COVID-19: An Unprecedented Crisis

Part 1 of a series of articles on the COVID-19 pandemic.

As the saying goes, desperate times breed desperate measures. In view of the worsening situation regarding the COVID-19 pandemic in Malaysia, the Prime Minister, in his special message to all Malaysians on 16 March 2020, announced that the Government had decided to implement a nationwide Restriction of Movement Order.

Following from that, and upon the Minister of Health’s satisfaction that COVID-19 pandemic amounts to a life threatening microbial infection as specified in Part I of the First Schedule of the Prevention and Control of Infectious Diseases Act 1988 (“PCID Act”), the Prevention and Control Infectious Diseases (Declaration of Infected Local Areas) Order 2020 (“PCID Order 2020”) and the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 (“PCID Regulations 2020”) were accordingly gazetted pursuant to the PCID Act with effect from 18 March 2020 to 31 March 2020. The PCID Order 2020 serves to declare all states and federal territories in Malaysia as infected local areas whereas the PCID Regulations 2020 provides for the full scope and extent of the Restriction of Movement Order as earlier announced by the Prime Minister.

The material provisions of the PCID Regulations 2020 pertaining to the restriction and control of movement by the public are to be found in Regulation 3 which provides as follows:-

Control of movements and gatherings

3. (1) No person shall make any journey from one place to another place within any infected local area except for the following purposes:

(a) to perform any official duty;

(b) to make a journey to and from any premises referred to in regulation 5;

(c) to purchase, supply or deliver food or daily necessities;

(d) to seek healthcare or medical services; or

(e) any other special purposes as may be permitted by the Director General.

(2) No person shall gather or be involved in any gathering within any infected local area whether for religious, sports, recreational, social or cultural purpose.

(3) Notwithstanding subregulation (2), a person may gather or be involved in a gathering for purpose of funeral ceremony provided that the number of attendees to such ceremony shall be kept to the minimum.

(4) No person shall make a journey from one infected local area to another infected local area except with the prior written permission of a police officer in charge of a police station.

Regulation 5 and the Schedule to the PCID Regulations 2020 deal with essential services in the following terms:-

Essential services

5. (1) Any premises providing essential services may be opened provided that the number of personnel and patron at the premises shall be kept to the minimum.

(2) Any premises not providing essential services may be opened provided that the owner or occupier of the premises obtains the prior written permission of the Director General and the Director General may impose any conditions as he thinks fit.

(3) 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.

Schedule

Essential Services

(1) banking and finance; (2) electricity and energy; (3) fire; (4) port, dock and airport services and undertakings, including stevedoring, lighterage, cargo handling, pilotage and storing or bulking of commodities; (5) postal; (6) prison; (7) production, refining, storage, supply and distribution of fuel and lubricants; (8) healthcare and medical; (9) solid waste management and public cleansing; (10) sewerage; (11) radio communication including broadcasting and television; (12) telecommunication; (13) transport by land, water or air; (14) water; (15) e-commerce; (16) defence and security; (17) food supply; (18) wildlife; (19) immigration; (20) customs; (21) hotels and accommodations; (22) any services or works determined by the Minister as essential or critical to public health or safety.

On the face of it, regulation 3 of the PCID Regulations 2020 has a beguiling simplicity and appears to be capable of being understood by members of the public, to whom the legislation is addressed. However, a closer inspection of Regulation 3 reveals several issues which merit closer examination.

It should be noted that the term ‘journey’ is used in the English version of regulation 3 of the PCID Regulations 2020. This raises the important question of what constitutes a ‘journey’ for the purposes of regulations. According to the Compact Oxford English Dictionary (3rd Ed), the term ‘journey’ is defined as an act of traveling from one place to another. While such definition is workable in general terms, it is hardly helpful in the present legal context, as one is left uncertain as to what amount of distance constitutes a ‘journey’. In this regard, case law appears to suggest that the term “journey” concerns a considerable length of distance. For example, in Davis v. State 45 Ark 359 (1885), the Arkansas Supreme Court observed as follows:-

“…But the appellant, in this case, was going from home by the highway to a definite point far enough distant to carry him beyond the circle of his neighbours, and to detain him throughout the day, and not within the routine of his daily business. This, we think, constituted a journey.” (Emphasis added)

On the other hand, it is important to note that the Bahasa Malaysia version of regulation 3(1) of the PCID Regulations 2020 uses the term “bergerak” instead, which bears the literal meaning of “move”. It is immediately apparent that the term “bergerak” (“move”) more accurately reflects the intent and purpose of the PCID Regulations 2020, which is commonly referred to in the media as the ‘Movement Control Order’.

It is important to determine which of the terms ‘journey’ and ‘bergerak’ will prevail in the event of an alleged contravention of regulation 3. For example, the term ‘bergerak’ has the broadest of meanings, and can be construed widely enough to even prohibit walking from one’s house to his neighbour’s house or leaving one’s house to go anywhere at all, unless it is for the purposes expressly allowed in the regulations. On the other hand, the term “journey” is capable of giving rise to uncertainty, as a person accused of breaching regulation 3 might argue that the movement in question was not of a sufficient length or distance so as to constitute a “journey”. In such a scenario, and as odd as it may sound, it may very well be uncertain whether a “journey” could be proven to the criminal standard of beyond reasonable doubt.

In this regard, it should be noted that as a matter of statutory interpretation, in the event of inconsistency, the Bahasa Malaysia version of the regulations shall be the authoritative text and shall prevail over the English version: see section 6 of the National Language Acts 1963/67. As such, the courts are likely to apply the ordinary and natural meaning of the word “bergerak” instead of “journey” in construing regulation 3 of the PCID Regulations 2020. Otherwise, the legislative object and intent behind the regulations might be completely undermined.

Regulations 3(2) and 3(3) of the PCID Regulations 2020 go on to describe that any gathering, be it for the purposes of religious, sports, recreational, social or cultural, within any infected local area is banned with an exception for funeral ceremonies where the number of attendees shall be kept to the minimum. On the other hand, regulation 3(4) of the PCID Regulations 2020 prohibits anyone from moving between the infected local areas, without prior written permission of a police officer.

Taking into account regulation 3 of the PCID Regulations 2020 as a whole, the social effects arising from such prohibition of movement are manifold. Businesses which are non-essential have come to a sudden and grinding halt. Schools have been forced to close. Religious gatherings are to be called off. Sports enthusiasts are banned from carrying on any sports and recreational activities, even if jogging alone in one’s own neighbourhood. Important cultural and religious events will be seriously affected, such as the annual Qing Ming festival or even the upcoming Ramadan month and Hari Raya celebrations if the prohibition period is extended. Needless to say, social gatherings and dining at restaurants and eateries are also prohibited. And the list goes on. On one view, the nation is experiencing a lockdown in all but name.

Regulation 4 of the NCID Regulations 2020 provides that a health examination is mandatory for any citizen or permanent resident of Malaysia who returns from overseas upon arrival in Malaysia, whereas regulation 5(1) of the same indicates that premises providing essential services (as specified in the Schedule therein) may operate with the condition that the number of personnel and patron shall be kept to the minimum.

In the same vein, regulation 5(2) of the NCID Regulations 2020 states that any premises providing non-essential services may, however, operate with prior written permission of the Director General subject to further conditions. For example, the National Security Council on 18 March 2020 announced that manufacturing industries, especially those in the production of critical products such as rice, sugar, fisheries, pharmaceuticals, medical and surgical devices and so on, may continue to operate under certain conditions.

Regulation 5(3) of the NCID Regulations 2020 also provides that premises involved in food supply chain or in selling food and beverages by way of drive-through, take away and delivery may still operate. This would essentially mean that one may still order his food by way of drive-through, take away or delivery, so long as he is not dining in.

It is important to note that any non-compliance of the PCID Regulations 2020 is a criminal offence and shall, on conviction, result in a fine not exceeding RM1,000 or to imprisonment for a term not exceeding 6 months or to both. The PCID Regulations 2020 also imposes liability on a body corporate which does not comply with the PCID Regulations 2020, where officers responsible for its management and affairs may be charged severally or jointly in the same proceedings.

It is both timely and commendable that the Government has taken drastic action with a view of suppressing the spread of the COVID-19 pandemic that poses a severe and unprecedented threat to the lives of people in Malaysia. In this regard, it is crucial and important that the people of Malaysia do embrace the concept of rule of law, and to ensure strict compliance of and adherence to the relevant legislation in curbing the transmission of the COVID-19 pandemic. As the late Sultan Azlan Shah, in delivering the 11th Tunku Abdul Rahman Lecture, so aptly observed:-

“The rule of law means literally what it says: the rule of the law. Taken in its broadest sense, this means that people should obey the law and be ruled by it”.

It is during these times of crisis that one truly realises how fragile and vulnerable human life can be. The COVID-19 pandemic is a silent enemy of humanity that recognises no boundaries and which does not discriminate based on age, sex, race, religion or belief. A concerted effort by all members of society, where personal interests must yield to the greater good, are indeed essential and desired to combat the COVID-19 virus and overcome this unprecedented state of affairs, the severity of which justified the imposition of serious restrictions and limitations on of our constitutional rights of liberty of the person, freedom of movement, freedom of religion as well as education under the Federal Constitution, in times of peace no less. We would do well to remember the wise words of Claudius in Hamlet, Act 4, Scene 3:

Diseases desperate grown, By desperate appliance are relieved, Or not at all.”