In Lahore, a designer had her cook tested for the coronavirus. He tested positive and went home to his village. Apparently, he used public transport on his journey home. The designer’s husband was arrested. The designer got upset. She made an impassioned plea to the prime minister through a short video. The video – which apparently was never intended to be publicly released – had an impressive chandelier in the background.
The husband was released on bail. The couple released a video on social media explaining their version of events. They also thanked the prime minister and the armed forces.
Was any crime committed? While apparently the case is being investigated, let us assume for the sake of argument that an affluent, chandelier-owning couple get alarmed when they discover that their cook has corona. They tell him to leave the house immediately without regard to the possibility of the spread of the infectious disease. One may consider this conduct reprehensible. Is it a crime?
Under the Pakistan Penal Code, it is an offence to negligently do an act which you know or have reason to believe is likely to spread the infection of any disease which is a danger to life (Section 269). This is an unusual offence since it criminalizes ‘negligent’ conduct as opposed to intentionally malicious conduct. Negligence is a tort (a civil wrong) which imposes liability for damages where you have acted in breach of a duty of care.
In our hypothetical example, what is the duty of care owed by the affluent couple as regards their corona positive cook? Did they have an obligation to report the case to the authorities? At the material time, there was no law that required a person to report a corona positive employee to the authorities. In any case, the relevant provision in the penal code does not criminalize omissions. It only criminalizes negligent acts. Where failing to do an act is a crime, the law must be specific and citizens must be clear about the scope of their positive obligations. Article 4 of the constitution states that no person shall be compelled to do that which the law does not require him/her to do.
Was there a duty to limit the movement of the cook and effectively incarcerate him or take him to a quarantine centre even against his will? There is no legal obligation to this effect. It would be troubling if an employer had a legal obligation to restrain the physical movement of an employee and effectively imprison him.
Does the act of requiring an infectious employee to leave a place of work constitute a ‘negligent’ act? It would depend on the circumstances. Advising an employee to take precautions and arranging for transportation to a quarantine center would appear to be a proper discharge of the duty of care. What if the employee refuses to listen and insists on going home? In such circumstances, as long as the employee has been advised to take precautions and isolate himself in his home, it would be difficult to argue that an employer has an additional duty. It would be negligent if you directed the employee to leave immediately whilst knowing that he would be forced to interact with several other people as a consequence of this direction.
The Lahore designer and her husband (like every other citizen of Pakistan) will be judged on the state of the law when the alleged offence was committed. Under the constitution, no criminal law can have retrospective effect.
In Punjab a new law came into effect on March 27, 2020: the Punjab Infectious Diseases (Prevention and Control) Ordinance 2020. It gives legal backing to draconian steps that the government may need to take to control the spread of the coronavirus.
The law empowers the government to require doctors and health facilities (including private ones) to treat patients. It does not prohibit charging for such services but does not expressly stipulate that compensation will be payable for providing services or facilities on the basis of a government directive. Any class of persons (including doctors and nurses) may be required to undergo medical examinations and to submit medical reports. They may be required to wear certain specified clothing and be subject to restrictions as to where they may go and with whom they maintain contact.
The legislation states that a potentially infected person can be required to undergo screening and assessment at a specified place. The term “potentially infected person” is defined to mean a person who is suspected to be infected or someone who has arrived from or through an area affected by an infectious disease within fourteen days from the date of arrival. Any direction to a potentially infected person must include reasons as to why the screening and assessment is required. If the person does not voluntarily attend, the police can be directed to bring the person to the specified place.
The person can be kept for screening and assessment purposes for a period of 48 hours. This period can be extended if the medical officer feels it is justified. Any such extension needs to be reviewed daily. For the screening and assessment, the potentially infected person is required to provide all relevant information and can be required to provide a biological sample and to allow a medical examination. If after the screening, it is determined the person is infectious he can be required to remain at a specified place in isolation from others for a specified period. This period will not exceed fourteen days unless the medical officer considers it necessary.
Section 14 of this new law imposes a duty on every person to inform the authorities if you know or have reason to believe that a person under your care, supervision or control is suffering from an infectious disease.
At times of crisis, liberties often need to be curtailed. The public needs to be informed about the provisions of the new law. It is important that the sweeping powers granted are limited in duration and used for the purpose for which they have been enacted.
Society or its new manifestation, social media, can judge the Lahore designer and her spouse on whatever yardstick it considers fit. The courts can only judge them on the law as it existed at the time.
The writer is an advocate of the Supreme Court.
Email: ahmadhosainicloud.com