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Article 38 – The Public Health Ordinance Chapter 12 No. 4 of 1940

Martin George & Company > DAILY LEGAL LESSONS  > Article 38 – The Public Health Ordinance Chapter 12 No. 4 of 1940

Article 38 – The Public Health Ordinance Chapter 12 No. 4 of 1940

The Public Health Ordinance Chapter 12 No. 4 of 1940

Jonathan A. Stevenson

       Attorney-at-Law

       Martin Anthony George & Co.

       Attorneys-at-Law

MAGCO DAILY LEGAL LESSONS

DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.

COVID-19 has presented significant challenges to the world. Not only is it affecting us physically, but it is having tremendous effects on our economies. In response to this worldwide pandemic, the Government of Trinidad and Tobago has implemented Regulations pursuant to the Public Health Ordinance Chapter 12 No. 4 of 1940 (hereinafter referred to as “the Ordinance”) to slow down and stop the spread of COVID-19 in Trinidad and Tobago.

The Ordinance is protected by The Constitution of Trinidad and Tobago and is a saved law (CA S-246 of 2020 Dominic Suraj and Ors. v. The Attorney General; CA S-248 of 2020 Satyanand Maharaj v. The Attorney General [9]). This means that its validity is protected until Parliament decides to change it (Matthew v. Attorney General [2005] 1 A.C. 433). It is also guarded against declarations of unconstitutionality from the Court (Dominic Suraj; Satyanand Maharaj, supra [64]).

However, an issue that has arisen is whether the Ordinance permits police officers and public health officials and personnel to enter private property.

As a preliminary point, COVID-19 was proclaimed to be an infectious disease pursuant to s.103 of the Ordinance, which provides as follows:

“The Governor may, by proclamation, declare any disease (in addition to the diseases specifically mentioned in section 2 of this Ordinance) to be an infectious disease or a dangerous infectious disease within the meaning of this Ordinance, and so long as the proclamation remains unrevoked the disease specified therein shall be deemed to be an infectious disease or a dangerous infectious disease, as the case may be.”

The above-mentioned Proclamation was made by the President of Trinidad and Tobago, Her Excellency Paula-Mae Weekes, via Legal Notice No. 34, Legal Supplement Part B-Vol. 59, No. 11 dated 31st January 2020 which states inter alia as follows:

“Now, therefore, I, Paula-Mae Weekes, President as aforesaid, do hereby declare the 2019 Novel Coronavirus (2019-nCoV) to be a dangerous infectious disease.

The power of entry into premises by Health Officers is contained in s.110 of the Ordinance, as follows:

“(1) The Medical Officer of Health or a medical practitioner authorised by the local authority may at any time enter and inspect premises in the district in which he has reason to believe that any infectious disease exists, or has recently existed, and may examine any person found on such premises with a view to ascertaining whether such person is suffering or has recently suffered, from any infectious disease, and may also examine any dead body found on such premises and in the event of admission, inspection, or examination being refused, the Magistrate of the district may grant a warrant authorising such entry, inspection and examination, and, on such warrant being exhibited, any person refusing to admit such Medical Officer of Health or medical practitioner to such premises, or obstructing him in making the inspection of examination aforesaid, shall be liable to a fine of one hundred dollars for every such offence.”

It should be noted that according to s.2 of the Ordinance, premises include public and private property.

The following observations can be made of s.110 of the Ordinance:

  1. The Medical Officer of Health or a medical practitioner may enter premises on which they believe exists a case of COVID-19, for the inspection of the said premises or the examination of the people and dead bodies thereon;
  2. Before entering the premises, the Medical Officer of Health or the medical practitioner must obtain permission from the owner of the premises to enter the same; and
  3. If the owner of the premises denies admission, the Medical Officer of Health or the medical practitioner may apply for a warrant from the Magistrate of the district at which the premises is located.

Section 133 of the Ordinance pertains to the general power of entrance and carrying on of work, according to its marginal note, and it states as follows:

“For the purposes of this Part of this Ordinance, any person authorised to act under the provisions hereof or of any regulations made in pursuance of any authority contained in this Part of this Ordinance may at any time, with or without assistance—

(a) enter on lands and buildings and inspect and examine the same and all things thereon or therein;

(b) do on any land or in any building any sanitary or other work authorised or directed;

(c) generally do, with respect to persons, places, land, buildings, animals, or things, whatever is necessary or expedient in order to carry out the foregoing provisions of this Part of this Ordinance or any direction or requirement given or arising thereunder.”

Based on this section, persons who are authorised by the Ordinance or by Regulations made by the Central Board of Health, can enter property for inspection, examination, and sanitisation thereon. The marginal note of the section supports this.

While the Ordinance does not specifically provide for the entrance of police officers to private property, issues have arisen as to the legality of police officers entering the same. In such instances, the Trial Judge in CV 2020-013708 Dominic Suraj and Ors. v. The Attorney General; CV 2020-02223 Satyanand Maharaj v. The Attorney General recommended that persons who have alleged that their rights have been infringed by the enforcement of the Regulations have options to defend themselves on criminal charges and to bring appropriate civil claims for relief:

“[101] The crux of the claimants’ case in the Dominic Suraj matter is the charge for gathering. Other deponents complained about the police, acting purportedly under the Regulations, unlawfully seeking to enforce a curfew. One deponent complained about not being allowed to operate his restaurant and bar and thereby being denied his right to earn his livelihood. Another complained about the inability to provide his services as a driver. One complained about the police entering a private residence and breaking up a celebration. Another deponent said he was operating an essential service but yet was arrested by the police and subsequently released.

[102] These instances do allege some confusion among police officers, overreach, and even abuse, in terms of how the Regulations are being enforced. But those matters go to the manner of the enforcement of the Regulations for which the individuals affected have their rights in law to challenge the police conduct. They have all options to defend themselves on criminal charges and to bring appropriate civil claims for relief. Breaches of the types complained of go to how the Regulations are enforced, not whether the Regulations are impermissible. Nothing prevents them from challenging the conduct of the police.

So in summary -:

  1. The Public Health Ordinance and the Covid -19 regulations made thereunder, have been deemed by the High Court to be Lawful amd Constitutional and this has been affirmed by the Court of Appeal.
  2. Under the Public Health Ordinance and the Covid -19 regulations made thereunder, Public Health Officials may, under certain conditions have the power to enter private residences.
  3. There is no express or implied power to the Police, under the Public Health Ordinance and the Covid -19 regulations made thereunder, to authorize the Police to enter private residences.
  4. The general powers of the Police, remains available, to intervene to stop the commission of a crime or to intervene to apprehend someone who is in the act of committing an offence. As to how the exercise of such a power can be justified for entry onto Private premises, it depends on the circumstances and factors and exigencies of each case and it becomes even more ambiguous and nebulous when it comes to the issue of purportedly seeking to enforce the Covid-19 Health Regulations on the private premises of citizens.
  5. Notwithstanding what the Law states or doesn’t state, the reality is that the Law can never Legislate for everything and/or for all forms of Human behaviour. So it imperative for us all to seek to observe the spirit and intendment of the Legislation so as to make it most effective and beneficial for the Nation.

© MARTIN ANTHONY GEORGE & CO.

MAGCO DAILY LEGAL LESSONS

The Public Health Ordinance Chapter 12 No. 4 of 1940

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