Understanding the amendments to Act 342 (20 Dec 2021)

 Amendments to the Prevention and Control of Infectious Diseases Act 1988 (Act 342) have triggered heated reactions within the Dewan Rakyat and also from the public, where netizens and activists have mobilised to oppose the amendments to Act 342. The arguments largely (if not solely) focus on penalties for offences under the Act: (1) the maximum amount of compound fine to be issued to an individual and a corporation; and (2) increasing the maximum fine and jail sentence in a “general penalty” provision.

I would like to share my views after going through all the amendments proposed in the amendment Bill for the first reading in Parliament.

It is important to first consider the objectives and functioning of all the amendments and to understand the existing weaknesses, limitations and gaps of the parent Act 342. This 32-year-old law has had 6 amendments in the past, but all merely to add new infectious diseases to the list in the First Schedule, the latest being Coronavirus Disease 2019 (COVID-19) in June 2020. Now it is time to update some practical and necessary changes to the Act.

To be fair, the proposed amendments to Act 342 are a response to COVID-19 because this still ravaging virus with its various mutations is very much unlike the other 29 diseases on the list. The challenges are massive – it is unprecedented, a disease which has claimed more than 31 thousand lives and infected 2.7 million people in Malaysia. There are numerous complaints or grievances against government officials regarding the handling of the pandemic, namely in terms of testing, tracing, quarantine, surveillance and monitoring of the disease, as well as enforcement of Standard Operating Procedures (SOP). The Ministry of Health (MOH) workforce has been severely strained in terms of performing their duties on all these procedures.

When the Emergency was declared in January, the National Security Council (Majlis Keselamatan Negara, MKN) was the chief decision-making body. Confusion and conflict often arose in public due to many inconsistent policies that were churned out owing to multiple considerations besides public health. These sometimes compromised or undermined the effectiveness of COVID-19 disease prevention and control measures under the jurisdiction of MOH. Now, the emergency period is over, the emergency ordinance has ceased to be in effect, and Act 342 leaves MOH with inherent constraints and uncertainties.

Overall, the nature of the proposed amendments indicates that MOH is seeking to fill the gaps based on the lessons learnt from battling the pandemic over the past 2 years, while preparing for the new challenges ahead. The emergence of the Omicron variant is a stark reminder that COVID-19 is far from being under control. In its present form, Act 342 is insufficient to deal with present and future pandemic-related health threats. The amendments are thus necessary to allow the MOH to act in the current crisis and in other new or emerging public health crises.

At the same time, SOP flouting and non-compliance among certain sections of society (e.g. some individuals, corporations and organisations or groups) has caused many cases, clusters and even deaths. The risks and consequences associated with cases of SOP flouting are well-documented. Without good and effective disease control, the burden of public resources to Find-Test-Trace-Isolate-Support and the unnecessary loss of lives are the sources of public frustration and distrust of government. No Act will be taken seriously if it does not ensure the proportionality of penalties (i.e. right amount of deterrence) on those who do not comply, and if the law is not enforced reasonably, fairly and effectively.

 This background understanding of the issues is crucial to assess the urgency for the amendments to be adopted within this Parliament sitting. The rapid transmissibility of the Omicron variant looks increasingly obvious.  In South Africa, it has totally dominated and ‘dethroned’ the Delta variant. As of 18 December, 13 Omicron cases were reported in Malaysia. A new wave of the pandemic is looming on the horizon, especially now when more people have started to socialise and mingle more freely due to gatherings and events in the holiday period.

Although the disease severity caused by the Omicron variant is reportedly lower, if the spread of the disease (even among fully vaccinated persons) is not well controlled, the price of negligence will be a surge in devastating new transmission peaks, and rising death numbers, once again adding to the social cost and disruption. The public must do its utmost to safeguard against COVID-19 “fatigue” - extra vigilance is now a key priority.

Let us now look at the amendments. The amendments to Section 2 update the definitions of the responsible officers, replacing ‘health inspector’ with ‘Environmental Health Officer or any suitable person’. This new definition retains local authorities to help in enforcing the Act.

There are two amendments to Section 10(2): First, medical practitioners are required to report any suspected case of infection to the health authority, even if it is not yet confirmed with a laboratory test. This would allow time for the health authority to respond faster with a quarantine order to prevent further spread of a disease. There are, however, concerns that failure to do so could trigger a compound fine.

Secondly, the restrictive reference to ‘the forms (‘borang’) determined by the regulation orders under the Act’ is replaced by ‘whichever form (of document) determined by the Director-General (DG) of Health’.  In rapid responses to many new situations where more documents have to be produced for different functions, it makes sense to not have to wait for the Health Minister to gazette new regulations for various forms.

The current Act only recognises ‘quarantine station’ while home quarantine is now an acceptable part of COVID-19 pandemic response. Hence, the addition of a new Section 14A.  There are concerns that under Section 14A(2), ‘an officer is given authority to use necessary force (‘kekerasan’)  to ensure the (quarantine) order is complied with’.  To be fair, this is already in the existing Section 15(2). The government could consider adding another word ‘reasonable’ (‘munasabah’) and give examples in the regulation concerning the new Section 14A(2).  While there are documented cases of home quarantine orders being disobeyed thus posing infection risk to the local community, allowing the use of force has to be accompanied with checks.

Next, a new Section 15A is proposed to order confirmed patients, or suspected cases or any (close) contact to wear a tracking device for monitoring purposes. This is an important tool for monitoring the compliance of home quarantine orders, and this was not envisaged 32 years ago when Act 342 was passed.

The new Section 21A (in Part IV of the Act concerning controlling the disease spread) empowers the DG of Health to give any general or specific instruction to any individual or group for preventing the disease spread, and any violation of such instruction is considered an offence. This allows some flexibility for the health authority to give new instructions adapting to changing situations. While there are concerns that this can be abused, however there could also be situations where the DG has to act swiftly and intervene by giving instructions; how does one deal with non-adherence with the instruction order then?

There is a new Part IVA called Enforcement (‘Penguatkuasaan’) which confers the necessary investigation power to the officer enforcing the Act, following Criminal Procedure Code (subsection 21B), as well as requiring people to provide any information relating to disease control and prevention to the officer (subsection 21C). This new Part IVA seeks to empower officers of MOH and others under the Act to contribute to more effective enforcement with relevant and important information to help contain the disease spread.

The new Section 22A creates a new category of offenders: body corporate (pertubuhan perbadanan). The current Act 342 only covers individuals who are responsible, thus there is no legal ground to take action under the Act against a company which consists of many decision makers including directors and managers who should be responsible for the non-compliance of SOP and subsequent consequences. Section 22A(2) also covers the person or agent in charge of workers, and they have to take individual responsibility. The current Act does not distinguish among these categories of actors, so the maximum compound fine is only RM1,000 for a responsible individual.

Last year, when a glove factory in Klang was reported for flouting SOP, they could only be slapped with RM1,000 fine, and this incident had sparked public outcry. The Prime Minister’s 100 day report card event organiser could also only be fined RM1,000 recently for clearly violating SOP, and the public also fumed and cried ‘double-standards’. But that is the maximum compound fine. If we factor in general inflation, RM1,000 in 1988 would have been RM2310 today (by Oct 2021).

So that is exactly the shortcoming of the current Act, and most, if not all, of the public agree that a RM1,000 fine is ridiculously low for such a scale of SOP violation. So, I would expect that most would agree to raise the penalty amount, but what is in contention is only the quantum. It is important to acknowledge this common understanding first, that a law needs to have proportionate penalties imposed on the offenders so that the law would have some reasonable deterrent effect and serve justice by ensuring that those who irresponsibly pass risk and public health threat to the local community are made liable.

Concerns have also been raised on the reversal of burden of proof in Section 22A. Again this is common in laws that establish corporate liability. The check is that the corporation can prove the offence was committed without its knowledge or consent and it had taken all reasonable steps and made all appropriate efforts to prevent the occurrence of the offence and this is provided in Section 22A, too.

Now we come to the final 3 amendments that have seen the most protest.

The first draft proposed to amend Section 25 for the health authority to issue a compound fine for the offence committed by an individual (maximum RM10,000) or corporation (maximum RM1 million). The government has since revised down to RM500,000 for corporations and RM1,000 for individuals as of 16 December.

The draft to amend Section 24 on General Penalty for ‘any persons who commit an offence under the Act for which no penalty is expressly provided’ proposed that for an individual, the fine amount does not exceed RM100,000 or 7 years’ imprisonment or both. In response to concerns and protest, MOH on 16 December offered to lower this to a maximum of RM2,000 or 2 years’ imprisonment or both. The penalty for corporations is a fine not exceeding RM 2 million.

Lastly, Section 31 deals with the power of the Minister of Health to make regulations. The first amendment draft proposed to add a new Subsection 31(3) whereby any violation of regulations can be an offence which carries a fine not exceeding RM50,000 or 2 years’ imprisonment or both. The government has now proposed to adjust the amount to a maximum of RM1,500 or 2 years’ imprisonment or both for individuals. For corporations, the maximum fine is RM 1 million.

It should be noted that except for compound fines, the other penalties are imposed by the Courts, meaning that the individual or corporation concerned will have to be charged with an offence under Act 342 and a trial then follows.

Perhaps what seems to have escaped public attention is the fact that the MOH will use a three-tiered penalty system for compound fines, according to the seriousness of the offence. That means, most people might be wrongfully assuming that they would be imposed with the maximum fine compound for small offenses such as not wearing a mask in a public mandated area or not registering one’s information for checking in premises (e.g. using MySejahtera). Let us not assume that the maximum fine will be imposed in every case.

For clarity and to quell public concerns, the government could provide an indicative list of offence categories and the corresponding range of compound fines. However the latest compromise is RM1,000 maximum compound fine for individuals.

Some objections compare the maximum penalty with Penal Code such as homicide attempt and causing death by negligence, implying that the maximum penalty quantum is unjust, excessive and disproportionate. I beg to differ here.

From March to September 2021, just for workplace category alone there were 2,369 clusters, resulting in 195,130 cases and 522 deaths. On average every cluster has seen 82 cases, resulting in one death for 4.5 clusters. The largest outbreak during this period was the Senawang Industry Cluster, with 2,178 cases and 15 deaths recorded.

Could there not have been SOP violations or negligence on the part of employers which caused the loss of lives and the suffering of their employees or their loved ones? Any corporation or employer responsible for this harm or loss to their staff also violates an established principle of the Right to Life and Livelihood, i.e. that working conditions must be safe, healthy, and not demeaning to human dignity. What if the extent of harm was high in terms of hospitalisation, ICU and even deaths? And what if the employers are frequent or repeated offenders? Is the maximum penalty being proposed really disproportionate or excessive compared to a case of causing death by negligence?

The COVID-19 pandemic is already a tragedy for many families. If there are some irresponsible parties that caused or contributed to this, why is it not just to impose higher compound fines or haul them to court with higher penalties? If the maximum quantum is not just, the objectors should propose and justify their numbers as well. Expanding the scope of the Act to corporations can also be accompanied with fairness, distinguishing small businesses from big corporations.

It is understandable that there is distrust of the enforcement authorities, as seen from the instances of maximum compounds for minor offences and double standards in treatment of politicians during the Emergency period. While I do not condone arbitrary use or abuse of power, I also recognise the urgent need to ensure that Act 342 provides the necessary legal basis and proportionate penalties to deal with epidemics and pandemics.

In conclusion I urge the public to look at the Act 342 amendments holistically, understand and support the need for the amendments. The government, opposition lawmakers and civil society groups can still discuss the quantum for the maximum general and compound penalties, as well as other concerns, but the clock is ticking. To face the next impending wave of the pandemic, the government definitely needs the amendments by Monday, not next March.

 

 Published also in:

The Malaysian Insight

The Malay Mail

The Sun Daily (Part 1) (Part 2)


Supported by Hafiz Hassan in his column article on 20 Dec 2021