KUALA LUMPUR, Dec 15 — Lawyers have criticised the increased criminal penalties for breaches of Covid-19 rules in proposed amendments to Act 342 that they described as “disproportionate” to the offence.
The Prevention and Control of Infectious Diseases Act 1988 (Act 342) amendment Bill 2021 imposes maximum compounds of RM10,000 for individuals and RM1 million for corporate bodies.
“These amendments are oppressive. The punishment is totally disproportionate to the offence. It’s madness,” former Malaysian Bar president Ambiga Sreenevasan told CodeBlue.
“It is especially worrying because of the way in which such laws are enforced. Ordinary Malaysians face the full brunt of the law while others get off scot free.
“I also cannot understand why it is necessary right now when most Malaysians are vaccinated and they are generally very responsible. Laws are supposed to respond to address a particular situation or problem. What is that in the current situation? It’s an irresponsible law.”
Throughout the state of Emergency from January 12 — which legislated an Emergency Ordinance that imposed a maximum RM10,000 and RM50,000 compound on individuals and companies respectively for breach of Covid standard operating procedures (SOPs) — daily new Covid-19 cases rose to a peak of nearly 25,000 infections on August 26. Covid-19 deaths similarly spiked to a peak of over 350 fatalities on August 6.
Daily new cases have declined since, falling to a seven-day average of about 4,500 cases as of yesterday. Daily coronavirus-related fatalities have similarly fallen to a seven-day average of less than 40 on December 7, after the government’s Covid-19 vaccination programme successfully inoculated nearly the entire adult and adolescent population.
Compounds of Covid-related offences were only restored to the RM1,000 limit under the current Act 342 after the Senate repeal of the Emergency Ordinances was gazetted on December 8.
Criminal lawyer New Sin Yew said he completely opposed any jail sentence for the violation of Covid SOPs.
“The way I see it is that the penalty imposed must be proportionate, otherwise it’ll infringe Article 8 of the Federal Constitution on equal protection of the law. It needs to be proportionate to the aims you want to achieve,” New told CodeBlue.
“If the aim is to protect public health and you impose a penalty that would have the effect of backfiring against public health, where you imprison the guy for seven years but he gets Covid in prison. That’s one very crude example.
“But that principle simply means that if I’m going to stop you from wearing face masks, I can’t impose death penalty. They’re imposing less severe punishments, but it’s still very, very severe.”
New suggested a scale of punishments with lesser penalties for lesser offences, pointing out that the amendment Bill treats a person who temporarily takes off his face mask while alone in a park the same as a person who did not wear a face mask at all while walking to the park.
“They need to spell out under what circumstances is the RM10,000 compound applicable. There needs to be a scale, I think it should be in legislation,” he said.
He pointed out that the crowded Keluarga Malaysia government event in an indoor space — which saw more than 100,000 visitors in four days — involved much more severe offences than the offence of drinking in a pub.
Constitutional lawyer Malik Imtiaz Sarwar tweeted: “The proposed amendment to Act 342 is setting the stage for a constitutional challenge for disproportionality, if not more.”
The Ministry of Health (MOH) plans to revise the amendment Bill at the committee stage in the Dewan Rakyat tomorrow to allow Act 342 regulations — which list specific Covid-related offences and public health measures throughout the pandemic — to mete out penalties of up to seven years’ imprisonment, a maximum RM2 million fine, or both for offences upon conviction.
Offences spelled out in Act 342 regulations — which can be gazetted by the health minister without parliamentary approval — vary from losing a tracking device during quarantine to organising gatherings or breaching movement restrictions during previous phases of the Movement Control Order.
General penalties upon conviction for offences under Act 342 for which no specific penalty is provided are also revised in the amendment Bill to a jail term not exceeding seven years, a maximum RM100,000 fine, or both for individuals, as well as a maximum RM2 million fine for corporate bodies.
The criminal offence of breaching Covid standard operating procedures (SOPs) like wearing face masks, not practising social distancing, or visiting crowded places or pubs can be compounded. But if offenders are unable to pay their compounds, they may be charged in court.
Criminal lawyer Lim Chi Chau said he had no problems with the proposed maximum RM100,000 fine or jail sentence extending to seven years for conviction of offences under Act 342.
“Normal breach of SOP will not be sentenced to imprisonment, don’t worry. Judges are not stupid,” Lim told CodeBlue.
“I don’t know about others, but it’s fine for me because there’s no minimum fine, that’s important.”
He added, however, that if he were to be slapped with an RM10,000 compound, he would challenge it in court.
Lim also expressed concern with a new Section 14A in the Act 342 amendment Bill that authorises the quarantine of people suspected or confirmed to be infected with an infectious disease until they are no longer deemed to be a “danger to the public”.
“Can keep you for an indefinite time until they feel you are not a danger to the public,” he explained.