The role of the law in the fight against Covid-19

When Covid-19 began to spread from China to 20 other countries, following the recommendation of the emergency committee, the World Health Organization (WHO) director-general, on Jan 30, 2020, declared that the outbreak constituted a public health emergency of international concern (PHEIC).

Serious public health events that endanger international public health may be determined as a PHEIC under the International Health Regulations (IHR) 2005. The term is defined there as “an extraordinary event which is determined to constitute a public health risk to other states through the international spread of disease; and to potentially require a coordinated international response”.

The IHR grew out of the response to deadly epidemics that overran Europe, accelerated by the SARS outbreak of 2003.

The IHR is now a key international legal instrument that regulates the “international spread of disease”. It binds 196 states, including all member states of WHO – Malaysia included. Malaysia has been a signatory to the IHR since 2007.

Member states, including Malaysia, have reacted in a variety of ways to the WHO recommendations pursuant to the PHEIC. Some states have been stringent while other states have fallen short of WHO’s recommendations.

While Article 1 of the IHR does state that WHO’s recommendations are not binding and Article 3(4) reaffirms that member state parties have “the sovereign right to legislate and to implement legislation in pursuance of their health policies”, that sovereign right is not unlimited. Article 3(4) itself makes clear that member states must exercise it “in accordance with the charter of the United Nations and the principles of international law” and that, in doing so, “they should uphold the purpose” of the IHR.

Several countries have invoked emergency powers. However, many of these countries employ what has been identified as the “legislative model” whereby emergencies are handled through ordinary legislation – not the constitution – delegating “special and temporary powers to the executive” (see John Ferejohn and Pasquale Pasquino “The law of the exception: A typology of emergency powers” [2004] 2 IJCL 210).

It allows close legislative supervision of the exercise of powers by the executive and sets a timely ending to those powers.

The approach can be seen in common law jurisdictions or countries.

Take the example of Australia, in particular the state of Victoria which was the first state to record a Covid-19 case on Jan 25: a passenger who travelled from Guangdong, China, to Melbourne on Jan 19.

This set off a chain reaction as Australia’s federal, state and territory governments implemented emergency plans to combat the spread of the virus. Travel restrictions were imposed and national coordination arrangements implemented.

On March 16, Victoria declared a “state of emergency” under the state Public Health and Wellbeing Act 2008. Two days later on March 18 – the same day the movement control order (MCO) in Malaysia was first imposed – Australia’s governor-general declared a “human biosecurity emergency” across Australia under the federal Biosecurity Act 2015. The act provides for managing, among others, biosecurity risks, biosecurity emergencies and human biosecurity emergencies.

These declarations conferred extraordinary powers on the state chief health officer and the federal health minister respectively to issue directions that successively locked down Victoria and Australia’s society and economy to minimise the rate of infection.

The pandemic therefore marked the first time that the emergency powers were activated under the two legislation – one a state law and the other a federal law.

On Aug 2, a “state of disaster” was also declared in Victoria under the Emergency Management Act 1986 – another state law – which gives the police greater power to enforce public health directions.

The Australian constitution does not provide the federal government with general emergency powers like Article 150(1) of the Federal Constitution. Rather, special “emergency powers” are provided for in ordinary and typically state-level legislation that defines the conditions under which specific kinds of emergencies may be declared.

The legislation comes with built-in safeguards. Victoria’ Public Health and Wellbeing Act 2008, for example, provides safeguards against the powers impinging upon individual liberties, including that:

– infectious disease management be governed by principles respecting personal rights;

– measures which least restrict the rights of a person should be chosen; and

– public health orders are subject to appeal, requiring a review by the chief health officer within seven days.

The act was also assessed as compatible with the state’s Charter of Human Rights and Responsibilities.

Importantly also, the act provides that the longest state of emergency enforceable is four weeks, which may be extended for a period of up to six months only.

Take another example, briefly, of New Zealand which responded to the SARS outbreak in 2003 with its own Epidemic Preparedness Act 2006 to ensure adequate statutory powers for its government agencies (a) to try to prevent the outbreak of epidemics in New Zealand; (b) to respond to epidemics in New Zealand; and (c) to respond to certain possible consequences of epidemics (whether occurring in New Zealand or overseas).

The act requires the prime minister to issue an epidemic notice in the New Zealand gazette. To do so, the prime minister must be satisfied, on the advice of the director-general of health, that the effects of the Covid-19 outbreak are “likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand”. The act has been further enforced by the Covid-19 Response (Further Management Measures) Legislation Act 2020. The latter amends or modifies the application of a number of existing legislation to assist New Zealand to respond to the Covid-19 outbreak.

Prior to that, the Covid-19 Public Health Response Act 2020 was passed to support the public health response to the pandemic. Both Australia and New Zealand, thus, have an armoury of legislation to fight the pandemic.

The above shows how legislation or the law has come to be utilised and enforced to combat the pandemic to great effect.

It is no coincidence that both are considered among the countries which have successfully contained the spread of the disease. Similarly, Malaysia has to utilise its state of emergency to promulgate emergency ordinance(s) to combat the pandemic.

Let’s realise the role of law to its full effect and flatten the curve, to say the least.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.