When Khairy Jamaluddin took office as health minister in late August, he appeared to quickly grasp the nature of the Covid-19 pandemic and the impossibility of containing the extremely contagious disease.
He prepared the country for transitioning into an endemic phase, meaning to live with Covid-19 as a permanent disease in Malaysia for the foreseeable future, much like dengue, with a continued level of infection that does not overwhelm the health care system.
Since late August, daily Covid-19 cases, deaths, and hospital admissions in Malaysia have been declining. National hospitalisation and intensive care unit utilisation rates are currently below 65 per cent and 61 per cent respectively, even as the country has largely reopened. Public hospitals appear to be coping well with Covid-19.
So, it was an utter shock to discover that Khairy is planning to table draconian amendments to the Prevention and Control of Infectious Diseases Act 1988 (Act 342) that raise compounds of offences 10- to 1,000-fold.
Proposed amendments to Act 342 – which is the main law used to criminalise breaches of Covid-19 rules like not wearing face masks, not practising physical distancing, and engaging in prohibited activities like visiting crowded places, or pubs or nightclubs – impose maximum compounds of RM10,000 and RM1 million for individuals and corporate bodies respectively. The current Act 342 only imposes a maximum RM1,000 compound for all offenders alike.
General penalties upon conviction of offences under the Act 342 amendment Bill are increased to a jail sentence of up to seven years, a maximum RM100,000 fine, or both for individuals, as well as a maximum RM2 million fine for corporate bodies.
These punishments upon conviction for acts like having a drink at a pub, attending a crowded convention, pulling down one’s face mask to take a breather, or not standing far away enough from someone else are equivalent to or are even harsher than penalties for violent crimes.
The proposed seven-year jail term for violating Covid-19 SOPs upon conviction is equivalent to the punishment for voluntarily causing grievous hurt, criminal intimidation with threats to cause death or grievous hurt, kidnapping, abandonment of children aged under 12, theft, attempted robbery, and attempt to commit culpable homicide (if hurt is caused).
Besides the disproportionate penalties for flouting Covid public health measures, other proposed amendments to Act 342 also display a fascist approach in treating infection with the virus like a crime.
Section 14A authorises enforcement officers to “use force if necessary” to compel the quarantine of individuals suspected or confirmed to be infected with an infectious disease. Does the government plan to have police brandish firearms at people who are reluctant to enter a quarantine facility or to self-isolate at home?
Section 22A of the proposed amendment Bill of Act 342 imposes a presumption of guilt on corporate bodies that must prove an offence was committed without its knowledge or consent, or that it had taken all reasonable measures to prevent the commission of the offence. This is not unlike the use of presumptions under the Dangerous Drugs Act that places the burden of proof on the accused to prove innocence in drug trafficking.
The other disturbing element of the proposed amendments to Act 342 is the expansion of enforcement powers – beyond the Ministry of Health (MOH) and police officers – to statutory bodies and local councils to issue compounds.
Even if MOH provides so-called “strict” guidelines for compounds of the breach of Covid SOPs, it is highly likely that enforcement officers from the police and local councils will simply ignore them and issue the maximum compounds of RM10,000 on individuals and RM1 million on companies, including small businesses like pubs that have been the easy target of law enforcement during the pandemic. The police, in the past two years, have never been publicly reported to offer anything less than the maximum compound.
With such excessive compounds on the spot and the expansion of Covid enforcement to local councils, corruption will be rife as authorities may extort bribes from Malaysians and small business owners desperate to avoid punitive fines that will wipe out eight months’ worth of income or their entire business. Malaysia’s current monthly minimum wage is only RM1,200.
All these draconian measures illustrate a containment strategy – which MOH had supposedly abandoned after the failure of every single lockdown (except the March 2020 Movement Control Order) to reduce Covid-19 cases.
Instead of stringent movement restrictions, the singular public health measure that had succeeded in curbing Malaysia’s coronavirus epidemic was the immensely successful vaccination programme spearheaded by Khairy. Nearly the entire adult and adolescent populations in the country are double-vaccinated, even as about 14 per cent of adults have received booster shots.
So, the government’s turn to tyranny is inexplicable. There is no evidence whatsoever that criminal punishment is effective in curbing transmission or reducing incidence of an infectious disease. What works – as seen in the HIV epidemic – is treating people as patients, not criminals.
Malaysians have contracted Covid-19 despite perfectly complying with SOPs or staying home like a hermit. Wearing face masks and getting vaccinated helps prevent Covid-19 infection to a large degree; they are not 100 per cent effective. Physical distancing also cannot completely prevent infection since the virus is airborne.
Throughout his tenure as the past Science, Technology and Innovation Minister and currently as Health Minister, Khairy has displayed a keen knowledge of Covid-19, frequently retweeting not just global news reports, but also international scientists on the pandemic, which makes his endorsement of the new Bill even more baffling.
The proposed draconian amendments to Act 342 come amid the rapid global spread of the Omicron variant.
According to the UK’s Health Security Agency, the risk of household transmission from Omicron is three times higher than from a Delta case. The risk of a close contact contracting Covid-19 from an Omicron index case is double that of Delta.
And yet, the government seems intent on punishing Malaysians in the face of an even more transmissible virus than the Delta variant that nearly crippled the Klang Valley’s health care system.
Worse still is the unholy haste to pass the Bill through Parliament by year end with its planned tabling in the Dewan Rakyat this Thursday, without any public engagement or consultations with stakeholders. A copy of the Bill is unavailable on Parliament’s website.
Increasing the severity of punishments under Act 342 does not address the fundamental problem of double standards in enforcement. Although Khairy took the unprecedented move of rebuking and fining the Prime Minister’s Department for organising the crowded Keluarga Malaysia event at KLCC – something which I don’t think any other politician from any party would have done against their prime minister – the police themselves do not follow the same rules that they enforce on everyone else (except YBs).
If Members of Parliament allow this Bill to pass, Malaysians will suffer the gravest injustices from law enforcement not just during the Covid-19 pandemic, but also in subsequent years through the criminalisation of other infectious diseases like dengue and TB.
Boo Su-Lyn is CodeBlue editor-in-chief. She is a libertarian, or classical liberal, who believes in minimal state intervention in the economy and socio-political issues.