COVID-19, the law and the executive

Author Name: Omer Aamir      02 Apr 2020     Society

Emergency situations unlock formidable executive powers. For example, in California the governor reserves the right ‘to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police powers vested in the state by the Constitution and laws of the state of California.’

Public health authorities make mistakes, and politicians abuse their powers; there is a history of discriminatory use of the quarantine power against particular groups of people based on race, national origin and gender. For example, in Bishkek, Kyrgyzstan, the mayor used the emergency powers granted due to the pandemic in order to stifle political and social activism. An International Women’s day march was the target of the ban.

However, it is also the governments’ obligation to undertake effective action to protect the public from epidemics, endemics, pandemics and other public health crises. In the absence of effective therapy or a vaccine, health authorities' ability to control infectious disease necessarily depends upon preventing transmission by appropriately restricting the movement of exposed or infected people. At the same time, governments have an obligation to comply with international law, even when emergencies arise. Moreover, international law calls for emergency measures to be taken to prevent the widespread spread of such a contagious virus.

The spread of a threat to public health such as the COVID-19 may seem to warrant dispensing with human rights protections and democratic norms in the name of exigency. History has shown that this is a mistake, and governments must move expeditiously while also protecting human rights. An example was that of the SARS outbreak wherein, due to the atypical cases (those showing no symptoms or contact history with infected patients, yet acting as ‘sleeping carriers’), the state choose to employ aggressive, legally based quarantine measures. This did not prevent the spread of the virus, however it increased citizens’ resentment towards the state.

Moving towards the International law aspect, violations of international law could arise if, for example, a government restricted access to health services based on the religion or ethnicity of the patient. In a similar fashion, International law prohibits governments from forcing marginalized communities to assume discriminatory burdens after an outbreak.

Moreover, courts and justice have been critically effected after the outbreak of coronavirus. Due to lockdowns in the countries, the system of justice is delayed. The Lahore Court, its benches around the country and its subordinate courts have been closed till the 7th of April. Chief Justice of Islamabad High Court has ordered the release of prisoners, even for some falling within the prohibitory crimes list.

The legal conduct is not operating business as usual around the world as well. This highlights the risk to service of justice when the International law firm Baker McKenzie closed its London offices. In Mali, a cluster of law firms closed their offices. The virus has disrupted international arbitration practices across Japan, China, South Korea and a number of states in Asia, Europe and now US as well.

Besides effecting the legal situation, the virus has also curtailed movement of people, however not the movement of goods. Undoubtedly, the virus has shaken up the global supply and demand chain. However, as long as global commerce continues there will be demand of international arbitration. Therefore, International arbitral tribunals need to continue functioning. Otherwise, there will be a complete shut off from the hard fought arcane International structures that have come into place to regulate International trade and commerce. Taking political stock of the situation, unnecessary accusations are being hurled that Chinese products are carriers of the virus. Such uncalled for statements, will only result in hurting the global economy, which is already in a downturn due to the virus and oil wars. Political point scoring in the time of the pandemic is an extremely dangerous ball game. Even though US elections are nearing in by the end of this year, however, hurling accusations and calling it ‘China Virus’ will only serve to negatively affect the global trade and economy. This will not be beneficial to Mr. Trump’s campaign if he intends to get re-elected as a downturn in Global economy will no doubt effect jobs in United States. Moreover, according to reports emerging, Mr.Trump axed the position of American disease expert, in China’s disease control agency. If she had been there, authorities could have been alerted regarding the outbreak much earlier.

As of writing this article, there are more than 550,000 confirmed cases of corona virus and rising. This figure is likely to further go up in the coming days if measures to flatten the curve such as self-isolation and quarantine are not taken. Presently, more than 25,000 people have died of the virus. The deaths are particularly amongst the elderly. A Georgetown law study on the SARS outbreak outlined that effective isolation and quarantine becomes more difficult as cases accumulate, so public health authorities may more aggressively apply quarantine and isolation for a disease like SARS. If this situation is taken and extrapolated to the COVID-19 one, it is undoubtedly true that governments around the world will more aggressively enforce quarantine to prevent unrestricted movement in order to prevent the deaths of those vulnerable to the disease. This will be particularly true in the case of preventing the above mentioned ‘sleeper carriers’ from transmitting the disease. Enforcing lockdown is already becoming a headache for the authorities in Italy.

The SARS examples shows that nationally effective health care and public health systems are crucial to effective disease control in modern societies. They can only become more important if health authorities turn to personal control measures. Adequate preparation for widespread outbreaks of dangerous, communicable diseases necessarily is built on a foundation of accessible health care and competent, properly funded public health agencies regardless of the approach used.

Wherever needed, laws should be enacted in order to ensure quarantine. An example of this was in Singapore during the SARS epidemic, wherein the Infectious diseases Act was enacted to put into involuntary confinement a man, who was diagnosed with the disease but was not complying with the authorities to go into self-isolation. In China, the state secret law prohibited local officials from publicizing an outbreak in advance of the Ministry of Health in Beijing. Considerable delay occurred in drafting and passing of China’s SARS control legislation. These two diametrically opposite cases show the need to enact proper legislation to prevent the spread of the pandemic.

Communities’ en-masse have been involuntarily locked down already. The case of Jammu and Kashmir is a classic example. There have been large scale arrests and a complete curfew is in place in the occupied valley since August 5th. Moreover, basic medicine and supplies to the valleys are curtailed. The Kashmir valley presents a bleak picture where curtailment of civil liberties and a complete violation of the ICCPR (International Covenant on Civil and Political Rights) are every day excesses. It shows the inability of the International community to voice a strong response to the violations taking place there. The international community and the rest of India will only now realize the pain of the Kashmiris, when COVID-19 forces entire nation-states to shut down. Pakistan’s de facto minister of health, Dr.Zafar Mirza, in the virtual huddle of the leaders of the South Asian Association for Regional Cooperation (SAARC) highlighted the Kashmir issue. He prayed for easing of restriction so proper healthcare can be provided to those infected.

Corona virus has just brought to light what were established exigencies happening in the valley. More critically, there is also an increasing pressure on the Indian authorities (from across the globe) to provide medical relief to the inhabitants of the valley at this critical juncture.

Developing states such as Pakistan, already face an uphill battle when it comes to checking the power of unelected institutions. In times of the pandemic, it is necessary that there remains an arrangement to prevent these institutions from acquiring unnecessary power. However, that being said, times like these call for special measures to be undertaken. In this regard, if the institutions do impose a forced quarantine or lockdown, it should be taken with a pinch of salt to be for the greater good. How long this quarantine is going to last is anybody’s guess though. Patience is the key in these circumstances. Laws need to be enacted to give emergency powers to the armed forces in order to ensure that state machinery keeps functioning in such times and anarchy is not created in the society. A particular glaring reality is that the sole medical regulatory authority of the country, i.e. Pakistan Medical and Dental Council (PMDC) stands dissolved at this critical juncture. This is unprecedented anywhere in the world. Moreover, the epidemic diseases act of 1958, of Punjab hasn’t been revised to cater to modern needs. This is glaringly visible in the fact that it nowhere mentions the curb in air travel in times of this epidemic. Airline travel has proven to be one of the most viral modes of transmission of this pandemic. A reform in law is needed to deal with this emergency. Developed countries such as United States already have laws such as the Stafford Act to deal with such emergencies. Moreover, in 2014, a Presidential Order was passed in US to tackle severe acute respiratory syndromes that have the potential to cause a pandemic. Corona falls under this category.

Nonetheless, the lessons learnt from the outbreak of this pandemic and the future that it holds for will bring to light horrid hidden truths. Firstly, the pandemic has shown the ugly face of unscrupulous hoarders and how they have overtaken the considerations of human ethics, in order to make a quick profit. A family in Canada brought over $100,000 worth of hand sanitizers and toilet rolls in order to later sell them for an exorbitant price on Amazon, when the local stores ran out of them.

Secondly, it has also brought to light-the vulnerability of humans as a race, the interconnectivity of the globe and most importantly the realization that there are still forces that have no idea of political and geographical boundaries, no respect for human norms and cultures and are indiscriminate in their lethality regardless of religion, gender, national origin, race or ethnicity. Even though the Chinese authorities worked commendably to prevent the spread of the disease beyond Hubei, however, it was only time when such an easily transmissible virus would spread around the globe.

It is a time of expedient measures to combat this virus and prevent it from acquiring more victims. A vaccine needs to be developed and proper measures taken to ensure that its distribution becomes global at a minimum cost to those in need. Lastly, in all the mayhem that is being caused by the virus, it is imperative that Human Rights law does not fall victim to it, as it so often becomes the first casualty in times like these. An example of this was the forced internment of Japanese-Americans during World War 2. Already, recent weeks have seen the largest expansion of state power since World War 2. For believers in limited government and open markets, this poses a problem. History suggests that states do not easily give up powers they have accumulated. This poses a problem for the economy as well as surveillance of individuals in current era.

On a concluding note, it is to be said that the Corona outbreak shows that Pakistan’s connectivity (particularly business and economic related) with the world remains relatively low. Cases started emerging in Pakistan a good three months after the outbreak. They had already spread rapidly around the world due to the interconnected nature of the globe. On the other hand, our only connection remained a religious one, and cases started emerging on a large scale only after Zaireen started flooding back after the annual rituals. This shows that Pakistan as a whole is a rather isolated country and although that is in most situations a bad occurrence, however, with regards to this current situation, it could have been a good one, had our government been proactive and taken necessary precautions.

They could have anticipated the spread of virus and acted accordingly. Rather the entry of this pandemic into the country has started and it might spread unfettered. Nevertheless, the government can still take measures to prevent its spread and in this regard an aggressive strategy needs to be devised to monitor those who are potential carriers. This will save many precious lives, particularly of the old, of infants and those with a weak immune system. Moreover, curtailment of congregations and people in public areas needs to be a priority. Lockdown is not an option for a developing country like ours, however measures need to be in place to increase social distancing, self-isolation and a government imposed quarantine.

 

Omer Aamir is a Researcher at Center for Aerospace and Security Studies (CASS). He has done B.A LL.B (Hons) from Lahore University of Management Sciences. He intends to further his studies in International Law. This article was first published in the regionaltimes. He can be reached at cass.thinkers@gmail.com

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