Are current methods of enforcing anti-pandemic rules, legal?

The answer is, mostly, ‘No’.

 What we see happening

Since the implementation of the Movement Control Order (‘MCO’) beginning March 18, enforcement agencies have been increasingly confronted by those who breach it.

There are those who have strayed beyond the perimeters of their homes, those playing cards under the trees, some men who went out to fish for lunch, the poor and destitute who had been arrested while working on daily-paid jobs, refugees, drunkards, the obstinate and the perverse – some, but not all, are ignorant of the nature, speed and destructive force of the Covid-19 virus.

The Government has charged some.

A few have pleaded guilty on the spot.

Some have been imposed with hefty fines, while several have claimed trial.

Those who were unable to pay their bail have been remanded.

The two fishermen are sitting in prison.

There are those who have been charged under the Penal Code for obstructing officers in the performance of their lawful duties.

Then there are those who are charged under Regulation 7 of the 2020 Regulations.1 It is subordinate legislation that falls under the Prevention and Control of Infectious Diseases Act 1988 (‘PCIDA’). Its full title is ‘Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020’.

Is all this legal?

[1].  The nature of the Covid-19 virus

Does every single adult comprehend the seriousness of the coronavirus attack?

Let us look at the established facts:

The coronavirus has several qualities:

(1).  It is terribly contagious.

(2).  The contagion spreads unbelievably fast.

(3).  People may not even know they are carrying the contagion.

(4).  It is difficult to discover any outward sign of the contagion because it so strongly mimics the common influenza.

(5). In the very young and very old, and those who suffer from other illnesses (called ‘co-morbidity’), its results are nothing less than fatal.

[2]  What experts say

Medical experts are agreed that it takes between five to 12 days for symptoms to appear.

To prevent further contagion, the only solutions are social distancing and self-isolation.

[3].  How is that medical aim to be effected under the law?

The PCIDA Act deals with it quite effectively.

Any person who obstructs, or disobeys an authorised officer, or refuses to furnish any information to prevent spread of the contagion is guilty of an offence.2section 22, PCIDA

The general penalty – and the Act is careful to say, ‘if no specific penalties provided’ – is imprisonment for a maximum period of two years or a fine.3Section 24, PCIDA

The Act does not specify how much fine is to be imposed for the first offence.

But for a subsequent offence the imprisonment is for a maximum period of five years, and again to a fine.

Again, the quantum of fine is not quantified.  But that section explains that for a ‘continuing offence’ every day a person continues in the offence, he may be fined RM200 per day.

The presumption therefore is, any fine that is contemplated for the first and second offences may not really be, in quantum, far greater than the sum of RM200.00.

[4]. Then we come to Regulations 7(of No.1) and 11(of No.2) of the 2020 Regulations

Regulation 7 was brought into effect on March 18.4 Regulation 7(1): ‘Any person who contravenes any provision of these Regulations commits an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.’ Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020. Regulation 11, on April 01, 2020.

It makes a person who is convicted of breaching the Regulations, liable for imprisonment for a maximum of six months; or a maximum fine RM1,000.00.

This is for breaching any provisions under the 2020 Regulations.

[5].  What acts do the Regulations criminalise? 

The offences relating to a breach of regulations seek to enforce social distancing and quarantines.

A refusal to give information upon request is also an offence.5See Regulations 3 to 6 of the 2020 Regulations

[6].  Are Regulations 7(of No.1) and 11(of No.2) of the 2020 Regulations, void?

There is a problem in the way these Regulations impose punishments.

They both say almost the same thing: they impose a maximum jail sentence of 6 months and a maximum fine of RM1,000.00.6 It states: ‘Offence : 7(1) Any person who contravenes any provision of these Regulations commits an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.’ Similar words exist in Reg (No.2) of 2020 Regulations

The 2020 Regulations are subsidiary legislation.  They are subservient to the PCIDA.

If a subsidiary legislation is contrary to the parent Act under which it is made, it is, to that extent, void.7 Section 23 of the Interpretation Acts 1948 And 1967, states: ‘Avoidance of subsidiary legislation in case of inconsistency with – 23(1): Any subsidiary legislation that is inconsistent with an Act (including the Act under which the subsidiary legislation was made) shall be void to the extent of the inconsistency.’ Further subsection (1A) states: ‘For the purposes of subsection (1), any subsidiary legislation made under an Act is not inconsistent with that Act or any other Act merely by reason of the absence in the Act under which it is made of any provision relating to the commencement, application, operation, interpretation or construction of the subsidiary legislation or to any other matter in connection with such subsidiary legislation if provisions relating to the commencement, application, operation, interpretation or construction of, or other matter in connection with, subsidiary legislation generally are contained in this Act.’ And subsection (2) states: ‘In this section “Act” includes a federal law styling itself an Ordinance or Enactment.

What has that got to do with Regulations 7 (No.1) and 11 (No.2)?

Section 24 is the main ‘punishment’ provision under the parent Act, PCIDA.

It does not give the power to any regulation to impose a fine of RM1,000.00 – and yet Regulation 7 does impose RM1,000.00 as a maximum fine.

It has an important qualifier: the PCIDA – the main Act – says that if it does not prescribe any punishment, then it provides a ‘general penalty’.

It ‘prescribes’ a ‘punishment’ for ‘an offence under this Act for which no specific penalty is provided for’.8Under the title, ‘General penalty’, Section 24 states: ‘(24). Any person guilty of an offence under this Act for which no specific penalty is provided shall be liable on conviction – (a) – in respect of a first offence, to imprisonment for a term not exceeding two years or to fine or to both;(b) in respect of a second or subsequent offence, to imprisonment not exceeding five years or to fine or to both;  (c) in respect of a continuing offence, to a further fine not exceeding two hundred ringgit for every day during which such offence continues’.

[7].  What is that ‘general penalty’ under the Act?

Section 24 says that if a person is convicted ‘for the first offence’, the punishment is imprisonment for a maximum of ‘two years or a fine or to both’.9Ibid

[8].  The Main Act does not specify any sum for a fine

You will note that although the Act provides a fine, it cites no quantum of fine.

Second, the main Act does not authorise – at all – any fine of RM1,000.00.

[9].  Even continuing offenders, if fined, can only be fined RM200 per day

The main Act says nothing about the quantum for the first or second offences.

Under the PCIDA, even if – after the second offence – subsequent offences are committed, and are ‘continuing’, section 24, at worst, imposes not only an increased term of imprisonment10a maximum of five years but when it comes to fines, it imposes only RM200.00 per day.11Section 24(c): ‘…  in respect of a continuing offence, to a further fine not exceeding two hundred ringgit for every day during which such offence continues’.

[10].  Regulations 7(of No.1) and 11(of No.2) of the 2020 Regulations are dead in the water, I think

If a fine is not specified in the main Act, PCIDA, how is it possible for subsidiary legislations, like Regulations 7 (No.1) and 11(No.2), to impose a penalty far higher than the main Act?

Therefore, both these regulations, and their prosecutions, cannot survive.

They are both dead in the water:(section 23 of the Interpretation Act 1948 and 1967).

At least that is what I think.

[11].  We now come to the second problem – charging MCO offenders with non-PCIDA offences

Because the police wish to emphasise the seriousness of the pandemic, they have taken to charging MCO offenders with other, non-PCIDA offences: e.g. the offence of ‘obstructing a public servant in the discharge of his public functions.’12A ‘Public Servant’ includes police officers and members of the armed forces: Section 21 of the Penal Code

That is a Penal Code Offence.13Section 186 of the Penal Code states:’ 186: Obstructing public servant in discharge of his public functions; ‘Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to ten thousand ringgit or with both.’ 

The punishment for obstruction is imprisonment for a maximum period of two years; a maximum of RM10,000, or both.

You would not have forgotten that when the MCO order was made on March 18 – and extended on April 01 – it was expressly made in tandem with the Police Act 1967.

Why so?

It is because the Police Act allows a Commissioner, or a Chief Police Officer, in the interest of the security of Malaysia, to order any person in his area of jurisdiction, ‘to remain within doors between such hours as may be specified’.14That power resides in section 31, Police Act 1967

The general penalty of any person who commits an offence in breach of any provisions under the Police Act is a fine not exceeding RM500.00 or a term of imprisonment not exceeding six months – or both.

So why use Penal Code offences to enforce the MCO, or criminalise MCO offenders, and impose far greater – and  oppressive – sentences?

And, to top it all off – to unwittingly spread the contagion?

It makes little sense.

[12].  What is the objective behind the MCO?

The only objective behind the PCIDA – and the March 18, and April 01 MCOs –  is stopping the Covid-19 virus going on a rampage.

The MCO creates social distancing; and thus prevents the spread of the contagion.

It minimises fatalities across the nation.

If so, why are people still disobeying the MCO?

You tell me.

[13].  The inevitable consequence

If you are poor, and disobey, and are imposed a fine of RM1,000.00, you have the choice of paying, or being sent off to prison.

What are the odds of you paying the fine?

And yet lock-ups and prisons are not designed for social distancing.

[14].  It makes no sense to turn police stations and lock-ups into coronavirus infection centres

The folly of charging offenders with non-PCIDA offences is, in fact, to assist – not prevent – the spread of the contagion.

Imprisonment terms under non-PCIDA laws are greater, and the fines stiffer.

That will only result in incarceration, because the poor cannot pay.

And incarceration will spread the contagion – it would be mindless to assume that imprisonment will increase its control. No wonder the prison department has appealed for a reconsideration of custodial sentences: see here.

Every arrest is a potential death sentence: see here

It will create unnecessary and possibly fatal consequences to the detainees, burden medical facilities, and over-extend the already thinly-spread resources of healthcare workers.

While we repose at home, twiddling our thumbs, complaining of boredom,  these healthcare men and women are just now sagging under the burden in ways we cannot even imagine.

We are not the only country with these issues: foreign law enforcement agencies and judiciaries now realise how short-handed they are: see here.

You cannot blame the police or the enforcement agencies.

As professionals, they merely do what their political masters tell them.

Those who tell them what to do, should tell them not to – and end the problem.

[15].  What solutions are there in the law?

First, investigating officers at the frontline may adjourn investigations for up to three months.15Section 107, read with section 10 the Criminal Procedure Code  These powers can be deployed strategically.

Some crimes can be handled as minor offences without physical arrest: see how Chicago has done it, here.

Second, a judicial officer who tries those who offend the MCO, is obliged to ensure any charge brought conforms to section 24 of the PCIDA.

Third, he also has powers to adjourn proceedings if there is ‘reasonable cause’.16Section 259 of the Criminal Procedure Code

Certainly, the danger of contagion is good enough reason.

Fourth, a magistrate can send the accused home and demand his presence before the court at a future date.

As for those who plead guilty, a judicial officer can adjourn sentencing to a future date.

The Chief Justice has the power to give such directions as is necessary.17 Two small examples are in sec.176(1) and sec 176(2)(o) of the Criminal Procedure Code

And finally, the authorities should merely compound the offences – and guess what? The PCIDA expressly provides for it.18Section 25 of the PCIDA reads: ‘Compounding of offences:  The Director-General or any public officer authorised for this purpose by him in writing may compound any offence under this Act or any regulations made under this Act which has been prescribed by regulations as compoundable by collecting from the offender a sum of money not exceeding one thousand ringgit.

But for that to be effected, the Minister needs to amend the Regulations: and that is easily done.

And any sum ordered as a  compounding – depending on who is being charged – should be not oppressive to the poor, the needy, and the daily wage-earner: it should be minimal. See here.

[16].  Protecting and Providing for Refugees, the poverty-stricken, daily-wage earners, and illegal immigrants – let us try a little kindness

Is not the aim of the PCIDA to ensure minimising – not spreading – the contagion?

What about the poor, the needy, the physically challenged, the oppressed, the refugees and the daily workers cooped up in their hovels?

Where will he or his family go for their food, daily provisions, and medical supplies – for the duration of the MCO?

Should Government Social Agencies rush in to protect and provide for them?

Do we hear the ministers speak of it?

Can we behold scores of lorries laden with food being sent into these poor areas?

Like China did? Or Korea? Or other countries?

Are we doing that?

What do you think?

What are you going to do about it?

[17].  Should we not protect our judges and our enforcement officers?

Last week I wrote on how the frontline healthcare workers have to be protected: see here.

Is it not also true, that enforcement personnel, the police forces, the armed forces personnel, customs officers, and immigration officers, and our judicial officers – need equal protection?

If they are to be required to be in close contact with coronavirus carriers, and seen to be scuffling, struggling, and arresting them, and transporting them in Government vehicles, will they not also catch the contagion?

We are now informed that micro-particles continue to float in the air for hours in poorly ventilated places. As opposed to what was previously thought, a sneeze or a cough, as Japanese research seems to have found, travel longer distances: and float about for a whole lot longer.

And masks seem to prevent that.

Is it also not true, that by these overenthusiastic enforcement measures, one merely spreads the pandemic more quickly, and more widely? And thus increases the chances of the MCO’s further extension – something none of us wants?

[18].  What would be the right thing to do?

Respectfully, the right thing to do is to do what South Korea and Japan have done.

They made it compulsory for everyone to use masks, and demanded that everyone return to work – and yet – still maintain social distancing.

The right thing to do is put an end to the MCO, and send everybody back to work – in stages, and in different rates in different areas.

This will kick-start the economy, mitigate the financial losses to the lower-income groups, and return a semblance of sanity into an incarcerated, pent-up society.

[19]. “Thou shall see in it no hollows or rising hills.”

A Great being once said:

‘If the learned and worldly-wise men of this age were to allow mankind to inhale the fragrance of fellowship and love, every understanding heart would apprehend the meaning of true liberty, and discover the secret of undisturbed peace and absolute composure.

Were the earth to attain this station and be illumined with its light it could then be truly said of it: “Thou shall see in it no hollows or rising hills.”19Bahá’u’lláh, ‘Gleanings from the Writings ofBahá’u’lláh’, ‘CXXII: Man is the supreme Talisman’, pp 259-260

 

 

[The author expresses his gratitude to  Mr. Balesubramaniam Selvam, Mr. G. Naidu, Ms KN Geetha, Mr. GS Saran, Mr JD Prabhkirat Singh, Miss KP Kasturi, Mr. Matthew Thomas Philip, Mr. Vijey Esvaren Purnshatman and Miss Amuthambigai Tharmarajah for their timely assistance.] 

 

You May Also Like

Is litigation being used to siphon off government monies and side-step corruption laws?

What is Johore’s constitutional position within Malaysia?

Can a negligent hospital dictate how its patient should spend the court-awarded compensation?

Should private hospitals be better regulated?