The Superintendent of Public Health has the necessary vires to make, vary or revoke orders. These orders come in the form of a Legal Notice which is duly published in the government gazette. The Legal Notice comes into effect upon its publishing in the government gazette, unless there is a specific date or period of time within which or when the Legal Notice shall begin to have effect. These legal instruments are a form of subsidiary legislation.
The Public Health Act (Chapter 465 of the Laws of Malta) derogates the power of issuing a legal notice to the Superintendent of Public Health (Prof. Charmaine Gauci).
Article 27(c) of the Public Health Act, grants the Superintendent of Public Health the vires to prescribe measures to guard against or to control dangerous epidemics or infectious disease. Article 27(c) is quoted hereunder;
“27.The Superintendent may make, vary or revoke orders:
(c) prescribing measures to guard against or to controldangerous epidemics or infectious disease and inparticular:
(i) regulating the prompt internment of the dead;
(ii) regulating the power to inspect premises;
(iii) regulating the provision of medical aid, thedistribution of medicine, the establishment ofhospitals, the promotion of cleansing,ventilation and disinfection and otherwise forguarding against the spread of disease and forthe treatment of persons suffering therefrom;
(iv) regulating occupancy in premises or any partsthereof to prevent them from being so overcrowded as to be dangerous to health;
(v) prescribing such other matter as theSuperintendent may deem expedient for theprevention or mitigation of such disease;”
The First Legal Notice published by the government in light of the COVID-19 Outbreak is L.N. 39 of 2020. This notice adopts quarantine regulations passed by the Minister responsible for Public Health after consulting the Superintendent of Public Health. This notice establishes that any period of quarantine (as per Article 29(1) of the Public Health Act) imposed by the Superintendent shall be strictly adhered to. Furthermore, this notice also states that a 1,000 euro penalty shall be imposed for each infringement of the quarantine regulations.
Legal Notice 40 of 2020 supplements the pervious L.N. 39 of 2020 as it states that persons (together with persons who live in the same residence) who have travelled to any one of the countries listed in (3) of the notice, shall have the legal obligation to submit themselves to a quarantine period of 14 days. This notice lists the following countries;
(f) China, including Hong Kong
(j) South Korea:”
L.N. 44 of 2020 regards the enforcement of the quarantine regulations which were adopted by virtue of L.N 39 and L.N. 40 of 2020. This legal notice was not made by the Minister responsible for public health nor the Superintendent for public Health. L.N. 44 was made by the Minister responsible for justice in exercise of the powers conferred to him by article 13(b) and (i) of the Commissioners for Justice Act (Chapter 291 of the Laws of Malta).
This L.N regards the notice the police officer must give to the person who is found to be in breach of the imposed quarantine regulations. The notice shall contain the following;
- the nature of the offence;
(ii) the place, time and date of the offence;
(iii) the signature of the Police officer handingover or affixing the notice; and
(iv) information as to payment of the penalty.
This notice shall be either handed to the offender or affixed in some conspicuous place at the address of the offender. The penalty stipulated in the notice may be paid by the offender 15 days after the expiration of his period of quarantine as provided in (2). If the penalty is not paid, proceedings against the offender shall be instituted before a Commissioner of Justice in respect of the offence in question as provided for in Article 2(3) of L.N. 44. Any breach of the provisions of the Quarantine Regulations, shall be regarded as a scheduled offence for the purposes of the Commissioners for Justice Act (Cap 291).
The next Legal Notice is L.N. 63 of 2020, which also relates to a period of quarantine. By virtue of this notice, persons who arrive in the Maltese jurisdiction from a foreign jurisdiction, have to submit themselves to a 14 day period of quarantine. Obviously this will be a deterrent for incoming tourists due to the fact that no one person wants to go on a vacation to a foreign country just so they can stay inside for 14 days. This order shall also apply to persons who live in the same residence as the person who has to submit himself to quarantine. There is some ambiguity with this legal notice as it does not clarify whether persons in a hostel for example, have to also quarantine just because of one person having arrived in Malta and having to submit himself to this period of quarantine.
To amend the ‘Enforcement of Directions relating to Quarantine’, regulation the Minister responsible for public health, after consulting the Superintendent of Public Health, amended the 4th regulation of the principal regulation. By virtue of this amendment, the penalty for the breach of the adopted quarantine regulations was increased to 3,000 euros from the previous 1,000 euros. This applies for every occasion that the quarantine period is breached.
In furtherance of the ‘Period of Quarantine’ regulation, the Superintendent of Public Health instituted a 14 day period of quarantine applicable to persons who come into contact with a person diagnosed as suffering from COVID-19. This regulation is enshrined in Legal Notice 78 of 2020. One must submit himself to this period of quarantine (in the aforementioned scenario), upon receiving an oral or a written order from the Superintendent of Public Health (Who also has the absolute discretion to suspend the provisions of this order or provide for the adoption of other conditions).
Furthermore, L.N 78 of 2020 also envisages that if a person subject to a period of quarantine under this regulation is in need of a service which requires the entry into the premises where quarantine is being effected, he shall inform the person granting such a service that he is subject to quarantine. This provision applies to services that emerge from both the Public and the Private sector.
Indirectly linked to the Quarantine regulations discussed above are the newly adopted regulations regarding ‘Self-isolation of Diagnosed Person’. L.N. 98 and 99 of 2020 regulate the aforementioned topic. To truly understand these regulations, one has to first read L.N 99 of 2020 and then read L.N 98 of 2020.
L.N. 99 of 2020 (Self-Isolation if Diagnosed Persons Order, 2020) came into force on the 23rd of March 2020. By virtue of the powers conferred to the Superintendent of Public Health by L.N. 99 of 2020, the Superintendent may order (In a written or oral manner), any person diagnosed with COVID-19 to submit himself to self-isolation and remain in self-isolation until the Superintendent revokes such order. This written or verbal order shall also apply to persons who live in the same residence as the diagnosed person as per 2(2) of the legal notice.
The enforcement of L.N. 99 is dealt with in L.N. 98 of 2020. In this legal notice one finds that it is explicitly stated that L.N. 99 is to be strictly adhered to by the persons subject to it (i.e. persons diagnosed with the COVID-19 infectious disease). Furthermore Article 5 of L.N. 98 of 2020 establishes an offence, together with the penalty applicable for the breach of such offence. If a person breaches the provisions of L.N. 99, he shall, on conviction, be liable to the payment of a penalty of 10,000 Euros. This penalty shall be imposed for each and every occasion for which that person has breached L.N. 99 of 2020.
The 2 aforementioned regulations have taken the written format of the previously discussed quarantine regulations. They establish an order in one legal notice and an offender, together with its penalty, in a separate legal notice. What these 2 recent regulations have not addressed, is who is to impose the penalty for the breach of the provisions relating to self-isolation. In the Quarantine regulations, it was stipulated that the ‘Malta Police Force’ was to regulate persons in Quarantine, however this is not expressly stated in the self-isolation regulations.
It is also good to take note of the increase in the penalty imposed on persons who breach L.N. 98 and L.N. 99 of 2020. In the quarantine regulations a penalty of 3000 Euros for each and every breach was imposed. However, in the self-isolation of diagnosed persons order, a penalty of 10,000 Euros for each and every breach is imposed. The reasoning behind this increase is quite simple. In the quarantine regulations, persons subject to quarantine were not necessarily afflicted with the COVID-19 infectious disease. On the other hand, in the self-isolation of diagnosed persons regulations, a person is afflicted and diagnosed with the COVID-19 infectious disease. Thus, if he breaches the self-isolation regulations, he would be posing a higher threat to society.