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LEGAL POSITION ON THE ‘ONE-PERSON PER HOME’ RESTRICTION AND DEPLOYMENT OF MILITARY DURING THE MCO




The Works Minister, Datuk Seri Fadillah Yusof, on 21.3.2020, said only one person will be allowed to go out to purchase daily essentials and medication during the movement control order ("MCO").


Earlier on 20.3.2020, the Defence Minister, Datuk Seri Ismail Sabri Yaakob announced that his Ministry is going to deploy the Malaysian Armed Forces in aiding our Royal Malaysian Police Force (“PDRM”) in enforcing the MCO implemented by the Government on 18.3.2020.


Malaysians may ponder:

  1. Is it legal to only allowed one person to leave home during the MCO?

  2. Can the army arrest the civilians if there is a breach of the MCO?

According to Regulation 3 of the Prevention and Control of Infectious Diseases (Measures within the Local Infected Areas) Regulations 2020 (“Regulations 2020”) which was in force starting 18.3.2020, 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).


Some may argue that this has violate the basic human rights (freedom of movement) guaranteed by Article 9 of the Federal Constitution (“FC”). However, this can be easily disregarded as there are caveats provided under the same Article of our FC, and public health is part of it.


The fact that this announcement was made by the Works Minister as opposed to the Home Minister or the Prime Minister raised doubts, too. Similarly, due to the Cabinet is collectively responsible under Article 43 of the FC, we may pay no heed to this issue.


Be that as it may, these Regulations 2020 do not define the number of people who are allowed to leave home during the MCO for the necessities or medication. Considering this pandemic situation and the MCO is unprecedented in Malaysia, there is no case law available to shed some light onto the actual number of people who is allowed to leave the house under such epidemic.


However, based on the power conferred to the Government under section 11 of the Prevention and Control of Infectious Diseases Act 1988 (“PCIDA 1988”), we trust that the Government shall have to power to limit how many people may leave the home during the MCO.


In the event you find yourself in breached of the MCO and stopped by the army, fret not. The military rifle cannot be used against you.

In a non-emergency state under Article 150 of the FC (which we are not here), soldiers have neither power of arrest nor enforcement of law against civilians. That is, of course, unless the Government has enacted or made any regulation to grant the military power to arrest. Until that is done, the soldiers you might bump into at a roadblock during the MCO is not the ‘authorized officer’ under Section 3 of the PCIDA 1988.


That being said, deploying the military in aiding the PDRM during the MCO raised eyebrows. Since the army has no power against the civilians, all they can do is to utter a sentence, ‘boss, sila duduk diam-diam di rumah’ seems menial and a waste of tax payer money.

Our PDRM managed to control massive gathering in few Bersih movements, Malay Dignity Assembly and all other crowd gatherings but during this MCO where people movement is minimal, it is ironic that we require the army service. It also implies that our PDRM is incapable to a certain extent.


Further, the notion of army is being involved during MCO will cause more unrest, fear, panic, phobia and anxiety among the people which is the precise thing the government should guard against. It now renders the perfect breeding ground for fake news to spread.


Additionally, it sparks worry as army is highly gregarious organization and by exposing them to the risk of getting infected by this greatly contagious virus, it compromises our country’s defense. The Government should be cool headed and be visually clear on what is at stake.


* 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.


For further details or enquiry, please contact our partner:

CK Lew

cklew@haemelew.com

+603-8408 9189 (Ext: 102)

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