Malaysians against Death Penalty and Torture (Madpet) is perturbed that the Malaysian government may have quietly and wrongly resorted to using the draconian National Security Council Act 2016 in the combat to curb and defeat the coronavirus threat. In recent days, the National Security Council (NSC), under the NSC Act, seemed to be making decisions and issuing orders on coronavirus-related issues. The Ministry of Health’s authority may be ousted by the NSC.
The new Prime Minister, Muhyiddin Yassin and several members of Parliament formerly from Pakatan Harapan may have forgotten their promises before the last general elections to abolish – not repeal – the NSC Act.
Phone alerts and messages, previously seem to have come from the Ministry of Health, seem to be now coming from the NSC (MKN).
The NSC may be wrongly taking over power and control from the Ministry of Health, which is really the responsible Ministry under the Prevention And Control Of Infectious Diseases Act 1988.
Change minister if unhappy, but do not take over power of Ministry of Health
There is no problem for the prime minister, the Malaysian cabinet or even Parliament to set up any special taskforce or cabinet committee to assist and do what is ncessaryl to assist the Ministry of Health – but certainly not the NSC, formed under the NSC Act.
Heath ministry of Health is not even in NSC
The NSC, which is very specific about its composition, does not even include the Ministry of Health.
The NSC members, according to the Act, are only the prime minister as chairman, the deputy Prime minister as deputy chairman, the defence minister, the home affairs minister, communication and multimedia minister, the chief secretary to the government, the chief of defence forces and the inspector general of police.
The health minister is not in the NSC; neither is the health director general.
Further, the NSC Act should not even come into play as this is not a “national security” situation as envisaged or covered by the act.
Malaysia already have a law for this specific situation or concern, and there is no need to resort to any other Acts including the National Security Council Act (NSC Act).
Prevention and Control of Infectious Diseases Act – the applicable law
At present, Malaysia is responding to the coronavirus threat by resorting to the specific Act, that is meant to deal with this kind of situation, ie the Prevention And Control Of Infectious Diseases Act.
Pursuant to this act, two orders were issued:
- the Prevention And Control Of Infectious Diseases (Declaration Of Infected Local Areas) Order 2020 (PU(A) 87/2020)
- the Prevention And Control Of Infectious Diseases (Measures Within The Infected Local Areas) Regulations 2020 (PU(A) 91/2020
The ministry responsible under the Prevention And Control Of Infectious Diseases Act is reasonably the Ministry of Health, and it comes under the health minister.
If the prime minister chooses, he can reshuffle the cabinet, remove the current minister and appoint a new minister or alternatively put himself in charge of the Ministry of Health.
The first order declares the whole of Malaysia as being the “infected local area”.
The second, the regulations (PU(A) 91/2020), lay out in detail the restrictions in place, which also includes what businesses, agencies and premises are allowed to operate during this period – only those providing essential services. The schedule provides a detailed list.
(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.
The schedule listing “essential services” states:
22. Any services or works determined by the Minister as essential or critical to public health or safety.
As is most clear, any exemptions will need the “prior written permission of the Director General”, and the act is clear that this refers to the director general of health.
It is sad that the law is allegedly broken now, when other ministers or government bodies – possibly without even the “written permission of the Director General” – are seen to be allegedly exempting and allowing some premises that do not clearly fall within the detailed list of “essential services” to continue to operate.
Violations of the law by other ministers, ministries, government agencies?
One possible example of this is when Plantation Industries and Commodities Minister Mohd Khairuddin Aman Razali was reported as saying that workers in the plantation and commodities sector have been exempted from the movement control order and are allowed to resume their work activities (Bernama, 19 March 2020). There is a question of whether the minister even obtained the required “prior written permission of the Director General”, which should also include conditions.
Likewise, some companies may also be seeking exemptions from other ministries and even the Ministry of International Trade and Industry, which is wrong, as any permission or exemptions must only be sought from the director general of health.
Additional restrictions permissible – but not anything in violation of order, regulations under act
While the federal, state and local governments may rely on other laws to impose additional restrictions, they should never do anything that countermands, undermines or violatse the orders and regulations made under the Prevention And Control Of Infectious Diseases Act.
Use of armed forces wrong, a violation of law?
Madpet opposes the use of the armed forces and states that if there is insufficient police and enforcement officers to deal with the situation, there are so many other options available like the using of recently retired enforcement officers, voluntary corps and all other public servants in ministries and departments not involved in the provision of “essential services”.
Section 5 of the Prevention And Control Of Infectious Diseases Act also provides that the “police, customs and immigration officers and officers from other government departments and agencies shall render such assistance as any authorized officer may request for the purpose of enabling him to exercise the powers vested in him by this Act or the regulations made under this Act”. There is no mention of the armed forces.
Deterrent sentences under the act: Prison terms to directors, owners – not compounds or fines
The Prevention And Control Of Infectious Diseases Act should be used against all violators of this law. The penalty now in respect of even a first offence is imprisonment for a term not exceeding two years or a fine or both, and the penalty is higher for repeat offenders.
For companies that violate the act, and continue operating, prosecution shall be taken against all directors and owners, not just the company, and a prison term would be a more effective deterrent instead of mere fines. Fines or compounds against companies that continued operating and exposing workers (and their families) to the coronavirus threat may be simply inadequate.
Disclose names of perpetrators, especially companies, instead of hiding them
It was reported that an unnamed construction company was allowed to “compound” their offence by paying RM50,000 for violating the restrictions against operating during this period, but no action was taken under the Prevention And Control Of Infectious Diseases Act.
The compound was issued under Section 70 (13) of the Road, Drainage and Building Act 1974 (Act 133) (The Star, 19 March 2020).
Violators of the Prevention And Control Of Infectious Diseases Act and the regulations in place to combat the coronavirus must be prosecuted under that law – and not some other law – and compound should not be offered to perpetrators. They should all be charged and tried in open court.
- Madpet reiterates its call for the abolition of the draconian NSC Act and for the dissolution of the NSC formed under this act
- Madept also calls for the setting up of a cabinet or parliamentary committee, which shall include the Ministry of Health, to assist the ministry in implementnig the orders and restrictions imposed under the Prevention And Control Of Infectious Diseases Act
- Madpet urges the authorities to respect and protect human rights at all times
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)