Is it legal and constitutional to quarantine Covid-19 patients?

Can the government legally isolate or quarantine Covid-19 patients? Is it constitutional?

Since last month, Covid-19 or the coronavirus has been spreading in Malaysia. How fast and far it will spread, how many people will get sick, and how many of those will die is still unknown.

Malaysia expects a second wave of coronavirus in the country, with community transmissions likely to increase. To date, there are 50 confirmed cases.

The World Health Organization and US Centers for Disease Control and Prevention have said 14 days represents the outer limits of the virus’ possible incubation period.

Locally, there were cases where suspected patients were treated in isolation wards, isolated at hotels, placed under home surveillance or quarantined in hospital for 14 days.

Even if they are not sick, the government may order them to be quarantined, confined to their homes or other locations with others who may also have been exposed to the virus.

The government has provided supportive treatment and measures based on patients’ clinical condition. No proven specific treatment or anti-viral drug for Covid-19 is currently available.

The question now is: can the government force a person to be isolated or quarantined under the law?

The short answer is yes. The federal government derives its authority for isolation and quarantine from the Prevention and Control of Infectious Diseases Act 1988.

Covid-19 is a relatively new virus, and the act does not specifically stipulate it as an infectious disease, but I believe the definition of ‘any other life threatening microbial infection’ covered under the First Schedule of the act is sufficient.

This act confers upon the government vast powers for the prevention and control of infectious diseases. Authorised officers are empowered to conduct inspections or detain on any place any person or thing and take preventive or remedial measures.

Any person (first offenders) who obstructs or disobeys such executions commits an offence and is liable upon conviction to imprisonment for a term not exceeding two years, a fine or both.

However, if a person who has committed no crime is reluctant to comply with the related order or action, can he challenge it as his fundamental right guaranteed under the Federal Constitution?

Although Article 5(1) of the Federal Constitution stipulates that no person shall be deprived of his life or personal liberty save in accordance with law, this right to personal liberty is not absolute and is subject to qualifications. This is because it is trite that such constitutional provisions should be interpreted generously and liberally.

Ultimately, our government has a responsibility to ensure the health of Malaysians and to control the spread of infectious diseases. This can be done only by having provisions or policies for adequate health and social measures or powers.

Andy Yong is a lawyer and an FMT reader.