and it is possible that it will overturn them on similar grounds. [1]

 


Further Research

Court Documents:
  • Read the Court Ruling
In the news:
  • …More information is needed…

related:

 

Media


……

source: ….


….

source: ….


….

source: ….

 

References

  1. Konec. Soud pustil neočkované do restaurací
  2. Czech Court Abolishes Vaccine Passports For Restaurants and Hotels
  3. BREAKING: Czech Government to End COVID passes as of February 9
  4. Czech Health Minister Expects All COVID Measures to Be Lifted in March

 

Keyword

antibodies, Chief Justice Peter Mikes, constitution, Constitutional Court, Covid Health Pass, Czech, Czech Republic, Digital Green Certificates, Health Minister, Ministry of Health, Nejvyšší správní soud, NSS, Pandemic Act, Public Health Protection Act, Supreme Court, TOP 09, Unconstitutional, Vaccine, Válek, Vlastimil


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