Since the announcement by the Prime Minister of Malaysia, Tan Sri Muhyiddin Yassin on 16.3.2020 on the implementation of the Movement Control Order nationwide, many regulations have been implemented under the Prevention and Control of Infectious Diseases Act 1988 (“the Act”) to prevent and curb the spread of COVID-19. 

This article explores and summarizes the regulations implemented by the Government since 18.3.2020, both new and revised, under the Act to restrict movement and  gatherings nationwide from what the Government has termed as the Movement Control Order (MCO), then the Conditional Movement Control Order (CMCO) and finally, the Recovery Movement Control Order (RMCO).

This article also briefly discusses the enforcement of the regulations and standard operating procedures (SOPs) issued by the National Security Council of Malaysia.

Movement Control Order (MCO)

On 16.3.2020, the Prime Minister of Malaysia, Tan Sri Muhyiddin Yassin enforced the Movement Control Order nationwide beginning from 18.3.2020 until 31.3.2020 (“Movement Control Order (MCO)”). New regulations were passed under the Act to implement specific measures during the enforcement of the Movement Control Order (“Regulations No. 1”).

In essence, Regulations No. 1 restricts movement and gatherings nationwide. Restrictions on movement included travel bans nationwide (unless necessary to procure or supply essential goods and services such as food, daily necessities and healthcare) and international travel bans (except for residents returning to Malaysia). Gatherings for any purposes, whether religious, sports, recreational, social or cultural purposes were prohibited. Funerals were allowed to take place, but attendance was  restricted to a “minimum” (note that “minimum” was not defined under the regulations).

All educational institutions, including schools, colleges, universities and kindergartens nationwide were required to close. All government and private premises were also closed (except those which were involved in supplying essential services such as food, water, electricity, oil, gas, fuel, banking, health, prisons, security and defence).

On 25.3.2020, the Movement Control Order was extended from 1.4.2020 to 14.4.2020.

On 31.3.2020, new and revised regulations were passed to implement new and revised measures for the extended Movement Control Order from 1.4.2020 to 14.4.2020 (“Regulations No. 2”).

Stricter travel restrictions were implemented, including among others, restricting travel for food, daily necessities and healthcare to only within a radius of not more than ten kilometres from a person’s residence, and such travel was restricted to only one person at a time, unless reasonably necessary to be accompanied by another person. Those who were involved in supplying essential services were allowed to travel from their residences to their workplaces. However, they were required to produce an authorization letter from their employers if so required by the police officer on duty. During this extended Movement Control Order, the Government allowed those who were involved in providing infrastructure-related services to carry out works if such services were necessary for the supply of essential services.

On 14.4.2020, the Movement Control Order was extended again from 15.4.2020 to 28.4.2020, followed with the implementation of new and revised measures which were essentially the same as Regulations No. 2 (“Regulations No. 3”).

On 28.4.2020, the Movement Control Order was yet again further extended from 29.4.2020 to 12.5.2020, followed with the implementation of new and revised measures which were slightly less restrictive compared to the earlier regulations (“Regulations No. 4”). Single-traveller restrictions were lifted, and those who were travelling to procure food, daily necessities or healthcare could be accompanied by one family member staying in the same house.

Conditional Movement Control Order (CMCO)

Five days later, on 3.5.2020, the Government revoked Regulations No. 4 and issued new and revised regulations effective from 4.5.2020 to 12.5.2020 (“Regulations No. 5”). The Government then termed such period as under the enforcement of the “Conditional Movement Control Order”.

Effective from 4.5.2020, a person was allowed to travel for work purposes (in addition to buying or procuring food, daily necessities and healthcare). Most of the activities prohibited by Regulations No. 4  were still prohibited such as religious, cultural and art, entertainment, leisure and recreational activities and business activities which may cause a crowd to gather. Barbershops and beauty salons, filming activities, and tourism services also remained prohibited.

However, “crowd” was not expressly defined in the regulations.

Under Regulations No. 5, no person was allowed to travel to places which were enforced under the “Enhanced Movement Control Order” except for those who provide healthcare and medical services or permitted by the police to do so.

“Enhanced Movement Control Order”, according to Regulations No. 5, refers to “a direction given by an authorized officer under subsection 11(3) of the Act”. Subsection 11(3) of the Act is reproduced as follows:

(3) During the continuance in force of an order made under subsection (1), it shall be lawful for any authorized officer to direct any person or class or category of persons living in an infected local area or in any part thereof to subject himself or themselves-

(a) to treatment or immunization;

(b) to isolation, observation or surveillance, the period of which being specified according to circumstances; or

(c) to any other measures as the authorized officer considers necessary to control the disease.

Similar to earlier regulations, a person was required to obtain written permission of the police officer in charge of the police station nearest to his/her house if he/she needs to travel for any other purposes allowed under the regulations. Regulations No. 5 also expressly stated that if any person is stranded at any place due to the Conditional Movement Control Order, he/she has to return home.

Regulations No. 5 also allowed funeral attendance with a limit of 20 people. Instead of travelling together in pairs only, Regulations No. 5 allowed a private vehicle to carry a maximum of four persons but was restricted to those staying in the same house only. Public transportation was also allowed to operate but was prohibited from carrying more than half of the total maximum capacity of passengers. However, hire cars, taxi cabs, airport taxi cabs, limousine taxi cabs or e-hailing vehicles were not allowed to carry more than two passengers.

Recovery Movement Control Order (RMCO)

On 10.5.2020, the Prime Minister announced that the Movement Control Order was extended from 13.5.2020 to 9.6.2020, during which movement and gathering restrictions were less strict compared to Regulations No. 5.

New and revised measures were implemented through new and revised regulations (“Regulations No. 6”) which were gazetted on 12.5.2020.

A significant change included allowing travel from one place to any other place within Malaysia for work purposes, except to and from places which were under the implementation of the “Enhanced Movement Control Order”.

House visits and gatherings were also allowed for Hari Raya Puasa, Pesta Kaamatan and Gawai Dayak Day celebrations but “subject to such directions of the Director-General”. Further, attendance at funerals was no longer limited to “a minimum” but to be kept to less than twenty people.

Regulations No. 6 included a new provision which dealt with “directions of the Director-General”. The new provision is reproduced as follows:

“The Director General may issue any direction in any manner, whether generally or specifically, to any person or group of persons to take such measures for the purpose of preventing and controlling any infectious disease including any direction to any person or group of persons carrying out, organizing, undertaking, or who is otherwise involved in, any other than a prohibited activity”.

In addition to the above, travel by air to and from Peninsular Malaysia, and Sabah and Sarawak were allowed for work and supply of essential services. Flights from Peninsula Malaysia to Sabah and Sarawak were allowed to carry the total maximum capacity of passengers on board. However, flights from Sabah and Sarawak to Peninsula Malaysia were only allowed to carry not more than 66.6% of the total maximum load factor. 

To prevent and curb the spread of COVID-19 in Sarawak, where cases were on a rising concern at the material time, Regulations No. 6 prohibited a person to travel from one district to another district within the State of Sarawak, unless with the written permission of the police officer in charge of the police station nearest to that person’s residence.

Another significant point to note is that Members of the Parliament and State Assemblies were allowed to attend parliamentary sittings and state assemblies. Prohibited activities which were previously listed in Regulations No. 5, such as entertainment, leisure, sports, recreational and business activities which may cause a crowd to gather, and barbershops and beauty salons were still not allowed to take place.

On 22.5.2020, Regulations No. 6 were amended (“Amended Regulations No. 6”) by which congregations at places of worship were allowed and no longer categorized as “prohibited gatherings” under the earlier regulations. However, such congregations and gatherings were subject to directions issued by the Director-General under the regulations.

The restriction on the number of passengers allowed on board for public air transport from Peninsula Malaysia to Sabah and Sarawak was also lifted. Tourism services were also allowed to operate as they were no longer on the list of prohibitory activities under the Amended Regulations No. 6.

On 9.6.2020, the Government extended the Movement Control Order from 10.6.2020 to 31.8.2020 with new and revised measures to the existing measures in the Amended Regulations No. 6 (“Regulations No. 7”) and such period was termed as the “Recovery Movement Control Order”.

Public transport was allowed to operate at full capacity as long as it was “in accordance with the directions issued by the Director-General”. Significantly, barbershops were no longer listed on the list of prohibited activities, and only contact sports (instead of what used to be termed as “entertainment, leisure, sports and recreational activities which may cause crowds”) were still prohibited. Swimming pool activities for the training of national athletes participating in the Tokyo Olympic Games 2020, in  private residences and tourist accommodation premises, were also allowed.

Notably, “Any activity with many people in attendance at a place making it difficult to carry out social distancing and to comply with the directions of the Director-General” was added to the list of prohibited activities under Regulations No. 7.

However, “many people … making it difficult to carry out social distancing and to comply with the directions of the Director-General” was not defined or explained.

On 30.6.2020, Regulations No. 7 was amended (“Amended Regulations No. 7”) by which the following activities were allowed and removed from the list of prohibited activities:

(a) water theme park and water park activities;

(b) swimming pool activities;

(c) activities in karaoke centres, children’s playground in shopping malls and family entertainment centres;

(d) clothes fitting rooms; and

(e) reflexology and massage activities in health and beauty establishments.

On 14.7.2020, the Amended Regulations No. 7 was amended again (“Amended Regulations No. 7 (2nd Amendment)”) to allow sports events and tournaments but without the presence of spectators or participants from overseas. Contact sports and cruise ship activities were also no longer prohibited.

On 28.7.2020, the Amended Regulations No. 7 was amended for the third time (“Amendment Regulations No. 7 (3rd Amendment)”) by which those who enter Malaysia from overseas and are directed to undergo home quarantine are required to wear a wristband provided by the authorized officers.

On 30.7.2020, the Amended Regulations No. 7 was amended for the fourth time (“Amendment Regulations No. 7 (4th Amendment)”) which imposed stricter travelling restrictions within the State of Sarawak from 1.8.2020 to 14.8.2020. No one was allowed to move from one zone to another except with the written permission of the police officer in charge of the police station nearest to his/her residence. The “zones” were determined and categorized as “red”, “yellow” and “green” by the Director of Health of the State of Sarawak.

On 29.8.2020, the Government extended the Recovery Movement Control Order from 1.9.2020 to 31.12.2020, together with the implementation of new and revised measures implemented (“Regulations No. 8”) (which are still enforced as at the date of this article).

Under Regulations No. 8, travel and gathering bans are removed except travel to and from places under the “Enhanced Movement Control Order”. The earlier regulations governing health examination upon arrival in Malaysia, home quarantines and processions still apply. More significantly, only the following activities remain prohibited:

(a) Sports event and tournament with spectators in attendance, and sports event and tournament involving participants from overseas entering Malaysia;

(b) Outbound tour activities by a citizen and inbound tour activities involving foreign tourists entering Malaysia except for foreign tourists from countries specified by the Minister of Health;

(c) Activities in pubs and nightclubs, except restaurant business in pubs and nightclubs; and

(d) Any activity with many people in attendance at a place making it difficult to carry out social distancing and to comply with the directions of the Director-General.

On 1.10.2020, due to the rising number of COVID-19 infections at the material time, the Government amended Regulations No. 8 to tighten travel restrictions in Sabah (“Amended Regulations No. 8”). No person is allowed to travel from one district to another district in Sabah except with the written permission of the police officer in charge of the police station nearest to that person’s residence.

As COVID-19 cases increased at an alarming rate, on 7.10.2020, the Government made further amendments to the Amended Regulations No. 8 (“Amended Regulations No. 8 (Second Amendment)”). With the new amendments, from 12.10.2020 to 25.10.2020, no person is allowed to travel from the State of Sabah to the State of Sarawak, Federal Territory of Labuan or any state in Peninsula Malaysia except with the written permission of the police officer in charge of the police station nearest to that person’s residence.

On 27.10.2020, as the number of COVID-19 infections continued to rise, the Government extended the period from 27.10.2020 to 9.11.2020 (“Amended Regulations No. 8 (Third Amendment)”) to restrict travel from the State of Sabah to the State of Sarawak, Federal Territory of Labuan or any states in Peninsula Malaysia.

Consequences of breaching the regulations

We have previously laid out the consequences of breaching the Movement Control Order in our article here

As set out in our article, if a person is convicted for breaching any of the regulations, that person will be liable to a fine of not exceeding RM1,000 or to imprisonment for a term not exceeding 6 months, or to both. The same penalty applies to a company that fails to comply with the regulations.

To our knowledge, the penalty for breaching the regulations enforced during the Movement Control Order, Conditional Movement Control Order or Recovery Movement Control Order remains the same to date.

Arrests for failing to comply with the regulations

It is widely reported in the news reports and press statements by the Senior Minister of Defence, Datuk Seri Ismail Sabri Yaakob that hundreds of people are arrested each day for allegedly breaching regulations and/or SOPs enforced during the MCO, CMCO, and RMCO.

On 15.4.2020, it was reported that a total of 14,922 individuals were arrested and detained for breaching regulations and/or SOPs enforced during the MCO, CMCO, and RMCO. According to the Federal Criminal Investigations Department director Commissioner, Datuk Huzir Mohamed, a total of 5,830 individuals were charged in Court. On 24.4.2020, it was reported that a total of 19,049 individuals were arrested for defying the Movement Control Order and/or for obstructing public servants from discharging their duties. 

Recently, on 26.10.2020, it was reported that the Royal Malaysia Police (Polis Diraja Malaysia/PDRM) arrested 857 individuals for breaching regulations and/or SOPs enforced during the Recovery Movement Control Order. According to the Senior Defence Minister of Malaysia, Datuk Seri Ismail Sabri Yaakob, most of them were issued a compound, whereas 10 of them were arrested and remanded.

According to him, those individuals were found to have breached the RMCO by failing to wear a face mask (196 individuals), participating in activities in entertainment centres (183 individuals), failure to provide materials or devices for contract tracing registration (175 individuals), failure to practise “social distancing” (172 individuals), and premises which operated beyond permitted hours (53 individuals).

A few days later, on 31.10.2020, it was reported that 456 individuals were arrested for committing the same offence.

What does the law say about arrest?

Pursuant to the third column of the First Schedule to the Criminal Procedure Code (“CPC”), offences which are punishable with an imprisonment term of less than 3 years are “non-seizable” offences. A person cannot be arrested without a warrant for allegedly committing a non-seizable offence.

The offence for breaching the Regulations is a non-seizable offence because it is an offence which is punishable with a fine not exceeding RM1,000, or to imprisonment for a term not exceeding 6 months, or to both. Therefore, in our opinion, police officers are not allowed to arrest individuals for breaching the regulations and/or SOPs without a warrant. They are, however, empowered under the regulations implemented under the Act to, among others, issue a compound notice requiring the offender to attend Court on a specified date, or to pay a fine not exceeding RM1,000.

Therefore, it is questionable whether it is lawful to arrest and detain such individuals under the regulations and the Act.

Chin Chee Wei v Public Prosecutor [2020] 5 CLJ 640

This is the first reported case relating to committing an offence under the regulations.

On 2.4.2020, two individuals were arrested and jointly charged at the Sungai Siput Magistrates’ Court for breaching Regulations No. 2. They were found on a motorcycle carrying fishing rods near a fishing pond at Sungai Siput. Both the accused pleaded guilty and were convicted and sentenced to three months’ imprisonment.

Counsel for the accused applied to the Taiping High Court for a review of the sentence passed by the Sungai Siput Magistrates’ Court. The matter was then brought to the attention of the Taiping High Court Judicial Commissioner, Muniandy Kannyappan at the material time, and his Lordship decided to exercise its revisionary power provided under Section 323 of the CPC to review the sentence passed by the Sungai Siput Magistrates’ Court.

Upon perusing the Court’s records, his Lordship found that the law enforcement officials had not acted in excess of their powers nor  abused it, but as part of policing, they had gracefully tendered their friendly advice to the duo. The accused would not have had to succumb to the arms of the law if they had heeded the police officers’ advice and returned home. Instead, they defied the police officers’ request, which then led to their arrest.

However, his Lordship found that the sentence of three months’ imprisonment was harsh and severely excessive. After taking into consideration the nature of the breach, the prevailing plea in mitigation advanced by the accused as well as public interest that needs to be protected, his Lordship exercised its powers to revise the sentence to a compulsory attendance order under s. 5(1) of Offenders Compulsory Attendance Act 1954, requiring both the accused to attend daily at the Perak Compulsory Attendance Centre and to undertake compulsory work for a period of three months for four hours each day. To ensure compliance with the order, both the accused were to enter into a bond with one surety for an amount of RM500.

The High Court held that a fine would be inappropriate, as the accused were daily wage earners who were not gainfully employed during the MCO. The High Court also opined that the revised sentence of compulsory attendance order would strike a balance between public interest which the regulations intend to preserve and protect and the interest of the accused persons.  The following is an excerpt from the High Court’s grounds of judgment:

“Albeit, violation of the MCO by the accused persons, is the worst act of indiscipline, at this prevailing period of time, coupled with the act of defiance on their part, which the public in general cannot fathom, it is also unfathomable for the accused persons as violators to remain in an overcrowded prison, where social distancing is near to an impossibility. The prison doors shall remain closed shut behind for only prisoners who have committed heinous crimes. Under current circumstances, the public has no greater interest than that the accused persons who are violators of the MCO be “quarantined” at home pending compliance with the compulsory attendance order imposed.”

Based on the High Court judgment in Chin Chee Wei v Public Prosecutor above, it appears that a police arrest is lawful if a person is caught having breached the regulations and thereafter, defies the police officer’s order to return home, or to comply with the regulations implemented under the Act.

Conclusion

It appears that the regulations passed by the Government are not as detailed as many would expect them to be. Regulations which were implemented or amended since the implementation of Regulations No. 6 make many references to “subject to the directions of the Director-General” which confers a wide range of discretionary power on the Director-General.

“Director-General” in the Regulations refers to the “Director General of Health” as defined under the Act. Presently, the Director-General of Health of Malaysia is Tan Sri Dr Noor Hisham Abdullah.

However, to our knowledge, the Director-General of Health of Malaysia has not issued nor published any “specific directions” as the Regulations had stated (refer to the provision in the Regulations reproduced above) apart from the general directions relating to among others, wearing face masks in public places, and practising “social distancing” of staying 1-metre apart.

Further, the Regulations do not appear to have referred to directions issued by the National Security Council (“NSC”) and/or the Senior Defense Minister of Malaysia, Datuk Seri Ismail Sabri Yaakob.

To our knowledge, and to date, no regulations were passed for the recent enforcement of the Conditional Movement Control Order (CMCO) in Selangor, Kuala Lumpur and Putrajaya from 14.10.2020 to 27.10.2020 (and now extended to 9.11.2020). Such enforcement was only announced by the Senior Defense Minister of Malaysia, Datuk Seri Ismail Sabri Yaakob on 12.10.2020.

Hence, the question of whether the directions and “standard operating procedures (SOPs)” issued by the NSC through press statements or NSC’s official website are considered to be “directions issued by the Director-General”, remains to be answered. Similarly, it remains unanswered whether it is lawful to arrest, detain or charge a person who breaches such SOPs.

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Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.