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Friday, 1 May 2020 00:00 - - {{hitsCtrl.values.hits}}
By Chandani Kirinde
Attorney General Dappula De Livera yesterday informed Acting IGP Chandana Wickramaratne that restriction of movement imposed on the general public by way of curfew was acceptable under the imperative and unavoidable circumstances, in view of the COVID-19 pandemic.
He noted that failure to take such necessary steps is a threat to the existence of the State, and these measures are taken to protect public health and meet the general welfare of society. “The said ‘restriction of movement’ given effect through the ‘quarantine curfew’ has to be construed as having rational nexus to the objective sought to be achieved, namely the prevention and control of COVID-19,” the AG said in a letter sent to the Acting IGP.
Wickremaratne had written to the AG seeking advice on “restrictions of movement of general public in respect to the COVID-19 pandemic.”
The AG in his reply made reference to fundamental rights guaranteed under the Constitution, which may be restricted in terms of measures taken to control COVID-19, but noted that in terms of Article 15 (7) of the Constitution, it has been mandated that the fundamental rights declared and recognised by Article 12,13 (1),13 (2) and 14 “shall be subject to such restrictions, as may be prescribed by law, in the interest of national security, public order and the protection of public health or mortality for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirement of the general welfare of democratic society.”
The AG noted that COVID-19 was declared a quarantinable disease by way of Gazette Notification dated 20 March 2020, and in terms of a Gazette dated 25 March 2020, the Director General of Health Services (DGHS) was designated the Proper Authority.
Accordingly, the DGHS, acting under the regulations had delegated to the Acting IGP the powers to implement the regulations to control and prevent the COVID-19. The DGHS has sent several communications to the Acting IGP requiring him to take steps to “restriction movement “pertaining to the general public from time to time, for the whole island or in respect of designated areas.
The AG said that in the above circumstances, while the measures so adopted may be amenable to judicial review, in the present context, it is pertinent to note that the measures implemented by the Police on the request of the DGHS are measures deemed necessary to prevent and control the spread of COVID-19.
He said that the restriction of movement of the public has been taken by the Police as per the directive of the DGHS, who has been designated the Proper Authority for the purpose of control and prevention of COVID-19, and the steps thus taken have been deemed necessary and would have to be justified inter alia on several premise:
• That proportionality of the action taken is commensurate with the exceptional situation of COVID-19 being declared as a pandemic situation by the World Health Organization (WHO)
• That the measures adopted including the imposition of restrictions of movement are of a temporary nature and its duration is strictly for no longer than would be necessary
• And that steps have also been taken to ensure and facilitate the provision of essential services such as health services, livelihood, welfare, and the wellbeing of the general public, by the introduction of the curfew permit system.
In the taking of the said steps, the powers, duties and functions vested in Police officers inter alias under the Police Ordinance, the Penal Code and the Criminal Procedure Code should also be adhered to.
