Never in modern history
SEARCH FOR TRUTH - Ernesto P. Maceda Jr. (The Philippine Star) - March 7, 2020 - 12:00am

In the City of Costa Mesa, California, a hotly anticipated showdown was avoided when the Federal Department of Health and Human Services (DOHHS) decided against using the State owned Fairview Developmental Center (FDC) as quarantine site. It was to  house California Residents returning from the Diamond Princesscruise liner from Yokohama. Costa Mesa City, where the FDC is located, protested and filed an injunction in Federal District Court (the Regional Trial Courts of their Federal Judiciary). 

The City of San Antonio in Texas, already with quarantined residents from the Diamond Princess, also went to Court with an injunction. In their case, rather than block the quarantine, they wanted to extend it. The intent was to prevent the early release of suspected COVID-19 patients. This after one was mistakenly and temporarily let go by the U.S. Center for Disease Control.

These federal vs. local and federal vs. state stand-offs underscore the innate difficulty of responding to unfamiliar public health threats. 1stworld or 3rdworld, contingency measures and their implementation scorecards will vary.

Valuable lessons. Comparisons afford us a comparative peek into the dynamics of National vs. Local relations everywhere: the relative strengths, empathy levels and legal/public administration issues that may inform our own experience as the threat of COVID-19 gets more real. Just yesterday, we had two more confirmed cases here at home. 

The scale and speed of this crisis has blindsided us. “We’ve never seen anything on this level in modern history,” says Professor Lawrence Gostin of Georgetown University Law, specialist in Public Health.

Quarantine. From the venetian Quaranta giornos, quarantine references the practice in the middle ages of isolating ships for 40 days before passengers disembarked. This was not a faith based period prescription (40 days figures frequently in the Bible: fasting/temptation in the desert; period from resurrection to ascension; time spent on Sinai before coming down with the tablets; days of rain that caused the great flood of the Ark, etc.). The 40 day timeline was grounded on science as a protection against the Plague’s 37 day cycle from infection to death.

Quarantines are abrupt limitations on freedom of movement. Polly Price, Emory University Professor of Law and Global Health calls it “the most extreme use of government power over people who have committed no crime”.

At home, communities are forced to take one for the team. Capas municipal officials initially articulated their residents’ fear when New Clark City was selected as quarantine site. They were threatened with sanctions by the Department of Interior and Local Government. In public health emergency situations, the National Government must be given the centralized authority to manage and control the response. And the Response cannot be hostage to patchwork policies. Autonomy, decentralization, federalism do not have a place alongside the discussion of the complex conditions that underlie rapid transmission of disease which respects no borders. Uniformity is critical.

Liberty vs. Common Good. When quarantine is medically justified, the deference to individual well being must yield to the protection of public health. The leading U.S. case on police power for enforcement of disease control, Jacobson v. Massachusetts, rationalized it “upon the principle of self-defense, of paramount necessity.” These are real dilemmas. The right of the individual vs the right of society; right of community vs the larger community. Our constitutional structure tolerates these restrictions of liberties in times of public-health emergency. Its the classic social compact theory analysis. But, always, means must be reasonable and methods proportionate.

R.A. 9271, the Quarantine Act of 2004, allows apprehension; detention/isolation or surveillance of suspect cases; surveillance of those who have been exposed; and the declaring“under quarantine” the area/community where the public health emergency occurs. The Secretary of Health is authorized to mobilize other government agencies for the purpose of preventing the introduction, transmission and spread of public health emergencies of international concern. 

This is the problem of Capas and, before it, Nueva Ecija, and of places like Costa Mesa, California. They were perfectly healthy communities obliged to host public health wards. They were not, themselves, the areas/communities producing the public health emergency. 

But in the Philippines, this is always a justification. Is this not the home of Quezon who mirrored our best selves to the world in welcoming Jewish refugees back in the day when no other country would? Home to Rodrigo R. Duterte who would open our doors to the stateless Rohingya refugees. How do we allow this sublime record of empathy and humanity to be shattered by such conduct and displayed against our own countrymen, at that?

Review. Quarantine may be applied to individuals in two scenarios. First, to anyone entering the country, i.e. border quarantine authority where government authority is broader. The second is the internal quarantine power. Once travelers have entered our borders, the power to apprehend, detain, surveil, though given, must be exercised with attendant due process. 

A recent illustration of the struggles of implementation was the experience of Cebu. Provincial Governor Gwen Garcia, in the early days of the outbreak, made sure that her province was ready with its quarantine responsibilities. She would even issue the necessary Executive Orders for the 14-day quarantine of travelers from covered areas. In implementing the quarantine against Taiwan arrivals, provincial authorities had a difficult time securing cooperation. And, once quarantined, the facilities proved to be problematic. Governor Garcia, though, regularly issues the necessary legal bases for her actions, specially when she feels that guidance from the national government is wanting. 

But kudos to the administration. Congress and the President’s Health Department has been very pro-active. Even in 2018, the DOH hosted external experts for an evaluation of capabilities. What we are doing now is informed by previous practice and preparation. R.A. 11332 on reporting of events of public health concern was enacted in 2019, admittedly in response to the memory of SARS and the more urgent compulsion of reemerging diseases like measles and polio. Because of these moves, we should be better prepared.

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