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This article discusses the constitutionality of the legislative and other control measures taken to combat the spread of SARS. The statistics cited in this article were accurate as at 24 April 2003.
Severe Acute Respiratory Syndrome (SARS) came into our collective consciousness only less than two months ago, but hardly a day now goes by without our reading or hearing about it. There is enough information about SARS
floating around to discourage most of us from non-essential travel, especially to a number of cities identified as ‘SARS affected’. And the number of such ‘SARSed’ cities is growing by the day.
The impact on the economy of the region cannot be understated. With the curtailing of international travel, the hospitality industries of the region are in a state of shock. Planes, hotels, shopping malls and restaurants are
practically empty. Airports feel like ghost-towns. According to the Economist Global Agenda (23 April 2003), ‘[T]he effects of SARS are now so widespread that many analysts believe it will be more damaging to East Asia’s economies
than the war in Iraq. Standard & Poor’s, a credit-rating agency, reckons the disease’s impact could cut Hong Kong’s GDP by 0.6%–1.5% this year, Singapore’s by 0.4%–2%, and China’s by 0.5%. Some investment banks are starting to
suggest that China’s economy could shrink in the current quarter. The United Nations reckons that the combined effect of SARS and the war would cut almost half a percentage point off economic growth throughout Asia this year.’
Both the governments of Singapore and Hong Kong have announced life-line aid packages to assist the beleaguered business communities. Hong Kong’s S$2.7 billion is ten times that unveiled by the Singapore government a week ago.
First Known Victim in Hong Kong
The first known victim to die in Hong Kong on 4 March was a Chinese doctor. Since then, SARS has claimed at least 250 lives and infected more than 4,500 worldwide. Many of the early victims were health-care workers including
the World Health Organisation (WHO) doctor who first identified the virus in the Hanoi French hospital. The latest victim in Singapore was a 43-year-old cardiovascular surgeon.
SARS hit the Singapore scene in early March when two Singaporeans were admitted to our hospitals. By 6 March, WHO alerted the Ministry of Health in Singapore (MOH) that workers in the French Hospital in Hanoi had developed an
unusual respiratory illness after treating an American patient who had severe pneumonia. The response of MOH was instantaneous. The authorities immediately isolated the three patients who had developed atypical pneumonia after
travelling to Hong Kong and took necessary infection control measures. It was quickly established in all three cases that the patients had stayed in the same Hong Kong hotel.
Singapore Approach
Within a week of identifying the cases, MOH alerted doctors, issued press releases and a travel advisory. The travel advisory was issued one day ahead of the WHO travel advisory. By 15 March, a task force was formed by MOH. Two
days later, SARS was made a ‘notifiable infectious disease’ under the Infectious Diseases Act (Cap 137). By 19 March, health advisories were issued to all educational institutions. Within two days after the advisory was given, the
Ministry of Education (MOE) informed all children and teachers with fever and travel history to be isolated immediately and quarantined for ten days.
To contain the spread of the disease, all SARS cases were centralised at one particular hospital with added infection control measures for hospital staff. Home quarantine was made mandatory by invoking the Infectious Diseases
Act. Hospital visitations were disallowed and all educational institutions except universities and polytechnics were closed from 27 March through 6 April.
Anyone coming into Singapore by air or sea is required to complete a Health Declaration Card. For all inbound flights from affected areas, a visual screening of passengers is implemented and those who appear unwell or have a
fever are admitted to a specific hospital for assessment. A quasi-police force is now engaged to serve Home Quarantine Orders. To ensure that there is no breach of the orders, electronic cameras are installed in the homes of
quarantined persons.
Rapid spread in Singapore and beyond
In spite of the measures taken by the Singapore government to contain the disease, there has been a steady increase in the number of cases. As of the date of writing, 15 have died, not including two dead yet to be confirmed as
SARS-infected; 18 patients are in intensive care and 40 in hospital wards; while 114 have been discharged, making a total of 189 cases in less than two months. There are also 95 suspected cases and 2,467 under mandatory home
quarantine.
It is reported that scientists have now identified the virus that causes SARS as a strain of the common cold. However, there are signs that the virus is mutating rapidly, which could make developing a vaccine more difficult. United Nations health officials report that the mortality rate has risen from 4% to 5.9% of people affected worldwide.
Harsher actions needed
Yesterday (23 April) Prime Minister Goh Chok Tong issued an open letter expressing his concern that Singaporeans are still irrational and irresponsible in their conduct with respect to SARS. Believing SARS to be ‘the worst
crisis the country is facing under his leadership’, he has decided ‘for the wider good … to take a tougher approach in enforcing the Home Quarantine Orders’.
Those who are subject to Home Quarantine Orders are expected to answer telephone calls from health officials who are tasked to monitor their progress. The Prime Minister made it clear in his open letter that ‘when a person on
home quarantine does not answer the telephone call … [quasi-police officers] will immediately proceed to electronically tag them, whether or not they have broken the quarantine’.
Further, the Prime Minister said that at the next sitting of Parliament, the Infectious Diseases Act will be amended. The amendments are to provide composition of fines for those who breach the Quarantine Orders. Repeat
offenders will soon face a jail term. Given the critical SARS situation, the amendments will be put through on a Certificate of Urgency and it is expected that the amendments will be effectively passed by 24 April 2003.
Australian Approach
Though Australia is not identified as a SARS affected country, the nation’s parliaments have been just as proactive in legislating against the spread of the disease. New South Wales, for instance, has just added SARS to a list
of dangerous, communicable diseases, allowing authorities to fine or jail potential sufferers if they refuse treatment. SARS is now a category four medical condition which means that health authorities can force sufferers to
undergo testing and treatment, and to be placed in quarantine. Patients who refuse to be isolated can be fined up to $5,500 (US$3,500) or jailed up to six months.
Compelling Public Interest
It is a good sign that the governments in Singapore and Australia are enacting tough laws to counter the threat of SARS. There is much that is still unknown about this virus. But all agree that tough legislation is necessary
for tough times. They ‘are in place to safeguard the health of our communities’, NSW Premier Bob Carr said. These sentiments are shared by the Prime Minister of Singapore: ‘These measures may be harsh, but they are necessary.
Taking a lenient attitude will not help us break the cycle of infection. Instead, it may undermine the stringent infection controls we have painstakingly put in place to protect Singapore from SARS.’
Some Human Rights Issues
In the wake of a number of cases of SARS in Toronto, Canada, Chinese Canadians are falling victim to racially-motivated hate crimes because it is known that SARS originated from Guangdong, China. Chief Commissioner Keith Horton
of the Ontario Human Rights Commission pointed out that discriminatory action against persons or communities because of an association with SARS is prohibited by the Ontario Human Rights Code.
The fact that some governments are now using isolation and quarantine in their attempts to retard the spread of SARS raises the question whether any human rights have been violated. International law recognises that governments
may infringe on civil and political rights for the maintenance and protection of public health. (See David P Fiddler, International Law and Infectious Diseases, 1999 at pp 172–173.) The Siracusa Principles on the Limitation and
Derogation of Provisions in the International Covenant on Civil and Political Rights (UN Doc E/CN.4/1984/4) are applicable to the control of infectious disease. International law would permit governments to enact public health
measures that infringe on civil and political rights provided the measures are:
The question of necessity is determined by ascertaining that the measures are:
Application of Human Rights Law
Applying the relevant international law and principles on human rights, it is evident that the laws enacted by Singapore to prevent the spread of SARS are not per se unlawful. The two relevant Articles of The Constitution of
the Republic of Singapore are found in Part IV under the general title ‘Fundamental Liberties’. Article 9(1) states: ‘No person shall be deprived of his life or personal liberty save in accordance with law.’ Article 12(1) states:
‘All persons are equal before the law and entitled to the equal protection of the law.’ The question is whether the law that orders a person to be quarantined and therefore deprived of his liberty is unconstitutional. A further
question may also be posed: Is a person who is so quarantined and subsequently punished for defying the order only because of his association with SARS deprived of equal protection of the law? The first question is about the right
of a person not to be deprived of his liberty, and the second is about his right not to be discriminated against.
With regard to the second question, Art 12(1) assures the individual his right to equal treatment with individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be
treated by way of punishment more harshly than others. It does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances
of the offence that has been committed (Ong Ah Chuan v PP [1981] 1 MLJ 64 (Privy Council, on appeal from Singapore)). This principle is also enunciated by the Siracusa Principles. Hence, as long as the law is applied in a
non-discriminatory manner, the law does not violate either the international law on human rights or the Singapore Constitution.
With regard to the first question (Art 9(1)), Lord Diplock in the same Privy Council case held that ‘in accordance with law’ must refer to a system of law which incorporates the fundamental rules of natural justice. It means
that any law that deprives a person of his liberty must not flout the rules of natural justice, otherwise this Article entrenched in the Constitution purporting to protect the fundamental liberties of its citizens would be an
exercise in futility. In the same year, the Privy Council in Haw Tua Tau v PP [1981] 2 MLJ 49, made a further observation that what comprises fundamental rules of justice is not carved in stone. They may change with time. Hence
the Article does not call for the perpetuation of any rules or laws as they existed when the Constitution came into force.
Conclusion
Reading the decision of the Privy Council in the context of the Siracusa Principles and the international law governing infectious diseases, it would appear that there is compelling public interest to enact almost draconian
measures to resist the epidemic. The question is whether these measures are being enacted without flouting natural justice. Since the notion of natural justice is shifting and vague, depending on the context of national needs, it
would appear that those who wish to challenge the constitutionality of the measures will face a very difficult task. There is case law in Singapore to support the position that Parliament knows what is best for its people and,
accordingly, legislates to meet their particular needs. (Such legislative social engineering is commonplace in Singapore.) When a measure is enacted, there is a presumption of constitutionality. ‘Therefore,’ concludes Yong Pung
How CJ in PP v Taw Cheng Kong [1998] 2 SLR 410, ‘to discharge the burden of rebutting the presumption, it would usually have been necessary for the person challenging the law to adduce some material or factual evidence to show
that it was enacted arbitrarily or had operated arbitrarily. Otherwise, there would have been no practical difference between the presumption and the ordinary burden of proof on a person asserting unconstitutionality.’
Challenging the constitutionality of the measures at this time is not something to be expected from Singaporeans if the sentiments of the readers of the Straits Times (the Singapore daily) are representative of how people feel
about the government’s harsh intervention. Said one of them, Nariko on 24 April 2003: ‘With just these cases, so many people are affected: their health and livelihood. How can it not cross their minds that it is so serious?
Heavier penalties should be imposed and even the possibility of putting the faces of irresponsible Singaporeans on the newspapers.’
William Wan
Kelvin Chia Partnership
Email: william.wan@kcpartnership.com.sg