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Saturday, December 5, 2020

Sri Lanka: Inaction on regularizing quarantine regulations is illegal and arbitrary; Court case files for writ of mandamus ( Full text)

Image courtesy of Al jazeera/[Eranga Jayawardena/AP]

Filing an application for mandates in the nature of Writ of Certiorari and/or Prohibition and/or Mandamus Under and in terms of Article 140 of the Constitution of the
Democratic Socialist Republic of Sri Lanka five leading civil society activists say that though many measures are taken by the Minister of Health to control the Corona Pandemic, without the quarantine regulations, the measures are not valid in terms of Law. They further state that such inaction is illegal and arbitrary. In their petition, they have challenged the conduct of the media as well as the way the quarantine process is implemented. The petition was filed in the second week of October 2020.

The petition has been filed by HRDs Sandun Thudugala, Singakkarage Sajeewa Chamikara, Wijethunga Appuhamilage Herman Kumara, Rajapakse Mudiyanselage Chintaka Pradeep, Rajapakse, Dandeniya Gamage Ashila Niroshini against  Hon. Pawithra Devi Wanniarachchi, Minister of Health, Nutrition and Indigenous Medicine, 2) Ms. Gangani Liyanage,Government Printer, 3) Hon. Attorney General.

12) The petitioners state that
a. In terms of Section 02 and 03 of the Quarantine and prevention of diseases Act No 03 of 1897, the minister (1st Respondent) has to make regulations as provided in section 3 of the said act.
b. The said powers are not restricted to the items given in Section 03 of the Quarantine and prevention of diseases Act No 03 of 1897, but it comes within the General powers of the 1st Respondents.
c. In terms of the Section 04 of the said Act, whoever violates the said regulations would be charged under the Quarantine and prevention of diseases Act No 03 of 1897, in the primary Courts.
d. To facilitate to make regulations in terms of health services act section 3 specified that there must be a person or person act as the director of health services in terms of health services act.
e. In terms of section 4 of health services act, there shall be a health counsel consisted of director, three deputy directors not more than seven medical practitioners shall recommend and advice minister on matters referred to the council.

13) To minimize the impact of the COVID 19, there are several recommended guidelines issued by the 1st Respondent including,
a. Wear a face mask
b. Maintain social distance
c. Working from home instead of at the office
d. Closing schools or switching to online classes
e. Visiting loved ones by electronic devices instead of in person
f. Cancelling or postponing conferences and large meetings
14) The petitioners further inform to Your Lordships Court though the said COVID 19 published as a quarantinable deceased, no regulations have been published by the Minister of Health in terms of Section 12 of the Act.

15) Further, the petitioners respectfully submit to Your Lordships Court that, to minimize the impact of the COVID 19, many solutions are recommended, no regulations are been made by the respondents to regulate the relevant procedure.

16) The petitioners respectfully submit to Your Lordships Court that without the said regulations;
a. People are not mandatory to wear a mask and most of the people wear the mask improper way.
b. People are not mandatory to maintain the required social distances.
c. People are not obeying the given guidelines.
d. There is no way to punish those who have violated the guidelines.

17) The petitioner states that
a. Without the quarantine regulations, no effective and efficient mechanism can be established to control the COVID 19.
b. Without proper Quarantine Regulations, no proper way to punish these who violates the directions given by the government.
c. Without the proper Quarantine regulations, no proper way to adopt the uniformity of the quarantine mechanism.
d. Without the proper quarantine law, the wrong does cannot be punished, in terms of law.

18) Further the petitioners inform to Your Lordships Court that once the government located a close contact of the COVID 19 patient,
a. the authorities are not given a fair time to arrange their belongings.
b. The close contacts were taken, without giving at least one-hour notice.
c. Sometimes, the children are taken without proper custody or care.
d. The media giving unnecessary, publications which gives unnecessary publications to the area, to the person due to the cause of the decease.

19) The petitioners further submit to Your Lordships Court that the conduct of the media is unsatisfactory due to the following reasons.
a. The media has given unnecessary weight and attention on the 1st patient recently discovered from the Garment Factory. But however, she is not the 1st patient from the factory.
b. The media has given unnecessary weight and attentions to her daughter so that her school and the surrounding people were unnecessarily affected by the conduct of the Society.
c. The media has given unnecessary weight and attraction to the university student and several media statements were published.
d. The media has given unnecessary weight and attraction to the close relatives of the 1st Patient recently recovered from the garment factory and their close contacts.
e. The media has given unnecessary attraction and weight to the relatives, victims and its family members and sometimes labeled them as the vector.

20) Thus, the petitioners respectfully submit that A mandamus lies on the circumstances of this case lies on the minister to make regulations and gazette it and to appoint a director or acting director of health and a health council in terms of said acts read along with article 12/1 of the constitution.

21) Further the petitioners respectfully state that until to date no director of health or health council is appointed.

22) The petitioners’ further state that though many measures are taken by the 1st Respondent to control the Corona Pandemic, without the quarantine regulations, the measures are not valid in terms of Law.

23) Further the petitioners respectfully submit to Your Lordships Court that the above said inaction is illegal and arbitrary, the said inaction is challenged by this application of writ on the following grounds amongst the grounds that may be urged by counsel at the hearing of this application.

The full text of the petition: Petition for Writ of Certiorari and or Prohibition and or Mandamus re covid regulations – Final

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