By Ashan Nanayakkara –
In the year 1804, Napoleon became the Emperor of France, next year British concurred the Costal line of Ceylon, Slave Trade was abolished by Great Britain in 1807, Richmond College in Galle, the oldest school in Sri Lanka and the oldest Methodist School in Asia was found in 1814 under Wesleyan Mission, next year British and Kandyans signed the Kandyan Convention on 2nd March 1815, and 2-years later, the Uwa-Wellassa Great Rebellion of 1817–1818 erupted and the British massacred nearly the entire male population of Uva Province above the age of 18-years, which is approximately 8000-10000 and which is also double the death toll of Covid-19 as at the time of writing this Article, composer Ludwig van Beethoven died in 1827, Conservative Party was formed by Sir Robert Peel mid-1835, in 1837, Queen Victoria came to throne (incumbent 93-years old Queen Elizabeth II is Queen Victoria’s great-great-granddaughter), Philosopher, Auguste Comte expired in 1857, 2-years later Charles Darwin published “Origin of Species”, in 1961, Abraham Lincoln became the President of America and in the same year American Civil War started, 4-years later, Abraham Lincoln abolished the Slavery in America, in 1867 a Scot named James Taylor planted the first 19 acres of tea in Loolecondra Estate near Kandy, Ceylon, marking the birth of Sri Lanka’s tea industry, in 1869, Suez canal opened, Alexander Graham Bell invented the most essential communicating apparatus in the current world, the telephone 7-years later, Thomas Alva Edison found electric Bulb in 1879, Vidyodaya Pirivena which was one of the prominent monastic college for the education of Buddhist monks in Ceylon was founded in 1873 by Ven. Hikkaduwe Sri Sumangala Thero, in 1879, Royal-Thomian – the Eton and Harrow of Ceylon commenced their annual cricket encounter, French poet, novelist, and dramatist Victor Hugo died in 1885 leaving his masterpieces, inter alia, Les Misérables, and The Hunchback of Notre-Dame which are evergreen to date, in year 1893 New Zealand became the first country to give universal franchise to women, in 1895 Olympic games revived in Athens, 1,500-years after being banned by Roman Emperor Theodosius, and whilst Bram Stoker was writing “Dracula”, Sri Lanka introduced Quarantine and Prevention of Diseases Ordinance No. 03 of 1897.
Even during this era, 90% of Ceylonese were living in houses built of warichchi (built by wattle and daub or clay) and those gullible inhabitants were unheard of electric bulbs.
In re Medical sector, Peter Daniel Anthonisz (25 June 1822 – 12 June 1903) was the first Ceylonese to obtain an M.R.C.P. and F.R.C.S and became a doctor in this island nation. In 1817 Deputy Inspector General of Hospitals Charles Farell recommended to the British Governor, Robert Brownrigg that a hospital for the poor be established and thus Colombo’s first modern hospital was established in 1819 at Prince Street in Pettah. Only on 26th February, 1887, first establishment of the Ceylon Branch of the British Medical Association (now the SLMC) was formed.
Talking further on the level of life standards of Ceylon during this period, A-1 highway was the first in that kind began its construction in 1820 under the orders of the British Governor of Ceylon. The construction was carried out by Captain William Francis Dawson—who died during the project and it must be written down for those who easily passing through Kadugannawa Rock that the even the rock of Kadugannawa was pierced in 1820. Lack of road-structure, width and breadth of the country, showcases how there was no proper access to major towns in this island during this time. Only in 1833 the Colebrooke-Cameron Commission created the Legislative Council of Ceylon, the first step in representative government in British Ceylon. Thus, modern socio-economic and political status for then Ceylonese was at far away. Most of the Ceylonese were just farmers!
Having fabricated the socio-economic and political backdrop of Ceylon as at the dates of introducing the Quarantine and Prevention of Diseases Laws in to this tiny island, bringing such a law to this country is a wonder. Even Karl Benz built his first automobile in 1885 in Mannheim and 12-years later, Ceylon passed Quarantine and Prevention of Diseases Ordinance No. 03 of 1897. The preamble to the said Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 stats as follows: “AN ORDINANCE TO MAKE PROVISION FOR PREVENTING THE INTRODUCTION INTO SRI LANKA OF THE PLAGUE AND ALL CONTAGIOUS OR INFECTIOUS DISEASES AND FOR PREVENTING THE SPREAD OF SUCH DISEASES IN AND OUTSIDE SRILANKA.” Since then, about 10-times or more, this piece of legislation has been amended and according to that the Minister (of Health) could make regulations under following areas, viz,
“Section 3. (1) The regulations made under section 2 may provide amongst other things—
(a) for placing aircraft, vessels and boats arriving at any port or place in Sri Lanka in quarantine, for the manner of disinfecting the same, and for the imposing and prescribing the method of recovery of any charges, which may being incurred by Government in carrying out such operations;
(b) for placing persons or goods coming or brought in such aircraft, vessels or boats in quarantine, for the manner of disinfecting or fumigating such goods, for the imposition of fees or charges for carrying out such operations and for the method of recovering such fees or charges;
(c) for prohibiting or regulating the landing of persons or goods from aircraft, vessels or boats either absolutely or conditionally;
(d) for establishing and maintaining quarantine stations, and for regulating the management of the same, and for the charging, imposing, and recovering of fees for the use and occupation of such stations, and for the cost of maintenance of the persons occupying the same;
(e) for inspecting aircraft, vessels and boats leaving or arriving at any portor place in Sri Lanka, and for the detention thereof or of any person intending to sail therein, as may be necessary;
(f ) for inspecting persons travelling by railway or otherwise, and for segregating in hospitals or otherwise persons diseased;
(g) for isolating all cases of disease and diseased persons; for closing wells, pits, cesspits, and cesspools;
(i) for prescribing the mode of burial or cremation of any person dying of disease;
(j ) for regulating the number of persons to be allowed to inhabit any dwelling place;
(k) for the removal from infected localities to places of observation or other places of persons found in such localities;
(l) for the removal of diseased persons to hospitals or other places for medical treatment, and for their detention until they can be discharged with safety to the public;
(m) for the cleansing and disinfecting of drains, sewers, cesspits, and of houses, buildings, rooms, and other places which have been occupied by any diseased person, or which are otherwise in an insanitary condition, and, if expedient, for destroying the same, with or without compensation as may be deemed expedient;
(n ) for the disinfecting and, if expedient, destroying, with or without compensation as may be deemed expedient, goods which have been in contact with any diseased person, or which may be deemed capable of spreading disease;
(o) for prescribing and regulating the seizure, detention, and destruction or disposal of any goods landed or otherwise dealt with in contravention of any regulation made under this Ordinance, and for pre-icnhing and regulating the liability of the owner, or consignor or consignee or importer of the goods, for the expenses connected with the seizure, detention, and destruction or disposal thereof;
(p) for prescribing the reporting to such officer or officers as may be named in the regulations, by medical practitioners and persons professing to treat diseases, of cases of disease treated by them;
(q) for prescribing the reporting by the householder or occupier of any house or premises to such officer or officers as may be named in the regulations of any case of serious illness occurring in any such house or premises; and the visiting and inspecting of such case by such officer or officers;
(r) for the appointment of inspectors and other officers to carry out the provisions of this Ordinance or of any regulations made thereunder, and for regulating their duties and conduct, and for investing them with all powers necessary for the due execution of their duties;
(s) for prescribing the publication of any regulations made under this Ordinance, and for prescribing and regulating the form and mode of service or delivery of notices and other documents…”
The above area of law is tailor-made for the current plague faced by Sri Lanka to tackle with the novel Corona virus which is also named as Covid-19. By stark of luck, Sri Lanka is rich with legal provisions, which were established merely 120-years ago, from which we have enough legal regime to face the Covid-19 pandemic. It may have been the intentions of the framers of the legislature to prevent some devastating pandemics prevailed over East-Asia to Europe, American and African Continents, which have marred the mortality levels of the world pollution during 1800.
According to historians, in the time memorial, earth had succumbed to 3-devastating Plagues. Of which pre-19th century, world had suffocated from 2-pandemics and 1 in 1920s. The first was the Plague of Justinian, which ravaged the Byzantine Empire and surrounding areas in years 541 and 542. The second was the ‘Black Death’, which killed at least one third of Europe’s population (estimated 75 to 200 million people) in a series of expanding waves of infection from 1346 to 1353. This unsympathetic disease was spread by a bacillus called Yersina pestis mainly through the vectors of fleas and rats which were very common in Medieval household and merchant ships. But, subsequently, it was the human who carried the virus. This too initiated from China and spread around the globe through the Silk Road. Many believed this epidemic was a punishment by God for their sins, and could be relieved by winning God’s forgiveness. Various groups such as Jews, friars, foreigners, beggars, pilgrims, lepers and Romani, were attacked by religious fanatics alleging that the former brought about this lethal disease.
More than the said 3-major-Plagues, there were 5-pandemics during the 19th centaury the world had to deal with. The first cholera pandemic (1817-1824) began in Bengal, and then spread across India which ended by killing Hundreds of Thousands of Indians. It was reported that more than 100,000 of people were succumbed to this plague only in islands of Java during at its peak. The second cholera pandemic (1826-1837) made deaths of 100,000 in Hungary and Germany, killed 130,000 people in Egypt, about 55,000 in London and the United Kingdom, about 20,000 in Paris reaching total deaths of 100,000 in France and thousands of people in Quebec, Ontario, and New York as well. The third cholera pandemic (1946-1960) deeply affected Russia, with over one-million deaths. Over 15,000 people died of cholera in Mecca in 1846 and during the two-years outbreak began in England and Wales in 1848, claimed 52,000 lives. In 1852, cholera spread to Indonesia, and later it was carried to Japan in 1854. The Philippines were infected in 1858 and Korea in 1859. Between 100,000 and 200,000 people were died of cholera in Tokyo during the outbreak in 1858–60. The fourth cholera pandemic (1863-1870) of the century began in the Ganges Delta of the Bengal region and traveled with Muslim pilgrims to Mecca. In its first year, the epidemic claimed 30,000 to 90,000 Mecca pilgrims and once it was spread to other continents, Italy lost 113,000 lives and North America lost about 50,000 men in 1870. The fifth cholera pandemic (1881-1896), cost 250,000 lives in Europe and at least 50,000 in the Americas. Further, thus cholera claimed 267,890 lives in Russia, 120,000 in Spain, 90,000 in Japan and over 60,000 in Persia.
The aforesaid alarming numbers shocked the world leaders and those who are in the medical sector. It was underlined that, all those pandemics were Cholera driven out-brakes. Thus, most of the countries rapidly developed their sanitation facilities, purified water supply facilities without letting another out-brake to hinder their nations. As a result, not only the infrastructure facilities of such countries, but also the legal sector too were advanced to match with their technological expansion to fight against these diseases.
In this backdrop, those who were living in houses built of warichchi and used to transport via bullock carts in Ceylon were lucky enough to get future-focused legislation, which was never been in the priority list of those fought for the Independence of Ceylon from the clutches of British Raj. Hence, it is not wrong to say that the Quarantine Law which operates up to present day is one of the progressive testaments of British imperialism left in this country.
Now the question is whether such an archaic law has any efficacy in the current context? Writer was, about 2-years ago, retained for a case at the Magistrate’s Court of Marawila for an offence alleged to be punishable under Quarantine and Prevention of Diseases Ordinance No. 03 of 1897. The charge was leveled against one well-known well-heeled erudite person in the area who holds double Doctorate. The exact charge leveled against was, the Client of the writer had violated section 2(II) of the Gazette Notification No. 9570 dated 21-06-1946 which was promulgated by the Minister of Health as per section 2 and 3 of the Quarantine and Prevention of Diseases Ordinance No. 03 of 1897, for letting water to accrue in a pipe line at the premises which is a Mosquito breeding place. (a copy of the charge sheet annexed here) The maximum punishment was about Rs. 1000/- and the Client of the writer just had to appear at courts for single day. Notwithstanding the easy way, that is – pleading guilty, pay the said Rs. 1000/- and go home, the said Client resorted the hard way. He is man with Principles!
The main point of law was, neither the aforesaid Gazette Notification No. 9570 nor does the section 2 and 3 nor does the Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 per se apply in the instance case due to following reasons:
- Prevention of Mosquito breeding places and other incidental offences thereto, are specifically dealt under Prevention of Mosquito Breeding Act No. 11 of 2007;
- Inasmuch as there is a special law for offences related Mosquito breeding places and other incidental offences thereto, Quarantine Law cannot supersede the former;
- The suspect has been charged under offence created by Gazette Notification whilst, presently, law has enough provisions to charge under statute law – that is under Prevention of Mosquito Breeding Act;
- Regulation is subordinate to a Statue and/or Act of Parliament;
- Universal things do not detract from specific things; this equals to Latin Maxim, “Generalia Specialibus Non Derogant”;
- In Queen Vs. Murugan Ramasamy 66 NLR 265, ABEYKOON AND ANOTHER Vs.
NATIONAL SAVINGS BANK 1999 3 SLR 144, Hendrick Appuhamy Vs. John Appuhamy 69 N L R 29, Mansoor and another Vs. OIC Avissawella Police and another 1991 (2) S L R 75, it has been decided that, when a special law compared and contested with a general law, the special law takes the priority;
- Hence, even if assume that the Suspect could be charged, that has to be done under Prevention of Mosquito Breeding Act; not under Quarantine Act;
- The word “Quarantine” has defined in Black’s Law Dictionary, viz, “The isolation of a person or animal afflicted with a communicable disease or the prevention of such a person or animal from coming into a particular area, the purpose being to prevent the spread of disease”;
- The preamble of the Quarantine and Prevention of Diseases Ordinance No. 03 of 1897, states that, “An Ordinance to make provision for relating the introduction into Sri Lanka of the plague and all ‘contagious or infectious diseases and for preventing the spread of such diseases in and outside Sri Lanka.” (emphasis added)
the preamble of the Prevention of Mosquito Breeding Act No. 11 of 2007, states that,
“WHEREAS dengue fever and dengue haemorrhagic fever has become a major public health problem in Sri Lanka, with the number of persons infected and dying of this disease increasing rapidly: AND WHEREAS there is at present no vaccine available to prevent this serious disease nor is there any specific treatment to cure the disease: AND WHEREAS the only method of preventing and controlling the spread of the disease is by destroying breeding places of the mosquito which spread the disease: AND WHEREAS it has become necessary to effectively deal with this health problem from a national perspective by the formulation of a National Policy and by the appointment of a Competent Authority and other officers to be responsible for the implementation of the National Policy: NOW THEREFORE BE it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows :—“
- Dengue Prevention or any other offence incidental thereto has nothing to do with (I) quarantine process since dengue is already well-established disease in Sri Lanka, (II) since Dengue, even at this moment, prevails in Sri Lanka, it does not come under “introduction into Sri Lanka of the plague” as per the preamble of Quarantine Act;
- Further, according to section 3 of Quarantine Act, it has clearly mentioned that, “…for placing aircraft, vessels and boats arriving at any port or place in Sri Lanka in quarantine, for the manner of disinfecting…” and rest of the sub-section too stipulates provisions for diseases which can arrive in to Sri Lanka from outside world; Hence, Dengue cannot come under Quarantine Act;
- As far back as 1897, unlike today, world was naïve on protecting Human Rights, individual liberty, privacy etc. Thus, some draconian laws which were used by the British Rulers by the name of Quarantine and Prevention of Diseases Ordinance No. 03 of 1897, to broke out to any household at any time and arrest or even kill anyone who does not comply with Quarantine laws, are tolerable. (do not forget, this was a period, men kept corpses and prayed for many supernatural Gods even after their loved ones died, some slept with such infected bodies, some even kept their corpses for weeks at their houses and resorted to some black magic.) Thus, no wonder, under Quarantine Ordinance, legislature intended to vest so much of power on military or other arms of the Government. Sri Lankans cannot forget that due to ill-health facilities and lack of awareness of individual hygiene how Malaria epidemic (which was also called “Kele Una”) ravaged the entire island, during 1934–1935, infecting an estimated five million people and causing approximately 80,000 deaths. Thus, those were the days that well-being of the greatest number is far more important than individual liberty. Whereas, today, section 13 of the Prevention of Mosquito Breeding Act No. 11 of 2007 has provided that if any Public Health Inspector (PHI) desires to enter into a household, he must notify the same to the house owner in advance and only if such permission is granted such PHI could enter into such premises. Failing to accommodate such inspection, the Medical Officer of Health (MOH) could report facts to the Magistrate and get an order to inspect the premises. In this premise, it was argued that, since, the Prosecution has not followed the Prevention of Mosquito Breeding Act No. 11 of 2007 and its provisions, the Suspect ought to be discharged;
Having considered the aforesaid points of law, the learned Magistrate of Marawila, Hon. Sirimewan Mahedrarajah, quite correctly held that,
’”..ඉහතකී පූර්විකාව අනුව ඉතා පැහැදිලිව පෙනී යන්නේ ශ්රී ලංකාවට අන්දාතින්ම ඇතුන්දා විය හැකි බෝවන සහ සංක්රමික වසංගත රෝගී තත්වයන් වළක්වා ගැනීම 1897 අංක 03 දරණ ආඥා පනතේ අරමුණ බවයි. එනම් ශ්රී ලංකාවට අන්දාතින්ම ඇතුන්දාවිය හැකි මහාමාරිය ඇතුන්දා බෝවන සහ සංක්රමික වසංගත රෝගී තත්වයන් වළක්වා ගැනීම බවටත් වැඩිදුරටත් දක්වා සිටී…
එබැවින් 1897 අංක 03 දරන නිරෝධායන හා රෝග ස්පර්ශකයන් වෙන් කර තැබීමේ හා රෝග වැළැක්වීෙමි ආඥා පනතෙහි විශය පථය ශ්රී ලංකාවට අලූතින්ම ඇතුන්දා විය හැකි මහාමාරිය ඇතුන්දා සියලූම බෝවන සහ සංක්රමික වසංගත රෝගී තත්වයන් සහ වළක්වා ගැනීම ඉලක්ක කර ගෙන ඇති අතර ඊට වෙනස් වන 2007 අංක 11 දරන මදුරුවන් බෝවීම වැළැක්වීමේ පනත මගින් ඉලක්ක කොට ඇත්තේ මදුරුවන් මගින් බෝවන රෝග ව්යාප්තිය වැළැක්වීම යන විශේෂිත කාරණාව සපුරා ගැනීමට හැකි බවයි…
ඉහත සියලූම කරුණු සලකා බලමි. පැමිණිල්ල විසින් චූදිතට එරෙහිව නගා ඇති චෝදනා පත්රයේ එනම්, 1897 අංක 03 දරන නිරෝධායන හා රෝග ස්පර්ශකයන් වෙන් කර තැබීමේ හා රෝග වැළැක්වීෙමි ආඥා පනත යටතේ සඳහන් චෝදනා මත චූදිතට එරෙහිව මෙම නඩුව පවරා පවත්වාගෙන යාමට නොහැකි බවට තීරණය කරමි. එබැවින් එකී චෝදනා වලින් චූදිත මුදාහැරීමට නියම කරමි.
ආර්. එස්. එම්. මහේන්ද්රරාජා
(“…according to the aforesaid Preamble it is clear that the intention of the Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 was to prevent the infectious diseases such as bubonic plague and other immigrant diseases which could newly enter into Sri Lanka…
Thus, the ambit of Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 limited to infectious diseases such as bubonic plague and other immigrant diseases whereas, the specific intention of brining Prevention of Mosquito Breeding Act No. 11 of 2007 to prevent disease caused by Mosquitoes…
Having considered all, it is decided that the charges framed by the Prosecution cannot be maintained under the Quarantine and Prevention of Diseases Ordinance No. 03 of 1897, against the Suspect. Hence, the Suspect is discharged.
Hon. R. S. M. Mahendrarajah,
Magistrate of Marawila,
(read this order here)
Writer made to penned down the aforesaid case law to give a glimpse of an idea on how law imposing authorities of Sri Lanka could use the proper law at this crunch hour without playing havoc at the Courts as it was reflected in the above said incident.
By owing to British who ruled the country, from early as 1897, we have been gifted with comprehensive legal regime to deal with any sort of Plague which comes to the country which was never before on this land. Section 3 of the Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 Act has provisions from making arrangements to disinfecting people and to imposing and prescribing the method of recovery of any charges, which may being incurred by Government in carrying out such operations. This section has to be highlighted as there were faction of incoming Sri Lankans who came from Italy had found fault on the Government on imposing sum of Rs. 7500/- merely for covering of food expenses, for 14-days. In terms of Quarantine Act, this is total legal. Government further can establish and maintain quarantine stations. Nevertheless, it is sad that the current Government could not peruse with their arrangements to send off the first group of immigrants to one time Leprosy Hospital at Hendala having law in their favour. Besides, state could inspect aircraft, vessels and boats leaving or arriving at any port or place in Sri Lanka, irrespective of their nationality, and Government also have the power to isolate all cases of disease and diseased persons, if this plague goes uncontrollable, authorities could even, prescribe the mode of burial or cremation of any person dying of disease. A fortiori, if the Minister opines that further regulations should be taken incidental to preventing of this infectious disease, he could further specify new regulations to overcome new challenges. For instance, setting a maximum price for face masks, allowed maximum number of persons at a public gathering, taking legal actions against those who try to create shadow economy or clandestine market for their personal mileage at such a plague time, etc.
However, it is shame that if the state do not utilize the Quarantine Ordinance in its true nature against whoever tries to sabotage their mode of operandi to fight against Covid-19. It was seen in the news that, those who come from most affected countries, such as South Korea, Iran and Italy, have refused to comply with the regulations imposed by the Government. Without prejudice to their rights, it must be noted that such bandits must put to Criminal Courts and be rigid on law.
Having said the grave danger of contracting such disease into a country and consequence which could bring about afterwards, the implementation of law must be very stringent. Under Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 Act, those who contravene with the said regulations can be charged under section 4 and, following punishments can also be imposed under section 5:
“Offence: 4. (1) If any person, without lawful Offences. authority or excuse (proof whereof shall lie on him), contravenes any regulation made under this Ordinance, or does or omits to do anything which under the provisions of this Ordinance or of any regulations made thereunder he ought not to do or omit, or if he obstructs or impedes or assists in obstructing or impeding any inspector or other officer appointed under this Ordinance, or any police officer in the execution of any provision of this Ordinance or of any regulation made thereunder, he shall be guilty of an offence against this Ordinance.
(2) Every prosecution for an offence against this Ordinance may be instituted in the Magistrate’s Court* of the division in which the offence was committed, and such court may impose the full penalties here in prescribed, anything in the Code of Criminal Procedure Act or in any other enactment to the contrary notwithstanding.
Punishment: 5. (1) If any person is guilty of an offence against this Ordinance, he shall be liable on conviction before a Magistrate to imprisonment of either description for a term not exceeding six months or to a fine not exceeding one thousand rupees, or to both.
(2) Nothing in this section contained shall affect the liability of any person to any punishment or penalty to which he is liable under any enactment other than this Ordinance, but so that a person shall not be punished twice for the same offence…”
Besides, section 262, 263 and 264 of the Penal Code could also be used and Police could report the facts to the Magistrate under section 136 of the Criminal Procedure Code, if any party knowingly or maliciously causes to spread any deadly infectious disease with his or her negligent actions, and/or any party acts contrary to any regulation imposed under Quarantine and Prevention of Diseases Ordinance No. 03 of 1897.
Finally, let the writer finish with this: It was recounted that during the Black Death, the entire Europe got contacted the deadly disease after some sailing ships arrived in to Port Messina in Italy. It is said that the plague arrived in Europe in October 1347, when 12 ships from the Black Sea docked at the Sicilian port of Messina. People gathered on the docks were met with a horrifying surprise. Most sailors aboard the ships were dead, and those still alive were gravely ill and covered in black boils that oozed blood and pus. Sicilian authorities hastily ordered the fleet “death ships” out of the harbor, but it was too late: Over the next five years, the Black Death killed more than 20 million people in Europe – almost one-third of the continent’s population.
Thus, let’s act together not to let this Plague go to history!