Administrative law Covid-19 Criminal justice Illegality Irrationality

Public Health Law & Ethics in the Time of COVID-19 | Symposium on COVID-19 & Public Law | By Daryl WJ Yang

Daryl WJ Yang serves as the Managing Editor of the Singapore Public Law Blog. He graduated with a Bachelor of Laws (First Class Honours) and a Bachelor of Arts with Honours (Magna cum laude) with a minor in Anthropology from the Faculty of Law and Yale-NUS College at the National University of Singapore. Daryl is grateful to Kevin Tan and Marcus Teo for their feedbacand advice.

Cover photo by Gustavo Fring from Pexels.

Since the first case of the coronavirus disease 2019 (“COVID-19“) was confirmed in Singapore at the end of January 2020, the number of cases has risen to almost 45,000 as of early July 2020. To address this unprecedented public health crisis, governments around the world have enacted extreme measures that have ground the global economy to a halt. Singapore was no exception: on 7 April 2020, the Singapore Government passed the COVID-19 (Temporary Measures) Act 2020 (the “COVID-19 Act”) which granted the Minister for Health the power to make regulations for the purpose of preventing, protecting against, delaying or otherwise controlling the incidence or transmission of COVID‑19 in Singapore.

These regulations are enacted under the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (the “COVID-19 Regulations”), which prescribes the restrictions on movement during the Circuit Breaker as well as the subsequently social distancing and mask-wearing requirements. Also known as nonpharmaceutical interventions (NPI), these regulations are crucial in delaying the spread of COVID-19 which can reduce the burden on critical healthcare services and resources.

However, the implementation of such measures cannot be guided only by the principle of necessity; their efficacy also depends on the principle of legitimacy, which depends on how proportionate and fair these rules are perceived to be. As Kenny Chng highlighted in an earlier article, the state’s powers in times of emergency should still be “exercised in accordance with the requirements of practical reasonableness”.

In this regard, there are several normative bases for evaluating the proportionality and fairness of the COVID-19 Regulations and whether Parliament may have gone too far in imposing the Circuit Breaker restrictions. Perhaps most influential is Childress et al’s public health ethics framework which sets out the five “justificatory conditions”, namely effectiveness, proportionality, necessity, least infringement and public justification.[1]

For instance, concerns regarding the necessity and degree to which one’s privacy should be sacrificed have been raised in relation to the use of the TraceTogether app and surveillance technologies for contact tracing. In relation to the condition of proportionality, Kass has emphasised the principle of distributive justice which demands the fair distribution of benefits and burdens, especially in relation to restrictive measures; in addition, no single population should be subjected to disproportionate burdens.[2] These concerns came to the fore as experts debated the trade-off between lives and livelihoods during the Circuit Breaker which ground the economy to a halt and threatened the jobs of many low-wage workers in the construction, service and retail industries.

The use of criminal law in controlling the spread of COVID-19

With this public health ethics framework in mind, how reasonable is the use of criminal sanctions to control the spread of COVID-19? Under Part 7 of the COVID-19 Act, a person who fails to comply with the COVID-19 Regulations may be fined up to $10,000 or imprisoned for up to 6 months or both. A second or subsequent offender may be fined up to $20,000 or imprisoned for up to 12 months or both.

In relation to the first justificatory condition of effectiveness, public health experts have generally discouraged the use of criminal law in addressing infectious diseases. A 2017 World Health Organisation report advised governments against “placing heavy reliance on criminal law and penalties” in controlling infectious diseases because of the “potential for unintended consequences”. For instance, individuals may be disincentivised from coming forward for testing and treatment for fear of criminal penalties or official investigations.

The practical implementation of these regulations may also raise questions of proportionality. The COVID-19 Regulations have hit low-wage workers much harder than other groups of workers who may still be able to continue to work from home. This has led some to breach their stay-home or quarantine orders in a bid to continue working or keep their jobs. For instance, a newspaper vendor who breached his stay-home notice was sentenced to two weeks’ jail for attending to his customers’ complaints about the non-delivery of newspapers. A security officer was sentenced to six weeks’ jail for reporting to work despite being issued a stay-home notice because he was the sole breadwinner of the family.

With regard to the exercise of prosecutorial discretion, the Attorney-General’s Chambers explained in a statement to the media that not every breach of the COVID-19 Regulations will be prosecuted. Instead, different factors – such as the severity of the breach and the culpability of the offender – will be taken into account. Particularly egregious are breaches “committed in full view of the public and which deliberately defy the law” because they “mock and belittle the efforts of those who abide by the law”. The Health Minister similarly highlighted during the Second Reading of the COVID-19 Act the need to “send a strong signal to prevent such behaviour from negating our collective efforts during this crucial circuit breaker to slow down the infection”.

However, since the offences under Part 7 of the COVID-19 Act provide for the defence of “reasonable excuse”, it may be worth mulling over whether breaches committed by those anxious about their livelihoods during these uncertain times should be prosecuted or if they may constitute a “reasonable excuse”. After all, as the High Court recently held, whether an excuse is reasonable “has to be determined in the light of the particular facts and circumstances of the individual case, from the perspective of a reasonable person in the accused’s shoes at the relevant time of the offence”.[3]

Further, even if these individuals should be charged, how strong a mitigating factor should their socioeconomic circumstances be in convincing the court to impose a non-custodial sentence? The courts have so far been unwilling to consider the financial hardship caused by imprisonment on an offender’s family on the basis that the offender “should have thought hard about these consequences before committing the offences in question”.[4] In the current circumstances, how then should the court consider the impact of imprisonment on an offender’s family when he had committed the offences precisely because he had thought hard about the hardship that his family would suffer?

Proportionality of administrative penalties

The issue of proportionality also arises in relation to administrative penalties imposed on non-Singaporean offenders who had their work passes revoked and were permanently banned from working in Singapore.

According to the Ministry of Manpower, over 140 work pass holders have had their work passes revoked between 1 May and 25 June 2020, of which almost 100 were punished for gathering during the Circuit Breaker period. This measure has however been criticised as a “harsh and disproportionate” measure by the Humanitarian Organisation for Migration Economics (HOME), which urged MOM to “weigh the seriousness of the violations against the workers’ plight amidst the Covid-19 pandemic”.

Indeed, it is debatable whether revoking a work pass holder’s work pass and permanently banning him from working in Singapore for loitering outside his place of residence or breaching other COVID-19 regulations is proportionate since he would likely have received a fine for such breaches if not for his immigration status. Furthermore, low-wage foreign workers are already a vulnerable group that is disproportionately affected by the COVID-19 crisis, having made up most of the cases in Singapore.

Notwithstanding these ethical concerns, there may be little legal recourse for those aggrieved by these penalties. Under Singapore law, the Ministry of Manpower’s administrative actions can be challenged under the grounds of illegality and irrationality. However, it does not appear that these grounds will apply in relation to the imposition of administrative penalties for breach of the COVID-19 Regulations.

First, in relation to the ground of illegality, these administrative penalties are not ultra vires in light of section 7(4) of the Employment of Foreign Manpower Act, which provides that the Controller of Work Passes may impose new conditions of a work pass, revoke a work pass or debar any person from applying for or being used with a work pass.

Second, in relation to the ground of irrationality, the threshold of Wednesbury unreasonableness is extremely high. The ethical concerns discussed above would not amount to the absurdity required under this ground that “no sensible person could ever dream that it lay within the powers of the authority”.[5] While the courts have more recently considered “proportionality-type questions” under the ground of irrationality, they may not be as willing to do so in this case for two reasons. On one hand, unlike the cases where proportionality concerns were raised, the revocation of one’s work pass does not implicate issues of liberty or constitutional rights.[6] On the other hand, the courts are likely to afford the government greater administrative autonomy to address this extraordinary global public health crisis.[7]

Public health law in the time of COVID-19

Singapore is not unique in imposing criminal sanctions on those who breach regulations aimed at controlling the spread of COVID-19. Under Taiwan’s Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens, those who violate isolation and quarantine orders may be fined up to NT$ 1 million (around SGD$47,365). Under Indonesia’s Health Quarantine Law, the failure to comply with the Indonesian government’s COVID-19 measures may be jailed for up to 1 year and fined up to IDR 100 million (around SGD$9,626).

However, as the cliché goes, the devil is in the details. We must also consider whether the criminal sanctions are proportionate in terms of not only the severity of the sanctions imposed but also the groups that are most affected by the regulations imposed. As health ethicist Sridhar Venkatapuram noted, “public health ethics is not primarily or foremostly about the conflict between the interests of the few versus the greater good; it is about how we organize our society, how we relate to one another, to ensure that every individual is able to pursue a good life.”

Should low-wage workers at risk of losing their livelihoods be punished as severely or at all compared to those who wilfully breach regulations for more trivial reasons? In particular, should those workers be deported and banned from working in Singapore permanently? These are questions that deserve greater scrutiny as Singapore grapples with the multifaceted effects of COVID-19 on public health, our economy and the social compact.

[1] Childress et al, “Public health ethics: Mapping the terrain” (2002) The Journal of Law, Medicine & Ethics 30(2)  170.

[2] Nancy E Kass, “An ethics framework for public health” (2001) American Journal of Public Health 91(11) 1776.

[3] Ma Wenjie v Public Prosecutor and another appeal [2018] 5 SLR 775 at [31].

[4] Ang Jwee Herng v Public Prosecutor [2001] SGHC 73 at [78].

[5] Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 per Lord Greene MR at 229.

[6] Swati Jhaveri, “Localising Administrative Law in Singapore: Embracing Inter-branch Equality” (2017) Singapore Academy of Law Journal 29 828, 850.

[7] Eugene KB Tan, “Curial Deference in Singapore Public Law: Autochthonous Evolution to Buttress Good Governance and the Rule of Law” (2017) 29 Singapore Academy of Law Journal 800, 817.

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