Stern Measures to Combat the Coronavirus
The Government of Malaysia has Introduced a Number of Restrictions and Controls on the Movement and Gathering of People to Combat the Spread of the COVID-19 Virus, also described as the coronavirus. The object of the regulations is to keep people home except when they have to attend to official matters and urgent or essential needs. Other measures ban the entry of people from other countries and subject those returning from overseas to be medically examined and if needed to be treated. With 900 confirmed cases of people infected with the disease, it is important that the public is made aware of the restrictions and complies with them. This note is written with that purpose.
The Legal Measures Taken – Declaration of Infected Local Areas
The legal source for the regulation of the COVID-19 epidemic is the Prevention and Control of Infectious Diseases Act 1988 (the Act). Under section 11 of the Act, if the Minister of Health 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 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 in the country as 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 consequences of the Order are that every location in the country, whether it is a home, building or any facility such as schools and shops are by law an infected local area. So are roads and open spaces, whether publicly or privately owned.
Consequences Following from the Declaration
A number of consequences will follow from that declaration as shown below.
To treatment or immunization;
To isolation, observation or surveillance, the period of which being specified according to circumstances; or
To any other measures as the authorized officer considers necessary to control the disease.
It shall be lawful for an authorized officer to use such force, with or without assistance, as may be necessary and to employ such methods as may be sufficient to ensure compliance with any direction issued.
Any person who refuses to comply with any direction issued by the Minister or an authorized officer commits an offence under the Act.
Apart from the above provisions, the Act also imposes various duties and restrictions on people who know or have reason to believe that they are suffering from an infectious disease. These obligations have not been emphasized in either the Prime Minister’s message or in the statement issued by the National Security Council, which is unfortunate because they stress the responsibility placed on individuals to help combat the spread of the disease.
The Ministerial order made on 16 March and the Regulations issued on 18 March 2020 make up the legal measures to combat the Covid-19 epidemic. There are also provisions in the Act, as shown above, that can be invoked at any time to deal with the epidemic such as surveillance and forced immunization and medical treatment of people infected with the disease or suspected to be infected. Whilst the latter rules are of no less importance in dealing with infectious diseases, the focus of this note will be on the set of regulations issued on the Covid-19 Regulations.
The Covid-19 Regulations
This note will now examine the regulations made under s. 11 of the Act entitled, Prevention and Control of Infectious Disease (Measures within the Infected Local Areas) Regulations 2020. The regulations came into effect on 18 March 2020 and will continue to be in effect until 31 March 2020.
The Prevention and Control of Infectious Disease (Measures within the Infected Local Areas) Regulations 2020, also known as the Movement Control Order, deals with five types of restrictions. They are;
1. Control of Movements
Clause 3(1) of the Regulations prohibits any person from journeying (traveling) from one place to another within any Infected Local Area. Nothing in the way the prohibition is stated revolves on the mode of transport or the distance covered in the journey. Nor is the purpose of the journey a factor unless, as will be seen below, it constitutes an exception to the prohibition. A plain reading of clause 3(1) of the Order would cover even a walk to a neighbor’s house, the local shops or jogging to the local park. The restriction is extensive enough to keep people within their homes which would appear from numerous official statements is the object of the Regulations. Traveling from one place to another may also be broad enough to restrict those living in condominiums and apartment blocks from walking to another unit or apartment within the building or to the common facilities such as swimming pools and gyms that are commonly found in such residences.
1.1 Exceptions to the Restrictions on Movements
As mentioned earlier, traveling for certain purposes are exempted from the general restriction imposed by clause 3(1) of the Regulations. These are;
1.2 Restriction on Interstate travel
Clause 3(4) of the Regulations deals with Interstate travel. The subsection stipulates that no one shall make a journey from one infected local area to another such area (which really means from one state or Federal territory to another) without the prior written permission of a police officer in charge of a police station.
2. Control of Gatherings
The restriction on gatherings stipulates that no person shall gather or be involved in any gathering whether for religious, sports, recreational, social or cultural purposes. This too is a very broad restriction. The purposes covered are comprehensive, even if no express reference is made to political gatherings.
There is, however, an important exception made for gatherings for funeral ceremonies provided the number of attendees is 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.
3. A requirement for Health Examination upon Arrival in Malaysia
A citizen or permanent resident of Malaysia returning from overseas is required to undergo a medical examination before proceeding for immigration clearance and to comply with any order issued by an authorized officer.
4. The Closure of Premises
There is no rule in the Regulations on the closure of premises generally. Instead, the Regulations merely stipulate the types of premises may be opened. Clause 5(1) of the Regulations provides that ‘any premises providing essential services may be opened provided that the number of personnel and patrons at the premises shall be kept to the minimum.’ A schedule to the Act lists 22 services as essential services. The full list is annexed to this note.
As to premises not providing essential services clause 5(2) states that such premises may be opened provided that the owner or occupier obtains the prior written permission of the Director-General who may impose any conditions as he thinks fit. By implication, this would mean that non-essential premises may not be opened without the requisite permission. No criteria are stipulated in the Regulations as to when such permission may be granted but it is unlikely to be less than that which applies to essential premises - the number of personnel and patrons at the premises are kept to the minimum.
Further, clause 5(3) provides that ‘any premises involved in food supply chain or in selling food and beverages by way of drive-through, take away and delivery may be open subject to any conditions imposed by the Director-General as he thinks fit.’
There are several difficulties with Regulation 5 that make the regulation ambiguous and even difficult to comply with. First, while it is clear what premises providing essential services are because of the long list of such premises listed in the Schedule to the Regulations, there is no clarity as to what non-essential premises are. The obvious interpretation would be that premises not listed in the schedule are all non-essential premises. And that is the difficulty, because the term "premises" is defined in the principal Act to include ‘any structure, permanent or otherwise, the land on which the structure is situated, and any adjoining land used in connection therewith, and also includes any street, open space or vehicle.’ Going by this definition, every type of premises that do not fall within the list of essential services must be closed for the duration of the restrictions in the Covid-19 Regulations.
The difficulty with the Regulation on the closure of premises may be resolved by reading closure as not to mean a physical closure, or not merely a physical closure but a closure to the admission or gathering of people, which is the object of the Regulations. Such a reading would allow for a more reasonable interpretation of the provisions dealing with the closure of non-essential premises.
In the case of universities and colleges and other premises that include residential facilities within the premises, the owner or occupier may have to obtain the Director General’s permission or claim that the residential facilities fall within the category of hotels and accommodations that are included in the list of Essential Services in the Schedule to the regulations.
Another difficulty found in Regulation 5 (3) that deals with premises involved in the food supply chain, drive-through restaurants, and take away establishments. These are permitted to be open subject to any conditions that may be imposed by the Director-General. However, Food Supply as a general service is listed as an essential service which means food supply premises may be opened provided the number of personnel and patrons at the premises are kept to a minimum (5(1).
5. Compliance with the Request for Information
Clause 6 of the Regulations imposes a duty on anyone who is requested for information concerning the prevention and control of infectious disease by an authorized officer to comply with that request.
The declaration of an area as an infected local area has other consequences than the restrictions imposed by the Covid-19 Regulations discussed above. During the continuation of the Order, that is at all times when a place is regarded as an infected local area, any authorized officer under the Act may direct any person or class or category of persons living in an infected area to subject themselves to treatment or immunization or to isolation, observation or surveillance, the period of which being specified according to circumstances or to any other measures as the authorized officer considers necessary to control the disease. The authorized officer may use force to ensure compliance with any direction he issues and non-compliance by the person concerned will amount to an offence under the Act.
The Covid-19 Regulations impose criminal penalties for the breach of any of the regulations.