Under section 11 of the Prevention and Control of Infectious Diseases Act 1988 (the Act), if the Minister of Health is satisfied that there is an outbreak of an infectious disease or threatened outbreak in any area in Malaysia, or that any area is threatened with an epidemic of any infectious disease, he may declare such area to be an Infected Local Area. The Minister is then empowered to take measures to control or prevent the spread of any infectious disease within or from such an area.
On 16 March 2020, the Minister, having been satisfied that all states and federal territories in the country are threatened by an epidemic, namely Covid-19, declared each state and territory as an Infected Local Areas. The declaration was made through the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 (P.U. (A) 87).
The first set of regulations to control the movement and gatherings of people as measures to combat the Covid-19 pandemic was issued on 18 March 2020 and came into effect on the same day. The regulations were to be in place till 31 March 2020. However, midway into that period, the government decided to extend the restrictions to 14 April 2020. The extension would have required the regulations to be extended to 14 April 2020, but instead of that, new regulations were issued on 1 April 2020, that were to be effective until 14 April 2020. The new controls are found in the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 2) Regulations 2020 (Regulations No 2). As with the first set of regulations, Regulations No 2 is also issued by the Minister of Health in accordance with powers vested in him by section 11 (2) of the Prevention and Control of Infectious Diseases Act 1988 [Act 342].
COVID-19 - Regulations No 2 - Introduction
Regulations No 2 substantially reproduces the first set of regulations but with some important modifications. The same main areas of control are repeated, except that unlike in the first set of regulations, Regulations No 2 does not include any provisions for the closure of premises. This was an important and far-reaching provision in the first set of regulations. Only essential services were permitted to be open. Non-essential services could only be open with the written permission of the Director-General of Health. No explanations have been given for the omission. Perhaps, it is the Minister’s view that the extensive restrictions on movement and gatherings are sufficient to effectively close non-essential establishments.
Regulations No 2 deal with the following matters;
The new regulations on movement are as extensive as those in the first set of regulations. They prohibit a person from moving from one place to another, whether within an infected local area (a state or Federal Territory) and from one infected local area to another (movement interstate).
As was the case in the first set of regulations, there are exceptions to the movement restrictions in Regulations No 2 that allow personal movement in five permitted instances. These resemble the exemptions in the first set of regulations, but unlike those exemptions which only allowed permitted movements to take place within an infected local area, Regulations No 2 allows permitted movements even from one infected local area to another.
Clause 3 (2) of Regulations No 2 states that a person may move from one place to another place within any infected local area or from one infected local area to another infected local area for the following purposes:
?(a) To purchase food, daily necessities, medicine or dietary supplement;
(b) To supply or deliver food, daily necessities, medicine or dietary supplement;
(c) To seek healthcare or medical services;
(d) To perform any official duty; or
(e) To perform any duty in relation to any essential services, which are listed below.
Although appearing in a different order, the same exemptions were found in the first set of regulations. Exemption (e) above is stated in wider terms than the similar exemption in the first set of regulations which only allowed a ‘journey to and from any premises’ providing essential services. The present articulation of the exemption read together with the broader definition of essential services in the new regulations which now includes ‘any activity and process in the supply chain of such essential services’ broadens the category of persons who may avail this exemption and at the same time expand the latitude to the freedom of movement in the exemption.
Clause 3 (3) states that ‘subregulation (2) shall not apply if a direction is made under paragraph 11 (3) (b) of the Act’. There is, however, no paragraph 11 (3) (b) in the Regulations.
What is new in Regulations No 2 are the conditions attached to exempted movements. Clause 4 of Regulations No 2 adds the following conditions to exempted movements. They deal with the distances that may be travelled and whether they may be accompanied by another person.
(a) Movements to purchase food, daily necessities, medicine or dietary supplement, must be limited to a place within a radius of not more than ten kilometres from the residence of the person moving, or to a place nearer to his residence. For travel for such purpose the person must not be accompanied by any other person unless it is reasonably necessary for him to be accompanied by any other person;
(b) Movements to seek healthcare or medical services is restricted to a place within a radius of not more than ten kilometres from the residence of the person concerned, or to a place nearest to his residence. For such purposes, a person may be accompanied by any other person as may be reasonably necessary;
(c) Movements to perform any official duty or a duty in relation to any essential service must be supported by an authorization letter from the employer if required by an authorized officer.
(d) Under Clause 4 (2), for the purpose of controlling the movement of persons purchasing food, the owner or operator of, or person responsible for, a business of selling food must carry out business only by way of drive-through, take away or delivery subject to any direction as may be issued by the Director-General.
Under Clause 5 of Regulations No 2, where, due to a special and particular reason (sic), a person needs to move from one place to another place within any infected local area or from one infected local area to another infected local area, that person must obtain prior written permission of the police officer in charge of the police station nearest to the residence of such person. Under the first set of regulations, permission from a police officer was only required for interstate travel. The new regulations now allow a person desiring to travel for any ‘special or particular reason’ within or to any infected local area not covered by any of the exemptions to do so with the permission of a police officer in charge of a police station. As no other conditions are stipulated for granting such permission, the new provision may usefully aid persons to attend to other urgent matters.
Another provision in Regulations No 2 that eases the restrictions on movement is found in Clause 7. The clause allows a person to travel within and to any other infected local area to carry out any works on any infrastructure related to any essential services which if not carried out would affect the provision of the essential services or on any other infrastructure which if not carried out would affect the safety and the stability of the infrastructure. The only condition that such person must satisfy is that he must provide the necessary proof if requested by an authorized officer.
The requirement in the first set of regulations for Malaysian citizens and permanent residents returning from overseas to undergo a medical examination is now extended to expatriates. They must undergo health examination upon arrival in Malaysia before proceeding for immigration clearance at any point of entry and shall comply with any direction of an authorized officer.
The restriction on gatherings in Regulations No 2 is identical to that in the first set of regulations. It stipulates that no person shall gather or be involved in any gathering whether for religious, sports, recreational, social or cultural purposes. The control on gatherings is very broad. The purposes covered are comprehensive, even if no express reference is made to political gatherings, an omission that was also noticed in the previous regulations.
The important exception made for gatherings for funeral ceremonies that was in the first set of regulations is included in the new regulations. The same proviso applies - the number of attendees are to be kept to a minimum. What would be an acceptable minimum number is not prescribed by the Regulations but a reasonable interpretation of the phrase may require limiting the attendees to family members and religious and funeral personnel.
Where an authorized officer requests for any information relating to the prevention and control of infectious disease from any person or body of persons, the person or body of persons shall comply with the request.
Under the new regulations, the Director General of Health is given wide powers to issue any direction in any manner, whether generally or specifically, to any person or group of persons to take such measures for the purpose of preventing and controlling any infectious diseases within any infected local area.
Any person who contravenes any provision of these Regulations or any direction of the Director General or an authorized officer 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.
Where any person who commits an offence under these Regulations is a company, limited liability partnership, firm, society or other body of persons, a person who at the time of the commission of the offence was a director, compliance officer, partner, manager, secretary or other similar officer of the company, limited liability partnership, firm, society or other body of persons or was purporting to act in the capacity or was in any manner or to any extent responsible for the management of any of the affairs of the company, limited liability partnership, firm, society or other body of persons or was assisting in its management—
(a) may be charged severally or jointly in the same proceedings with the company, limited liability partnership, firm, society or the body of persons; and
(b) if the company, limited liability partnership, firm, society or the body of persons is found guilty of the offence, shall be deemed to be guilty of that offence and shall be liable to the same punishment or penalty as an individual unless, having regard to the nature of his functions in that capacity and to all circumstances, he proves—
(i) that the offence was committed without his knowledge; and
(ii) that the offence was committed without his consent or connivance and that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
The Schedule to the Regulations provides a list of 10 services that are classified as Essential Services. The first set of regulations listed 22 such services. The new list is as follows;-
As mentioned earlier, under Regulations No 2 essential services is defined to include any activity and process in the supply chain of such essential services.
3 April 2020