Recently, a self-proclaimed Cardiologist who went for a walk in a park refused to go home (‘the incident’) when advised by the authority has sparked a discussion. The police even started investigation on his conduct. He claimed that it was not a curfew and he was walking alone in the park. He followed the social distancing rule.
Thus, it begs few questions (“the questions”):
Since it is not a curfew, why cannot he exercise outdoor for his own health?
Have Malaysians been overreacted over the #juststayathome appeal by the Government?
Our Prime Minister, Tan Sri Muhyiddin Yassin had on 16.3.2020 evening announced an imposition of the Movement Control Order (“MCO”) throughout 18.3.2020 to 31.3.2020 by invoking the power conferred under Prevention and Control of Infectious Diseases Act 1988 (“PCIDA 1988”) and the Police Act 1987.
What concerns us more now is on the PCIDA 1988
Section 11(1) of PCIDA 1988 states:
(1) If the Minister 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, by order in the Gazette, declare such area to be an infected local area.
This particular Section allows our Health Minister to declare the relevant infectious area by imposing an Order by Gazette to curb infectious diseases. The MCO is the product of this section, through the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 (“Order 2020”) issued and gazette on 16 March 2020.
Section 11(2) says:
(2) The Minister may, by regulations made under this Act, prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area.
It means the Health Minister is allowed to prescribe certain measures in the area of infection by making relevant regulations. Thus, the Prevention and Control of Infectious Diseases (Measures within the Local Infected Areas) Regulations 2020 (“Regulations 2020”) followed.
To put it simply, the rest of the relevant sections under PCIDA 1988 are:
Section 11(3) allows ‘authorized officer’ to tell you what to do.
Section 11(4) grants the ‘authorized officer’ power to use force when it is necessary.
Section 3 confers the Minister the power to name and appoint any ‘suitable person’ to be an authorized officer. Without the Minister specifically naming any other party including the Royal Malaysian Police Force (PDRM); in general, only Medical Officer of Health and health inspector has the power bestowed under PCIDA 1988.
Although the MCO was announced through the Order 2020, it is insufficient. The PCIDA 1988 and Order 2020 are unclear on what you can exactly do and not to do. It has to be supplemented by the relevant regulations mentioned in Section 11(2) of PCIDA 1988, hence the gazette of the Regulations 2020.
Regulation 3 of the Regulations 2020 lays down that ‘no one can move from one place to another within the infectious area' except for situation laid down in the Sub-regulations 3(1)(a) to (e).
Sub-regulation 3(4) of the Regulations 2020 even prohibits movement from ‘one infectious area to another infectious area’.
Regulation 5 of the Regulations 2020 permits the essential services providers to continue business subject to terms. The list of the ‘essential services providers’ can be found in the Schedule of the Regulations 2020.
Here comes the technical part: the timeline. Due to lack of information, we will be working on assumption on this incident.
The Order 2020 and the Regulations 2020 under Section 11(1) and 11(2) of the PCIDA 1988 were respectively gazette on 16.3.2020 and 18.3.2020.
At the same time, the Government has declared the whole Malaysia as the infectious area for the purpose of Section 11(1) of PCIDA 1988 and as specified in the Schedule of the Order 2020.
The PDRM, the People’s Volunteer Corps (RELA), and now the Malaysian Armed Forces were classified as the appointed authorized officer under Section 3 of PCIDA 1988.
Therefore, in short:
If the incident happened on 18.3.2020 early morning (before the gazette of the Regulations 2020), the ‘Cardiologist’ is entitled to do whatever he says, unless the local council has shut down the park. But he is still allowed to walk freely on public road.
If the incident happened any time after the gazette, he is not allowed to walk publicly unless necessary. And, it goes without saying, what he thought was all wrong. Our authorities can even use force to compel him to go home. Of course, if the officer involved was from the local council, then they have to engage the ‘authorized officer’ within the meaning of Section 3 of the PCIDA 1988. Local council authorities are hand tied on this matter.
Consequently, the answers to the questions above:
Yes, this is not a curfew. But it has almost a curfew effect because civilians are only allowed to leave their houses when they have reasons fall under the ambit of Sub-regulations 3(1)(a) to (e) of the Regulations 2020. Unfortunately, being healthy and walking outside is not one of them.
Yes, people have overreacted on the #juststayathome call but in Malaysia where people are still having third world mindset and low precautionary awareness, we should be thankful that people has overreacted this time.
Amidst this outbreak, legally the Cardiologist might be right. But let's just deal with it from humanity and moral point of view, shall we? We do not only owe a duty to ourselves, we owe the duty to the community and the world to make it a better place.
That being said, our Government seem handicapped in handling this pandemic. Our enforcement authorities seem clueless on the power they have. They should really buckle up.
* This article serves as a general information only, and shall not in any way be treated as a legal advice. If you require any legal advice or further information, please contact us.
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