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A Comparative Understanding of “Lockdown” Frameworks in the Time of the Coronavirus Pandemic
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A Comparative Understanding of “Lockdown” Frameworks in the Time of the Coronavirus Pandemic

As COVID-19 spreads in different parts of the world, many countries have resorted to “national quarantine” or lockdown. Travel bans and closure of activities has resulted in a complete halt of society. Different countries are using their own set of domestic laws for planning action against the spread of Coronavirus. After declaring it a “pandemic”, the WHO called for countries to take measures in such a way that they “strike a fine balance between protecting health, minimizing disruption and respecting human rights.” India, along with several countries has announced a nationwide lockdown to address public health concerns. One may argue that such lockdowns enjoy universal support as these are in the interest of the general public, but it must be ensured that the adopted measures fulfill some basic tenets of human existence, dignity, and capabilities — similar to what philosophers Amartya Sen and Martha Nussbaum have propounded in their “capability” approach theory. It is thus imperative to go through the framework in which they are exercised.

Legal Framework of National Quarantine in Different Countries

Governments around the globe are relying on different kinds of laws rooted in either public health laws, police powers or specific legislation for quarantine. In contrast to the public health definition, mass quarantine is a legal term which can be loosely described as “civil confinement.” Large scale quarantines have been rarely used except in massive outbreaks of disease like Spanish Flu in 1917 and Ebola in 2014. When the Government of India announced nationwide lockdown for 21 days, it resorted to two pieces of legislation, namely, the Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA). The EDA Act is meant to be invoked by the Central Government when it is satisfied that the ordinary laws are ineffective for dealing with such a situation, arising out of an outbreak of a dangerous epidemic disease. While the Disaster Management Act takes effect on announcement by the government based on what the government constitutes a ‘disaster’– its legal framework has been said to be not very constitutionally sound as it is an implementation of pure executive actions only.

The framework & modus operandi of the lockdowns amid this pandemic are much different in other countries. Like, for instance, historically, Britain had its Quarantine Act of 1723 which was repealed later when it was held to be arbitrary. Now, the UK has invoked Public Health (Control of Disease) Act 1984 for “mass quarantine.” The recent lockdown is backed by regulations issued under S. 13 of the said act– underpinned with unlimited fines – in case of breach by persons and notified business concerns.

Spain, which is facing a worse scenario than most others, imposed a similar lockdown restricting movement of persons except for necessary purposes. It was promulgated under Royal decree 463/2020 laying down several broad measures — including restrictions on the right to worship, commercial activity and other recreational activities. Other European countries such as Italy and Romania have complete lockdown under legal decree and military ordinance respectively.

Canada used its quarantine act 2005 for the current lockdown. This law was modified after the SARS outbreak of 2003, when some issues arose regarding its application on maritime & air travel. Section 6 of this act provides for the establishment of a Quarantine Station at any place of Canada and Section 7 prescribes conditions for Quarantine facilities. Section 12 and Section 13 of this act puts an obligation on the arriving and departing travelers to appear before a screening officer. Section 14 determines the situation when screening technology can be used. Commenting on its application, Steven Hoffman, professor of global health & law at York University, remarked that “Canada must apply this act in accordance with the Canadian Charter of Rights and Freedom.” In Australia, the current restrictions derive their authority under the new Biosecurity Act, 2015.

In the USA, mass quarantine is enacted by federal laws, notably, by the Immigration & Nationality Act (INA) and Public Health Service Act (PHSA). Its section 212(f) has been used for the first time to suspend the entry of all “foreign nationals…whom the president thinks…detrimental to the interests of the United States.” Authority for these quarantine rules comes from section 361 of the PHSA, which authorizes the U.S. Department of Health and Human Services (HHS) to issue “necessary regulations to prevent the introduction, transmission, or spread of communicable diseases from foreign countries.” In the US, apart from these federal laws, states can use their respective state powers to curb the spread of disease. This varies from the public health orders which can also be issued by them.

Some Constitutional Concerns about Lockdowns

Sometimes, mass quarantines are seen as an intrusion on the liberty of moving freely and get questioned on other such constitutional grounds. The action of the state in such cases has been tested on the touchstone of constitutional liberty so that such policies reflect a fine balance between public health & civil liberties. Governmental actions often face challenges on violation of the due process protection. The United States has witnessed several challenges to it in the past. The landmark case dealing with the challenge to quarantine law occurred in 1900, when a Louisiana state law forcing people to undergo quarantine was held constitutional. In this case, the constitutional challenge to the quarantines imposed for public health were somewhat, centered around the involuntary commitment of people appearing in violation of substantive due process precedents. In the case of County of Sacramento v. Lewis, it was argued that such measures of quarantine don’t take into account the fairness of the implementation procedure. The primary contention revolved around the question of whether the administration had adequate justification for depriving people of their rights. The Court in this case held the Quarantine law to be constitutional. The reasoning can be understood by the decision of the U.S. Supreme Court in Jacobson v. Massachusetts, wherein the honorable Court stated “[a]lthough this court has refrained from any attempt to define the limits of [the state’s police] power,…it has distinctly recognized the authority of a State to enact quarantine laws and health laws of every description.” Usually, such challenges are unlikely to succeed due to the high degree of public health risk associated with it. In case of the United States ex rel. Siegel v. Shinnick , the United States District Court, E.D. New York was reluctant to accept that such measures stand in violation of substantive due process.

There may be challenges to procedural due process requirements that specific deprivation by the government is acceptable to satisfy the need for restraint on liberty. However, due to the nature of the outbreak– it will be tough to meet the requirements. On the impracticality of providing any pre-deprivation process, the US Supreme Court has held that it may mean that post-deprivation remedy is constitutionally adequate. Such conditions were applied during the 2014 Ebola outbreak when quarantine was challenged. Then a federal court had justified the quarantines as being “necessarily prophylactic and peremptory.” There is also the concept of “qualified immunity” to a state’s action in such times, unless it clearly contravenes the established constitutional rights. Apart from constitutional challenges, once this ends, a legal battle over workers’ rights to job protection & salary, safety etc. which were affected by quarantine will soon occur in many Courts.

In India and in other countries as well, a question may also arise on the proportionality factor in the quarantine policy. As basic protection during quarantine does exist, officials are required to use the least restrictive method for enforcing the laws. Though individual rights give way before greater good, constitutional structure tolerates such substantial restriction for a limited period only. Recently, the Constitutional Court of South Africa had dismissed a plea against the lockdown on the ground that there were no “reasonable prospects of success.” However, it must be noted that the South African government has appointed former Constitutional Court judge, Justice Catherine (Kate) O’Regan, as the COVID-19 Designate Judge to safeguard individuals’ privacy and personal information in these critical times. It was acknowledged by the government while making this appointment that, “Whilst Government does all it can to implement measures to fight the spread of COVID19, the Designated Judge has an important role to play to safeguard the privacy and personal information of persons during this process.”

Regardless of the framework, scholars have advanced a constitutional standard based on decisions of the U.S. Supreme Court, for mass quarantine which were made in the aftermath of Ebola. A lockdown has to satisfy at least three key requirements. First, there must be an individualized risk assessment based on scientific evidence so that deprivation of his/her liberty can be justified. Second, the least restrictive means for advancing the state’s interests must be employed. Third, the state should provide hearing rights to individuals subject to quarantine procedural due process rights.

In a recent instance, the Constitutional Court of Kosovo (a country in Southeast Europe) has declared the restrictions imposed by the government on the movement of people as unconstitutional, because of a lack of legal backing around the decision. According to the court,

“The Government cannot restrict any fundamental right and freedom through decisions unless a restriction of the relevant right is provided by the law of the Assembly. The Government can only enforce a law of the Assembly that restricts a fundamental right and freedom only to the specific extent authorized by the Assembly through the relevant law.”

However, the Court set the date of entry into force of its Judgment as 13 April, 2020 and remarked that the relevant institutions and the Assembly should take appropriate measures to ensure that limitations on the fundamental right and freedom have been made keeping in view the health of public, according to the constitution of the Republic of Kosovo.

Conclusion

These nation-wide lockdowns can enjoy universal support but their legal backing must be understood. The reason can be found in the words of Mila Versteeg, professor of law at the University of Virginia, that, “bipartisan support for rights-restricting COVID-19 responses could smooth the path for constitutional erosion.” The lockdown announced should improvise facilities for the poorer sections of society who are to be most affected, not just by disease but also due to financial strains. The Courts have the authority to review government action, but there have to be certain merits to challenge these quarantines as they are taken in public interest. The greater responsibility lies on the part of responsible citizens to follow the measures taken by the government but at the same time the critical thinking on their part should not come to a halt at these critical times.

 

Aniket Chaudhary and Pratik Kumar are both second-year law students at Dr. Ram Manohar Lohiya National Law University, Lucknow, India.

 

Suggested citation: Aniket Chaudhary and Pratik Kumar, A Comparative Understanding of “Lockdown” Frameworks in the Time of the Coronavirus Pandemic, JURIST – Student Commentary, May 2, 2020, https://www.jurist.org/commentary/2020/05/chaudhary-kumar-comparative-lockdown-frameworks-covid-19/


This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org


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