LEGALITY OF THE MOVEMENT CONTROL ORDER
Posted on 10th April 2020
As Malaysia’s Covid-19 lockdown is extended to 40 days ending on 28 April, 2020, the severity of the measures are starting to take a toll on people’s lives and raise questions about civil liberties. RLSE takes a look at the legality of the lockdown.
The Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas (No 2) Regulations 2020 (the “MCO Regulations”) were gazetted by the Health Minister on 31 March 2020, pursuant to powers conferred on him under Sub-section 11(2) of the Prevention and Control of Infectious Diseases Act 1988 [Act 342] (the “Act”). The MCO Regulations were further amended by the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas (No 2) (Amendment) Regulations 2020 on 3rd April 2002. In a televised announcement by the Malaysian Prime Minister today, those measures were extended to 28 April 2020.
Can the Government Restrict Movement Throughout the Country?
As Sub-section 11(2) only empowers the Health Minister to make regulations to prevent or control the spread of any infectious diseases “within or from any infected local area”, it was necessary to give a broad definition to the meaning of “infected local area” so as to enable the MCO Regulations to have nationwide application. If only specific areas within the country were named as infected local areas, the regulations could not be used to control movement between areas that were not so identified. Consequently, the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 [P.U. (A) 87/2020] declared all States and Federal Territories in Malaysia to be infected local areas thereby making the MCO Regulations applicable to the whole of the country.
The Government was able to do this because the Act provides that if the Minister is satisfied that there is an outbreak of an infectious disease in any area in Malaysia, or that any area is threatened with an epidemic of any infectious disease, he may, by order in the Gazette, declare such area to be an infected local area.
Who Is An Authorised Officer Under The Act?
The Act defines an “authorized officer” as “any Medical Officer of Health, any health inspector, or any officer appointed by the Minister (of Health) under Section 3 of the Act”. Under Section 3 an authorised officer includes a person appointed by the Minister of Health to carry out the provisions of the Act which is legislation designed to prevent the spread of infectious diseases. It would be fair to assume, together with accepted rules of statutory interpretation, that such persons would be health or medical personnel, rather than law enforcement officers. Furthermore, Section 5 of the Act provides separately, that the police are to “render such assistance as any authorized officer may request for the purpose of enabling (an authorised officer) to exercise the powers vested in him by this Act or the regulations made under this Act.” The juxtaposition of these provisions would therefore suggest that it could not have been the intention of the legislation to include the police in the definition of “authorized officers”.
The police are therefore agents of authorised officers providing assistance pursuant to Section 5 of the Act, and must not exceed the scope of their authority by assuming powers larger than those provided under the MCO Regulations. Consequently, if a law enforcement officer gives any instruction not reasonably within the contemplation of the MCO Regulations, those instructions would be ultra vires the Act.
Are The Penalties Valid?
The offences prescribed for a breach of the Act are set out in Section 22 of the Act. Section 22 states as follows:
“Any person who-
(a) obstructs or impedes, or assists in obstructing or impeding, any authorized officer in the execution of his duty;
(b) disobeys any lawful order issued by any authorized officer;
(c) refuses to furnish any information required for the purposes of this Act or any regulations made under this Act; or
(d) upon being required to furnish any information under this Act or any regulations made under this Act, gives false information, commits an offence.”
Other than the offences mentioned in Section 22 and the prescribed penalties under Section 25 of the Act, Section 11 does not state what penalties apply to an infringement of a regulation made pursuant to Sub-section 11(2). Instead, the MCO Regulations prescribe its own penalties which some may consider odd given the wider scope of the penalties that may be enforced under the Act itself.
By promulgating penalties under subsidiary legislation, the penalties are limited to a fine not exceeding one thousand ringgit or imprisonment for a term not exceeding six months or to both. This is because Section 27 of the Interpretation Acts 1948 and 1967 [Act 388] limits the penalties that may be permitted under subsidiary legislation as follows:“… subsidiary legislation may provide that contravention of any provision of the subsidiary legislation shall constitute an offence and for persons guilty of such offence to be liable on conviction to a fine or a term of imprisonment or both, but may not provide for any such fine to exceed one thousand ringgit or any such term to exceed six months.”
Can the Police Make Ad Hoc Arrests?
It should also be noted that an offence under the MCO Regulations is a “non seizable offence” under the Criminal Procedure Code, which means that the offence does not empower the police to arrest the alleged offenders without a warrant. This draws into question the alleged practice by the police of arresting people on the charge of violating the MCO Regulations. However, it remains open for enforcement officers to arrest an alleged offender for the alternative offence of obstructing the enforcement officer in the discharge of his duties under Section 186 of the Penal Code which is a “seizable offence”. If the latter charge is to be used, it should not be represented that the alleged offenders are being arrested for offences under the MCO Regulations. Article 5(1) of the Federal Constitution provides that no person shall be deprived of liberty save in accordance with the law while Article 5(2) of the Federal Constitution provides “where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”
Are the Fines Compoundable?
It has also been reported that the police will start issuing compound notices to violators of the MCO Regulations from the 8th of April 2020 and that the compound notice comes with a RM1,000 fine. Section 25 of the Act provides that the Director General may compound any offence under the MCO Regulations “which has been prescribed by regulations as compoundable by collecting from the offender a sum of money not exceeding one thousand ringgit. However, the MCO Regulations do not appear to expressly prescribe that the offences created thereunder are compoundable. As such, the legality of any compounds issued for violations of the MCO Regulations may be questioned.
RLSE