The outbreak of novel coronavirus (COVID-19) is having serious impacts in every spare of our life across the globe. This deadly communicable disease has deep implications on legal arena as well. In this time of massive spread of COVID-19, there are some interesting debate and legal questions regarding personal liberty, public good, freedom of assembly, freedom of religion, legal rights during quarantine, barring citizens from entering into motherland etcetera. It is noticeable that few individual liberties have already been curtailed temporarily all over the earth for public good. Likely Bangladesh has taken some measures including quarantine (both institutional and home quarantine) to prevent the wide spread of novel coronavirus (nCoV). Among many other initiatives, the Directorate General of Health Services also circulates notification for public interest about the enforcement of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 to confront this newly emerged pandemic.
Albeit there are a number of legal issues, this article will remain confined in quarantine only as this is evolved as highly discussed topic at present in the country whereas many nonresident Bangladeshi citizens refused to go into quarantine who travelled from corona hotspot. Quarantine denotes a state or place of strict isolation for a well person or group of people who may have come in contact with contagious diseases to see if they become ill. Nevertheless, people who appear apparently healthy could spread this contagious pathogen without ever knowing they were carriers, which is why travelers who appear sound may still be quarantined, depending on where they are visiting from.
Quarantine comes from the Italian words quaranta giorni which means 40 days. Since 14th century ships arriving in Venice from infected ports were required to rest at anchor for 40 days to guard coastal areas from plague epidemics. This custom later called quarantine. Since then, quarantines have often created a controversial vague area between public good versus personal liberty.
However, in Bangladesh, according to section 5(1)(k) of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018; the Directorate General of Health Services has the power to keep anybody in quarantine or isolation only if that person is suspiciously being affected with communicable disease. Nonetheless, the Act doesn’t suggest any way to determine the said suspicion. Consequently, the directorate has no authority to keep anybody in quarantine before getting medical report or visible symptoms of nCoV under the present law. Thus, presently there is no scope of keeping an apparently healthy person in quarantine even though s/he comes from a coronavirus hotspot as it may take up to 14 days or more to reveal the symptoms. So, the mentioned Act needs to be amended to quarantine every person comes from infected place whether fit or ill.
Moreover, COVID-19 is still not included in the list of communicable diseases provided by the Communicable Diseases (Prevention, Control and Eradication) Act, 2018. Hence, authority concerned must insert novel coronavirus in the list immediately and publish an official gazette notification in this effect to take action under this Act.
Nevertheless, if there is credible suspicion that somebody is affected by a contagious disease and disregard to remain in quarantine, s/he commits crime even though that is a non-cognizable, bailable and compoundable offence but punishment for which may extend to three months imprisonment or maximum fifty thousand taka fine or with both (S. 25(2) & 28). Under section 27 of the law, the provisions of the Code of Criminal Procedure (CrPC) have to follow to file complaint, investigate, try and appeal; as a result punishment through mobile court in few occasions was legally incompatible. However, the Act is silent about whether anybody can challenge the decision of quarantine. In that case, anyone could challenge a quarantine order in the High Court Division through a writ of habeas corpus.
In the massive wake of COVID-19 pandemic and in a densely populated country like Bangladesh; quarantine is crucial to protect people from being affected and control spread in gigantic scale. Because there is no freestanding constitutional right for normal life while a pandemic endangers many people’s lives. It is also well established principle of law that a person can be confined against his/her will if the individual presents a danger to himself/herself or others or for greater good, even if the person being confined has not committed any crime.
On the contrary, it tends to be controversial because it is akin to jail time, using the coercive power of the state to tell people that they have to stay confined, even if in their own homes. At the same time, the government cannot simply confine people for arbitrary reasons, or without providing an adequate explanation or without following due process of law. If anyone is quarantined, s/he does not necessarily have a right to be released from that quarantine, but that person does have a right to demand some sort of adjudicative process to determine whether the quarantine is justified. Furthermore, quarantined people have some basic legal rights like right to be informed, right to privacy, right to food, right to get health services, right to get livable accommodation in case of institutional quarantine etcetera.
Nevertheless, COVID-19 creates a critical situation for whole humankind while we all need to sacrifice and contribute from everybody’s end to confront it jointly but not with the cost of one’s legal rights and without maintaining due process of law.
Published on the Daily Asian Age as Op-Ed on 3 April 2020
