Part 3 of a series of articles on the COVID-19 pandemic.
The COVID-19 pandemic is without a doubt stress-testing all institutions nationally and globally, and many are struggling to cope, let alone perform effectively in this unprecedented crisis. Despite the World Health Organisation recently projecting that the number of COVID-19 cases in Malaysia is expected to reach its peak in mid-April, and the government’s decision to implement a nationwide Restriction of Movement Order (“RMO”), regrettably some members of the public still have not taken the matter seriously which has consequentially rendered enforcement of the RMO unnecessarily challenging.
In this regard, the government has recently gazetted the new Prevention and Control of Infectious Diseases (Measures within Infected Local Areas (No.2) Regulations 2020 and the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas (No.2) (Amendment) Regulations 2020 (collectively, “PCID (No.2) Regulations 2020”) with effect from 1 April 2020 and 3 April 2020 respectively, both until 14 April 2020 to regulate the second phase of the nationwide RMO.
The legislative framework behind the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 (“PCID Regulations 2020”), which was in force from 18 March 2020 to 31 March 2020, was explored in a previous article entitled “COVID-19: An Unprecedented Crisis”. Broad legal issues in the context of commercial contracts that arose from the RMO were discussed in a previous article entitled “COVID-19: A Superior Force?”.
In this article, focus will be placed on the material changes in the PCID Regulations (No.2) 2020 as compared to the earlier PCID Regulations 2020.
At the outset, the former appears to be more stringent and rigorous with the aim to alleviate further escalation and spread of the COVID-19 pandemic in Malaysia.
The material new provisions in the PCID (No.2) Regulations 2020 pertaining to the condition of movement are to be found in regulations 3 and 4 which provide as follows:-
“Control of movement
3.(1) No person shall move from one place to another place within any infected local area or from one infected local area to another infected local area except for the purposes under subregulation (2).
(2) 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.
(3) Subregulation (2) shall not apply if a direction is made under paragraph 11(3)(b) of the Act.
Conditions for movement
4.(1) Where a person moves from one place to another place within any infected local area or from one infected local area to another infected local area –
(a) to purchase food, daily necessities, medicine or dietary supplement, his movement shall only be, to a place within a radius of not more than ten kilometres from his residence, or to a place nearest to his residence, and he shall not be accompanied by any other person, unless it is reasonably necessary for him to be accompanied by any other person;
(b) to seek healthcare or medical services, his movement shall only be, to a place within a radius of not more than ten kilometres from his residence, or to a place nearest to his residence, and he may be accompanied by any other person as may be reasonably necessary;
(c) to perform any official duty, he shall produce an authorization letter from his employer if required by an authorized officer;
(d) to perform his duty in relation to any essential services, he shall produce an authorization letter from his employer if required by an authorized officer.
(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 shall 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.”
The term “essential services” appearing in regulations 3 and 4 is now redefined in regulation 2 of the PCID (No.2) Regulations 2020 as follows:-
2. In these Regulations –
“essential services” means the services as specified in the Schedule and includes any activity and process in the supply chain of such essential services.”
The revised list of essential services is in turn set out in the Schedule to the PCID (No.2) Regulations 2020 as follows:-
(1) food; (2) water; (3) energy; (4) communication and internet; (5) security and defence; (6) solid waste and public cleansing management and sewerage; (7) healthcare and medical including dietary supplement; (8) banking and finance; (9) e-commerce; (9A) transportation by land, water or air; (9B) port, dock and airport services and undertakings, including stevedoring, lighterage, cargo handling, and pilotage, and storing or bulking of commodities; (9C) production, refining, storage, supply and distribution of fuel and lubricants; (9D) hotels and accommodations; (9E) any services or works determined by the Minister as important as critical to public health or safety; (10) logistics confined to the provision of essential services.”
It should be noted that the term “move” is now adopted in the English version of regulation 3 of the PCID (No.2) Regulations 2020, which is more in line with the legislative object and intent behind the regulations (see the previous article entitled “COVID-19: An Unprecedented Crisis” which highlighted the issues with the term “journey” that was used in the PCID Regulations 2020). In the same vein, it is worth noting that regulation 3(1)(e) of the PCID Regulations 2020 previously allowed movement for any other special purposes as may be permitted by the Director General, but that has now been removed from the PCID (No.2) Regulations 2020. As this would limit the power of the Director General to authorise or allow movement for special purposes, one may wonder the appropriateness and prudence of such omission, especially in genuine cases of emergency or unforeseen circumstances.
While regulations 3(1) and 3(2) of the PCID (No.2) Regulations 2020 prohibit anyone from moving from one place to another place within any infected local area or between any infected local area except for purposes specified therein (including among others, to purchase food, daily necessities, medicine or to seek healthcare or medical services), the new regulation 3(3) of the PCID (No.2) Regulations 2020 stipulates that the aforesaid exceptions shall become inapplicable in the event any authorised officer, pursuant to section 11(3)(b) of the Prevention and Control of Infectious Diseases Act 1988, directs any person or class or category of persons living in an infected local area or in any part thereof to subject himself or themselves to isolation, observation or surveillance, the period of which being specified according to circumstances. In such a scenario, a person subject to such directions is strictly banned from going out from his residence, even if he merely wants to purchase, for instance, food and daily necessities from a nearby grocery shop. It is apparent that this provides the legal basis to what is described in the media as the “Enhanced Movement Control Order”, which has been implemented at, for example, Kampung Dato’ Ibrahim Majid and Bandar Baharu Dato’ Ibrahim Majid in Johor, Sungai Lui village in Hulu Langat, City One Tower in Kuala Lumpur as well as the Selangor Mansion and Malayan Mansion flats in Kuala Lumpur, where the residents therein are not allowed to leave their residence and no visitors are allowed to enter the area.
A striking additional feature in the PCID (No.2) Regulations 2020 is that regulation 4(1) imposes a condition to limit any movement to purchase food, daily necessities, medicine or dietary supplement to within a radius of not more than 10km from one’s residence, or to a place nearest to his residence, and that he shall not be accompanied by any other person, unless it is reasonably necessary for him to be accompanied by any other person. Such movement distance limitation also applies to anyone who seeks healthcare or medical services, albeit that he may be accompanied by any other person as may be reasonably necessary.
At this juncture, an important issue that arises is the proper interpretation and true legal meaning of the term “reasonably necessary” – is the test for what is “reasonably necessary” objective or subjective? From a cursory perusal of the regulations, it is also unclear as to who has the authority to determine the circumstances in which being accompanied is “reasonably necessary”. In general, an objective test takes into account what a reasonable person would regard as necessary having regard to all the objective facts and circumstances, irrespective of the intention of the person doing the act (see for example the decision of the Federal Court of Australia in Bropho v Human Rights & Equal Opportunity Commission  FCAFC 16 at para 66). On the contrary, a subjective test will focus on the subjective or personal belief or intention of the person as to what is reasonably necessary, even though another person (reasonable or otherwise) may not agree with him.
As the legislative intent behind the PCID (No.2) Regulations 2020 is to curb the spread of COVID-19 pandemic by restricting movement of the people in Malaysia, one consistent standard irrespective of individual intention is therefore needed to effectively enforce the regulations. In such circumstances, an objective test is more likely than not to be the test adopted by the courts and/or enforcement officers in determining is “reasonably necessary”. Accordingly, in determining whether it is reasonably necessary, for example, for a person to be accompanied by another to purchase food outside, the subjective views or beliefs of that person will be disregarded, and it must be shown by reference to some objective fact or matter (for example if he is subject to some physical disability) that it is reasonably necessary for him to require such company. In any event, it may also be interesting to note that the term “reasonably necessary” has been judicially described as a “meaningless” phrase: see Re Naylor Benzon Mining Co Ltd  Ch 567 at 575. In this context, the question of what is necessary under regulation 4(1) of the PCID (No.2) Regulations should arguably be more direct and straightforward – either the company of a person is necessary, or it is not. The word “reasonably”, which is designed to qualify the word “necessary”, is rather unhelpful and does not in any way promote certainty in determining whether or not it is necessary for a person to be accompanied by another while buying food and daily necessities outside.
It is worth noting that as the PCID (No.2) Regulations 2020 are silent on whether the aforesaid movement distance limitation applies to any person who supplies or delivers food, daily necessities, medicine or dietary supplement, this seems to suggest that one is not subject to any restriction in terms of distance in supplying or delivering the same. For instance, one may possibly still deliver daily necessities to his relatives whose residence is more than 10km from his residence.
Regulations 4(1)(c) and 4(1)(d) further require that any person, who performs any official duty or duty in relation to any essential services, now has to produce an authorisation letter from his employer if required by an authorised officer.
In addition, under regulation 5 of the PCID (No.2) Regulations 2020, the requirement to obtain prior written permission of the police officer does not only apply to movement between the infected local area (inter-state travelling) as previously provided in the PCID Regulations 2020, but also now applies to movement from one place to another place within any infected local area due to any “special and particular” reason. Essentially, this would mean that save for the purposes and conditions as permitted in the PCID (No.2) Regulations 2020, one must obtain prior written permission from a police officer in charge of the police station nearest to his residence, even if he merely intends to move to an area within the vicinity of his residence. However, it is worth noting in this regard that as the term “special and particular” is not defined in the PCID (No.2) Regulations 2020, it is unclear as to how one is to prove that a reason is both “special” and “particular” at the same time. This will arguably make it very difficult for the public to know what they need to show or prove in such cases to justify any intended movement.
Next, regulation 6(1) of the PCID (No.2) Regulations 2020 prohibits anyone from gathering or being involved in any gathering in any premises within any infected local area for religious, sports, recreational, social or cultural purpose. Whilst it appears to be nearly identical to regulation 3(2) of the previous PCID Regulations 2020, it is worth pointing out that the term “in any premises” is now inserted in the PCID (No.2) Regulations 2020. The difficulty with the term “premises” is that it is a legal term which may mean different things depending on the context in which it is used. For example, in a decision of the English Court of Appeal in M & J S Properties Ltd v White  1 All ER 81 at 82-83, Hodson LJ aptly observed as follows:-
“… It seems to be plain that the word ‘premises’ is on the face of it directed to premises which are capable of physical occupation, and is not directed to an incorporeal right or easement which may be added to the tenancy. In construing the word ‘premises’ one can have in mind its history to which Lord Goddard CJ referred in Gardiner v Sevenoaks Rural District Council  2 All ER 84 at p 85, where he pointed out that the word ‘premises’ had originally been no more than a reference to what had gone before, but that, in the language of conveyancers who were dealing with parcels of property, it came to mean ‘land or what stands upon land’. In the language of conveyancers, that is what is usually meant by ‘premises’, and is, I think, illustrated by a precedent in Key and Elphinstone’s Precedents in Conveyancing (15th Edn), at p 998, where a garden – and a garden is what we are considering here – was referred to separately from ‘the premises hereby demised’.” [Emphasis added]
It can be seen from the above example that in the absence of specific definition in the regulations itself, it is possible to argue that the term “premises” does not cover public places without any physical structures or buildings, for instance, a public recreational park. It would lead to an absurd situation where an offence would be committed if a gathering took place indoors, but not if it happened outdoors, an outcome which surely is not consonant with the legislative intent behind the PCID (No.2) Regulations 2020. It is also unclear as to why the term “premises” is used in regulation 6(1), whereas the term “place” is adopted in other provisions throughout the PCID (No.2) Regulations 2020. In this regard, the insertion of the words “in any premises” seems to be a wholly unnecessary legislative own goal.
Furthermore, regulation 7 of the PCID (No.2) Regulations 2020 allows movement to carry out any works on any infrastructure related to essential services, which if left unattended, would affect the provision of the essential services or affect the safety and the stability of the infrastructure. In both circumstances, one needs to provide the necessary proof upon request by an authorised officer. In this regard, Ministry of Works had also earlier announced that all construction and maintenance works must be halted except for some approved critical works.
It should also be noted that the Director General is now authorised under regulation 10 of the PCID (No.2) Regulations 2020 to issue any direction in any manner for the purpose of preventing and controlling COVID-19 pandemic within any infected local area. Regulation 11(1) of the PCID (No.2) Regulations 2020 expands the scope of liability whereby a person is required to not only abide by the provisions of the PCID (No.2) Regulations 2020, but also to obey any direction of the Director General or an authorised officer, failing which he shall, on conviction, be liable to a fine not more than RM1,000 or to imprisonment for a term not more than 6 months or to both. Pertinently, entities that are subject to regulation 11 of the PCID (No.2) Regulations 2020 are now expanded to include limited liability partnerships, firms, societies and other body of persons, whereas the previous PCID Regulations 2020 merely covered body corporates, which was evidently inadequate to address or cover different types of legal entities.
Moreover, the list of essential services prescribed in the Schedule to the PCID (No.2) Regulations 2020 is now reduced to 15 crucial essential services from 22 essential services previously contained in the PCID Regulations 2020. Nevertheless, it is also worth reiterating that the term “essential services” as defined in regulation 2 of PCID (No.2) Regulations 2020 includes any activity and process in the supply chain of such essential services. Accordingly, although essential services pertaining to fire, prison, immigration and customs have been removed from the Schedule to the PCID (No.2) Regulations 2020, the operation of the same is still permitted as these services evidently relate to security and defence, being one of the essential services prescribed in the Schedule to PCID (No.2) Regulations 2020. Similarly, postal service which has been removed would also be covered under communication and logistic essential services.
While it is commendable that the PCID (No.2) Regulations 2020 were drafted promptly to regulate the second phase of the RMO, and that it has addressed some issues that arose from the previous PCID Regulations 2020 (for instance, the term “movement” is now adopted instead of the term “journey”), it should be noted however that the PCID (No.2) Regulations 2020 appear to have created several new interpretative problems and areas of concern instead (as highlighted above). As members of the public are obligated to comply with the law, which in this case is absolutely crucial to effectively combat the COVID-19 pandemic, it is paramount that the greatest of care must be exercised by the drafters of the regulations to avoid any uncertainty or ambiguity in their scope or application, which might have the effect of frustrating or undermining instead of serving the legislative intent, objects and the enforcement of the RMO.