Male, the capital of Maldives, is in lockdown since 15 April 2020. With over a month and half into the confinement, it is evident that people are getting agitated by being restricted to their homes – unable to move around, meet family and friends, go to work, and earn an income.
As the ill effects of the lockdown cascade into lives and livelihoods, several arguments are being raised to fuel the growing lobby against the lockdown. Apart from the dichotomy of opinion that exists amongst ordinary folks enduring the limitation imposed on them, public health experts, medical professionals, economists, politicians, private industry actors and other influencers are all contributing to the debate and division: whether the lockdown is the most effective tool to fight Covid-19, and even if it is, can it be sustained at the cost of economy and livelihoods, and above all, is it even legal?
At the epicenter of this debate are three actors: The target piece of legislation is the Public Health Protection Act (Act). The target person is the director general of public health (DG Public Health). The target institution is the Health Protection Agency (HPA) – which are both creatures of the Act.
The Act is evidently clear that the DG Public Health is the statutory authority responsible for the protection of public health in the Maldives. She is empowered to take steps necessary to prevent contain and minimize risk to public health. That is the message in section 8 of the Act.
If the DG Public Health is of the view that an act event or circumstance has occurred that could be prejudicial to public health, she could advise the minister of health to declare a public health emergency. Her view must be based on credible grounds. The goal of the emergency would be to prevent, contain, control or minimize risk of the prejudicial act or event. This power is evident from section 33 of the Act.
Following the advice of the DG Public Health, the minister is under an obligation to declare a public health emergency. It can be confined to a specific place or time.
Once the minister has made the declaration, the DG Public Health is enabled to institute and implement a catalogue of measures under section 34 of the Act.
Section 42 defines an act prejudicial to public health to include an act event or circumstance detrimental to life, health and body of people.
Once an act prejudicial to public health occurs, the DG Public Health has the power to institute implement or direct measures to contain and control that act.
The Act provides her with authority to enforce compliance through court action by invoking section 43 of the Act.
The public health emergency currently in force in the Maldives was declared on 12 March 2020 shortly after the country sighted its first import of Covid-19.
Emergency under the Constitution
The public health emergency declared under the Act may not be confused with the state of emergency that may be declared under article 253 of the constitution. While the power to declare a public health emergency is given to a cabinet minister responsible for health, the latter falls with the exclusive constitutional prerogative of the president.
When faced with an event of a natural disaster, dangerous disease or an event detrimental to national security, the president may invoke article 253 and declare a state of emergency. It may be specific to a specific locality territory or it may even apply countrywide. Once declared, a state of emergency can run for a maximum of 30 days and can be extended.
During a state of emergency, the president is specifically empowered by the constitution to restrict certain fundamental rights and suspend certain laws to the extent necessary to achieve the objects of the declaration.
The Role of Parliament
The public health emergency does not have any specific role prescribed for the parliament – that is to say that there is no specific legal requirement for parliamentary approval to ensure its validity or continuance.
However, the parliament in carrying out its oversight functions is not prevented from holding the minister of health and DG Public Health to account and subject their actions to parliamentary scrutiny.
Quite in contrast, and rightfully so, given the wide variety of powers given to the president in a state of emergency, the president is required to notify parliament within 48 hours of the declaration. The parliament may endorse, amend or repeal the declaration.
A state of emergency declared by the president is time bound in nature and can run for a period of 30 days. Unless extended by parliament, or revoked earlier by the president himself, it cannot sustain beyond 30 days.
If the state of emergency is to be extended, the president is required to seek parliamentary approval for each act of extension.
It is expressly provided in the constitution that certain fundamental rights may be curtailed and laws suspended by the president if he declares a state of emergency under the constitution. Therefore, there is little argument over the extent of presidential authority in a state of emergency in its relation to curbs on fundamental freedoms.
However, the issue of interference with fundamental freedoms is not comprehensively dealt with in the Act. There is no debate that when directives are issued against free movement, assemblies, congregations, and to simply stay home and keep commercial enterprises closed, these directives are bound to collide with fundamental rights guaranteed under the constitution.
While appreciating the fact that a law cannot override the constitution, the Act in defining the powers of the DG Public Health has not provided for the relationship with fundamental liberties and how they may be reconciled.
According to article 16 of the constitution, all Chapter 2 rights can clearly be restricted. The test is that the restriction can only be brought by a law passed by parliament; and the limitation would have to be comparable to standards of practice in established and open democracies.
On a review of directives issued by the DG Public Health against the limbs of that test, we can find the following:
Firstly, the Public Health Protection Act is a statute, an Act of Parliament. That is to say that it is not a regulation, rule, guideline or directive of a cabinet minister or public official.
Secondly, it is established practice in open and democratic societies to restrict fundamental freedoms in like manner, as part of the strategy to combat Covid-19. Almost the entire world including the best, the oldest and the largest of democracies have put in place comparable measures.
A clinical examination of the above provisions in a collective manner helps us arrive at the conclusion that the DG Public Health, a statutory authority, is vested with adequate legal authority prescribed by law to institute measures necessary to combat the spread of Covid-19 in the Maldives. Additionally, there is no argument that her directives are equally clothed with constitutional and legal validity even if they may collide with fundamental liberties so long as they relate to the protection of public health.
Photo: Courtesy of Mihaaru