Part 4 of a series of articles on the COVID-19 pandemic.
As the COVID-19 pandemic continues to wreak havoc around the world, the nationwide Movement Control Order (“MCO”) implemented by the Malaysian government since 18 March 2020 has posed Malaysia with the serious conundrum of choosing between life or livelihood. While the restriction of movement is without a doubt necessary to curb the spread of the COVID-19 pandemic, businesses are struggling to survive amid the partial lockdown in the country. The Prime Minister of Malaysia, in his special address in conjunction with Labour Day, averred that Malaysia has incurred an estimated RM63 billion in losses since the enforcement of the MCO, and will possibly incur another RM35 billion losses in the event the MCO is extended for another month. The Prime Minister then announced the implementation of the Conditional Movement Control Order (“CMCO”) where most economic sectors were permitted to commence operation subject to conditions starting from 4 May 2020. Numerous standard operating procedures (“SOPs”) in respect of various industries have since then been issued by the respective ministries. On 10 May 2020, it was announced that the CMCO would be extended for another 4 weeks until 9 June 2020.
Accordingly, the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.6) Regulations 2020 (“PCID Regulations (No.6) 2020”) were gazetted with effect from 13 May 2020 to 9 June 2020 to regulate the sixth phase of the nationwide MCO and/or CMCO. It should be noted that all directions of the Director General issued under the previous Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.5) Regulations 2020 continue to remain in force unless revoked by the Director General.
The legislative framework behind the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 (“PCID Regulations 2020”), which were 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 MCO were discussed in another article entitled “COVID-19: A Superior Force?”. Interpretative issues and areas of concern arising from the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.2) Regulations 2020 were analysed in a recent article entitled “COVID-19: One Step Forward, Two Steps Back”.
This article serves to address the salient changes introduced in the PCID Regulations (No.6) 2020. At the outset, unlike the previous regulations enforcing the MCO that were restrictive in nature, the PCID Regulations (No.6) 2020 appear to allow movement in general, except for certain prohibited activities and interstate travelling.
The major new provisions in the PCID (No.6) Regulations 2020 pertaining to the condition of movement are to be found in regulations 3 to 8 which stipulate as follows:-
- No person shall carry out, organize, undertake or otherwise be involved in, any prohibited activity.
Control of movement within infected local area
- (1) Subject to subregulation (2), a person may move from one place to another place within any infected local area.(2) No person shall enter into or exit from a place that is subject to an enhanced movement control order except any person who is providing healthcare and medical services or is given permission by an authorized officer.(3) For the purposes of subregulation (2), “enhanced movement control order” refers to a direction given by an authorized officer under subsection 11(3) of the Act.
Control of movement within the State of Sarawak
- (1) Notwithstanding regulation 4, no person shall move from one district to another district within the State of Sarawak.(2) Where due to a special and particular reason a person needs to move from one district to another district within the State of Sarawak, that person shall obtain prior written permission of the police officer in charge of the police station nearest to his residence.
Control of movement between infected local area
- (1) No person shall move from one infected local area to another infected local area except to and from work.(2) Where spouses are residing in different infected local areas, one spouse may move, with prior written permission of the police officer in charge of the police station nearest to his or her residence, to the residence of his or her spouse in the other infected local area.(3) Where due to a special and particular reason a person needs to move from one infected local area to another infected local area, that person shall obtain prior written permissions of the police officer in charge of the police station nearest to his home.
Control of gathering and procession
- (1) No person shall in any way participate or be involved in any gathering or procession, whether for economic, religious, educational and learning, sports, recreational, social or cultural purposes.(2) Notwithstanding subregulation (1), a person may gather or be involved in a gathering –(a)for Hari Raya Puasa, Pesta Kaamatan and Gawai Dayak Day subject to such directions of the Director General; or(b)for a funeral, on the condition that the attendance at such funeral shall not exceed twenty.
State of Selangor, Federal Territories of Kuala Lumpur and Putrajaya as one infected local area
- For the purposes of regulations 4 and 6 and subregulation 7(2), the State of Selangor and the Federal Territories of Kuala Lumpur and Putrajaya shall be reckoned as one infected local area.
It is worth noting that the PCID (No.6) Regulations 2020 are not prohibitive, but rather permissive in nature. In other words, the said regulations generally permit activities, businesses or otherwise, to be carried out unless expressly prohibited. Pertinently, it is also observed that the term “prohibited activity” has replaced the term “essential services” described in the previous regulations and it is accordingly defined as follows:-
- In these Regulations –
“prohibited activity” means the activity specified in the Schedule”.
The list of prohibited activity is set out in the Schedule to the PCID (No.6) Regulations 2020 as follows:-
(1) entertainment, leisure, sports and recreational activities which may cause a crowd to gather; (2) activities in pubs and night clubs, including restaurant business in pubs and night clubs; (3) activities relating to religious, cultural and art festivities which may cause a crowd to gather; (4) business activities which may cause a crowd to gather; (5) betting, sweepstake, lottery, gaming machine or games of chance activities such as gambling, number forecast, slot machine and horse racing gambling or betting, and activities in casino; (6) activities at a centralized labour quarters, employees’ hostel and dormitory which may cause a crowd to gather; (7) fitting of clothes, using fitting rooms in clothes stores, trying on fashion accessories in stores and providing cosmetic testers in stores; (8) services in barbershops and beauty salons; (9) filming movies, dramas, documentaries and advertisements; (10) cruise ship activities, tourism services, and services at accommodation premises under the Tourism Industry Act 1992 [Act 482]; (11) installation and maintenance of machinery activities (lift, escalator, boiler and others) and tower crane at construction sites in groups which may cause a gathering; (12) theory and practical examinations for shot-firer (blasting) for mining and quarrying industry; (13) certification for agri commodities; (14) activities of financial services industry and banking, involving sales and marketing, not within the premises of financial institutions and banks, or in public places; (15) commercial activities involving sales and marketing not within business premises, or in public places, not including food business at food courts, hawker centres, food stalls, food trucks, and the like.
Essentially, it is noteworthy that the movement distance limitation of 10km from one’s residence imposed in the previous regulations has now been removed from the PCID (No.6) Regulations 2020. In this regard, regulation 4(1) of the PCID (No.6) Regulations 2020 allows movement of the people in general without any distance limitation, so long as it is within a state or a federal territory (all states and federal territories in Malaysia had earlier been declared as infected local areas under the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020, gazetted on 17 March 2020). In respect of a place that is subject to an “Enhanced Movement Control Order” (“EMCO”), regulation 4(2) stipulates that only individuals, who are providing healthcare and medical services or approved by an authorised officer, are allowed to enter into or exit (see the previous article entitled “COVID-19: One Step Forward, Two Steps Back” which illuminates the legal basis of the EMCO).
In similar vein, it should be noted that regulation 5 however prohibits movement between districts within the state of Sarawak, unless due to a special and particular reason that such movement is required, whereby one must first obtain a written permission of the police officer (see the previous article entitled “COVID-19: One Step Forward, Two Steps Back” which highlights the difficulty in proving how such a reason is both “special” and “particular”). It is believed that such restrictive measures were deemed necessary to curb the spread of the COVID-19 pandemic to several green zone areas, especially rural areas within the state of Sarawak.
Next, interstate travelling is still generally barred under regulation 6 of the PCID (No.6) Regulations 2020, but an exception is provided therein if the movement is for the purposes of work. In the event that it is necessary for such movement due to a special and particular reason, or for one spouse to travel to his or her spouse in another state, one has to obtain prior written permission of the police officer in charge of the police station nearest to his home. It is however unclear as to the legitimacy and enforceability of certain directions and/or SOPs issued by the National Security Council to the effect that married couples, who are living apart in different states for work, are allowed to visit their spouses in another state once a week, as such frequency is not stated in the regulation 6 of the PCID (No.6) Regulations 2020. It should be noted that a practice note that serves as an internal administrative circular does not have the force of law: see decision of the Federal Court in Unilever (M) Holdings Sdn Bhd v So Lai @ Soo Boon Lai & Anor  4 MLJ 326 at para . It is arguable that, by way of analogy, such direction and/or SOPs restricting frequency of visits are arguably administrative in nature. Also, whilst section 2 of the Prevention and Control of Infectious Diseases Act 1988 defines an “authorised officer” as any Medical Officer of Health, any health inspector, or any officer appointed by the Minister, and that any person who disobeys a lawful order issued by such authorised officer commits an offence, it is unclear whether officers and/or the spokesperson of the National Security Council are each considered as an authorised officer. It remains doubtful whether the said restriction on the frequency of interstate visits between spouses has force of law and is binding accordingly. In the event it is not, it would possibly a straightforward case of an ultra vires act on the part of the enforcement officers.
Although it can be seen from the above discussion that movement of the people is now mostly allowed during the CMCO period, it is pertinent to note that regulation 7(1) of the PCID (No.6) Regulations 2020 expands its restrictive control over gatherings to not only cover those for the purposes of religious, sports, recreational, social or cultural, but also forbids anyone from participating or involving in any gathering or procession for economic or educational and learning purposes. It should be noted that the word “gathering” is not defined anywhere in the PCID (No.6) Regulations 2020. In this context, if it was to be construed with a narrow interpretation (which is by no means unlikely given the legislative objective of the MCO and/or CMCO) and that 2 individuals were sufficient to constitute a gathering, it would effectively mean that almost all types of activities would be unlawful other than moving around as envisaged in regulation 4, irrespective of the prohibited activities listed in the Schedule of the PCID (No.6) Regulations 2020. To name a few examples, one may travel to his friend’s house or to a lecture theatre since movement within a state is permitted under regulation 4, but entering his friend’s house for a social visit or attending educational lectures in the said lecture theatre will not be allowed.
Nevertheless, regulation 7(2) goes on to describe that a gathering is allowed for certain upcoming festivals such as Hari Raya Puasa, Pesta Kaamatan and Gawai Dayak Day, subject to further directions of the Director General. Accordingly, SOPs have reportedly been issued to stipulate, among others, only the first day of Hari Raya will be allowed for visiting and any such gathering must not exceed 20 people (see the discussion above highlighting the legitimacy of direction and/or SOPs issued by officers other than the Director General of Health and/or any authorised officers) . At this juncture, it is pertinent to note that for the purpose of regulation 4, 6 and 7(2), the state of Selangor, Federal Territories of Kuala Lumpur and Putrajaya are to be regarded as one infected local area.
Furthermore, it appears that regulation 3 of the PCID (No.6) Regulations 2020 not only restricts individuals who carry out, organise or undertake the prohibited activities set out in the Schedule, but such restriction also applies to the end-users, i.e. the consumers. In this regard, the list of prohibited activities requires further examination in which a cursory perusal on the same would find that it is imperfectly drafted.
Firstly, to take one category of the prohibited activities, “business activities which may cause a crowd to gather” as an example, where the expression “may cause a crowd to gather” requires closer scrutiny. The Concise Oxford English Dictionary (12th Ed) defines the word “gather” as “come or bring together; assemble or accumulate”, and the word “crowd” as “a large number of people gather together”. If one were to read the above expression as a whole, it remains perplexing and uncertain as to the number of persons required to satisfy the phrase “a crowd to gather”. In this context, it cannot possibly be right that shopping malls and retail businesses are allowed to operate subject to conditions as recently announced by the government, since the same will most likely (or indeed, almost always) cause a crowd to gather therein. Accordingly, the wording adopted to describe the business activities that are prohibited from commencing operation do not serve as useful legislative guidance in enforcing the CMCO. Pertinently, it is observed that this is incongruous with regulation 7(2)(b) of the PCID (No.6) Regulations 2020 where the number of persons, who may gather or involve in a gathering for a funeral, is expressly limited to a maximum of 20 persons.
Secondly, unlike previous regulations that allowed the Minister to further designate any other business activities as the essential services in the Schedule thereof, the Schedule to the PCID (No.6) Regulations 2020 seems to be exhaustive in nature, where it does not provide any power or discretion for the Minister to designate any other businesses and/or activities as prohibited activities. Notably, as the judiciary and court services are not listed as prohibited activities under the Schedule, it appears that the courts are arguably not barred from commencing operations, and indeed have done so (subject to strict SOPs) with effect from 13 May 2020
Interestingly, it should be noted that the National Security Council had earlier issued a SOP which sets out a list of prohibited activities with further details. To take sports as an analogy, whilst regulation 7(1) of the PCID (No.6) Regulations 2020 bans any gathering or procession for sports purposes, and the Schedule thereof merely stipulates “entertainment, leisure, sports and recreational activities which may cause a crowd to gather”, the National Security Council nevertheless has taken the position that the categories of prohibited sports include, among others, indoor sports, swimming pool, contact sports such as rugby, football and basketball, and outdoor sports which involve more than 10 participants. In the same vein, the Ministry of Youth and Sports had thereafter issued a list of Frequently Asked Questions (“FAQ”) for supplemental clarifications. While the said SOP and the FAQ appear to suggest that outdoor sports are allowed, it cannot possibly be right as outdoor sports facilities such as visiting recreational parks will be likely to attract a considerably big crowd, which is not consonant with the Schedule to the PCID (No.6) Regulations 2020.
At this juncture, one must realise that regulation 4(1) of the PCID (No.6) Regulations 2020 does not appear to be subject to the restriction on prohibited activities as prescribed in regulation 3 of the same. It is by no means clear that regulation 3 by implication allows all activities which are not expressly prohibited, and such activities appear to be still subject to regulation 7(1) in any event. Where there is no express provision allowing businesses to operate (whether essential services or otherwise) according to carefully defined terms, all businesses would arguably infringe regulation 7(1) as there would be employees and/or consumers gathering for economic purposes. It is puzzling as to which of the regulations should prevail in the circumstances,,bearing in mind that the courts cannot construe regulation 3 in a manner which then undermines another material operative provision, namely regulation 7 of the PCID (No.6) Regulations 2020.
Next, regulation 9 of the PCID (No.6) Regulations 2020 provides that a maximum of 4 family members from the same house are allowed to travel in one vehicle during the CMCO period. On the other hand, regulation 10 of the PCID (No.6) Regulations 2020 stipulates that public transportations are allowed to operate at half of the total maximum capacity of the number of passengers for each journey. In respect of flight services from the state of Sabah or Sarawak to Peninsular Malaysia, regulation 11(1) of the PCID (No.6) Regulations 2020 stipulates that such flight carrier shall only carry 66.6% of the total capacity per journey, whereas for the journey from Peninsular Malaysia to the state of Sabah or Sarawak, full capacity is permitted pursuant to regulation 11(2). In the event where all the passengers of the flight are students in Peninsular Malaysia returning to the state of Sabah or Sarawak, full capacity of the flight carrier is similarly allowed. On the other hand, a driver of a hire car, taxi cab, airport taxi cab, limousine taxi cab or e-hailing vehicle is only allowed to carry up to 2 passengers every journey under regulation 10(2).
Interestingly, regulation 16 of the PCID (No.6) Regulations 2020 enables members of Parliament or a State Assembly to attend a sitting of Parliament or State Assembly, irrespective of any restrictions imposed by the PCID (No.6) Regulations 2020. It is therefore strange that the recently concluded parliamentary sitting was scheduled to take place for only 1 day, and immediately ended after the royal speech by the Yang di-Pertuan Agong, purportedly due to health concerns, as firstly, the PCID (No.6) Regulations 2020 has removed all possible hurdles to allowing the movement or gathering of the members of Parliament or a State Assembly for such purposes and secondly, the sitting of Parliament or a State Assembly cannot in any conceivable way be less important than other activities and/or businesses that are allowed to commence operations during the CMCO period.
In a nutshell, one may be forgiven for questioning the need to hastily introduce the CMCO. The PCID (No.6) Regulations 2020 effectively expose the public to unnecessary risk, and as the same appears to be impetuously and vaguely drafted, the regulations do not provide sufficient safeguards or any proper legal basis for what the new normal should be. The lack of specificity in the PCID (No.6) Regulations 2020 makes one wonder whether the government has indeed figured out a proper exit plan for the post-MCO period. There needs to be more certainty on what can or cannot be legally done during the CMCO period. The health and safety of the people cannot be sacrificed at the altar of political or economical expediency.