A pandemic is an exceptional situation and the Covid-19 one has had unparalleled effects both on populations and economies. Whereas an updating of the provisions of our old Quarantine Act is entirely justified, one should resist temptations to go overboard in a legislation that would be on our statute books for a while and apply to all types of epidemic outbreaks. Concerns have indeed been raised about the proposed Quarantine Bill 2020.
Are there merits to those concerns? Does the Bill (or Act if it has been pushed through) stand up to tests of reasonableness? Are the measures intended and sufficient for ordinary Quarantine purposes which, for instance, might be justified for controlling dengue proliferation? Are extraordinary powers being granted to enforcement authorities under any future (or current) sanitary conditions requiring country lockdown? In that case, are there sufficient controls, checks and balances that would prevent abuse by authorities or by zealous officers going beyond their purview, particularly when courts may not be functioning normally and normal legal protections may take long weeks after an arrest?
These are indeed some of the many questions our MPs have to decide upon.
Independently of the debates in the National Assembly, many concerned citizens have held strongly worded opinions on the provisions of the Bill. The text confers to the Minister of Health the power to issue a Quarantine Order without mention of any WHO advisory or other specialist advice in his sole judgment that an “epidemic” condition is taking place or is “likely” without specifying the time-frame, the severity or the communicability of such a dramatic event occurring. Curiously, while the Bill adequately and fully defines most terms and functions, the single most important definition that is missing is precisely what constitutes an “epidemic” or, worse, a “likely epidemic” of a communicable disease.
Epidemiologists, medical specialists or even the WHO may hold different views on what precisely constitutes an epidemic. For instance, to epidemiologists an “epidemic refers to an increase, often sudden, in the number of cases of a disease above what is normally expected in that population in that area”. Although they do distinguish an epidemic from allied terms as endemic, clusters, sporadic, outbreaks or pandemics, such a broad definition is extremely vague: even a school compound or a specific zone or district could be concerned.
The WHO has its own classification levels which have been the subject of some controversies due to alleged political bias. We consider that legal specialists, our MPs and the population at large need somewhat firm descriptors of what constitutes an “epidemic”.
That the proposed Quarantine order need not be subject to any National Assembly vetting nor based on any scientific or medical report, nor substantiated by any WHO-advisory notice, sounds like a lot of leeway. The Quarantine Order entails such immense consequential effects on civil society and natural freedoms that it should not be absolute and discretionary.
Assuming that there are substantiated reasons for a Quarantine Order and that it has been subject to prior scrutiny by our legislators, such an exceptional measure should be clearly time-barred for, say three months, with the proviso that a renewal can be applied for under the same solid vetting mechanisms and variations that legislators are apt to decide upon.
Sections 5 treats the designation of quarantine facilities, but Section 6.1 seems rather ambiguously worded: “The Quarantine Authority may designate a medical practitioner to be a Quarantine Officer”, not making certain that only Medical Practitioners are so designated. Sections 7 and 8 then go in some detail about the operation of quarantine facilities (QFs) and the confinement and exit of infected persons to such premises or, on request, to private health institutions or self-isolation.
Confinement to a quarantine facility is and has been demonstrably an extremely stressful period for any citizen and the extent of leeway granted to a Quarantine Officer (QO) seems odd to us laymen: “a person […] who may have have been in contact with a person who […] may have a communicable disease”. No reference is made to any scientific or medical tests required to substantiate those presumptions.
Section 9 deals with the duty for inmates to provide the QO with relevant information, failure to do so being an offence. This leaves out the duties of the QO to provide inmates with any assistance or relevant timely medical information about his/her condition, about his daily necessities including food, specialized health supplies, adequate fresh air or exercises, his protection from infected inmates or even about his/her rights as a citizen under curfew locked inside a government administered QF.
Section 10 attempts to deal with duties of any member of the population at large to inform QOs “forthwith” when he “suspects” that he “may” have been in contact with a person who “may” have a communicable disease, failure to doing so being again an offence.
Section 11 will require more intense scrutiny for although para (a) says that the Police Officer “shall provide such assistance as may be reasonably required by a Quarantine Officer under this Act”, as laymen we are not confident that para (b, i, ii & iii) offer any checks and balances to their authority, in particular, the power to “enter premises without a warrant” or worse, “arrest, without a warrant, a person whom he has reasonable cause to believe” has committed an offence under this Act.
Section 12 details and expands the variety of offences mentioned previously at Sections 9-11, and adds “otherwise contravenes this Act or any regulations, Order or Notice under this Act” to make good measure. Lawyers will recognize whether the severity of the penalties (up to Rs 500,000 and 5 years imprisonment) means harassing retention in police custody and stressful or delayed application for what could be a hefty bail. Recent allegations of ordinary people being reportedly abused under police or prison vigilance, and the absence of any reference to Court, legal assistance and judiciary oversight of confinement orders and conditions, have intensified controversies.
The special circumstances surrounding the Covid-19 pandemic and the constraining measures that have been required in most countries to tackle its spread are ample reasons to review our existing Quarantine legislation and confer greater effectiveness to authorities. However the right balance must be struck between the exigencies of temporary emergencies in the face of international sanitary onslaughts and the severe curtailment of civil society’s rights and freedoms through discretionary and arbitrary powers granted to Authorities to handle any epidemic or likely future epidemic.
We trust our legislators and legal or constitutional minds will bring their collective wisdom to bear on such critical issues embodied in the proposed Quarantine Bill.