17 June 2020
After a three-month lockdown which has quickly curbed the number of active COVID-19 cases in Malaysia, the Prime Minister announced on 7 June 2020 that the country would transition from the so-called “Conditional Movement Control Order”, which was in force until 9 June 2020, to a “Recovery Movement Control Order” (“RMCO”) that is scheduled to have effect from 10 June 2020 to 31 August 2020 (“Announcement”).
In line with the Announcement, the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 5) Order 2020 was issued on 10 June 2020, which officially extended the operation of the original order which declared all states and federal territories of Malaysia as being an infected local area for the purposes of the Prevention and Control of Infectious Diseases Act 1988 (“PCID”). Additionally, the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No. 7) Regulations 2020 (“PCID Regulations No. 7”) were also issued pursuant to the PCID and gazetted on 10 June 2020. The PCID Regulations No. 7 will be effective from 10 June 2020 to 31 August 2020 (“Recovery Period”), for the duration of the whole RMCO. The main provisions of the PCID Regulations No. 7 are listed below.
The PCID Regulations No. 7 expressly prohibit the carrying out, organizing, undertaking or involvement in any of the following prohibited activities:
- Organizing sports event and tournament, and sports event and tournament
- Contact sports
- Water theme park and water park activities
- Swimming pool activities (other than swimming pool activities in a swimming pool in a private residence and in a swimming pool for private use in accommodation premises under the Tourism Industry Act 1992, except for the training of national athletes participating in the Tokyo Olympic Games 2020)
- Outbound tour activities by a citizen and inbound tour activities involving foreign tourists entering Malaysia
- Activities in karaoke centres, children’s playgrounds in shopping malls and family entertainment centres
- Activities in pubs and night clubs, except restaurant business in pubs and night clubs
- Fitting of clothes, using fitting rooms in clothes stores, trying on fashion accessories in stores and providing cosmetic testers in stores
- Reflexology and massage activities in a health and beauty establishment
- Cruise ship activities
- 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 of Health (“DG”)
Generally, the prohibited activities are recreational in nature and/or involve close contact between individuals. The last catch-all provision, however, still imposes an obligation on individuals and businesses to constantly assess the activities they engage in and make sure that such activities do not make it difficult to carry out social distancing and comply with the DG’s directions, lest they fall foul of the PCID Regulations No. 7.
Transition provision and Standard Operating Procedures
The PCID Regulations No. 7 contain a provision which refers to previous directions of the DG issued pursuant to the predecessors to the PCID Regulations No. 7, and deems such directions as having been made under the PCID Regulations No. 7, therefore allowing them to continue to remain in force unless revoked by the DG.
This transition provision is intended to extend the operation of the Standard Operating Procedures (“SOP”) previously issued by the National Security Council, which outline restrictions (such as a limit on operating hours) and specific measures to be taken by businesses in their respective industries. These SOPs were initially issued pursuant to the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No. 5) Regulations 2020. As mentioned above, the legality of the SOPs have been preserved in the subsequent regulations and now in the PCID Regulations No. 7. Hence, the SOPs continue to apply throughout the Recovery Period.
On 10 June 2020, new SOPs were issued (available here), which prescribe the measures that businesses must comply with during the Recovery Period.
Prohibition on movements and gatherings
There is no longer a restriction on interstate travel or movement from one place to another. People are free to travel wherever they wish within the country without the need to seek any prior permission, except to a place subject to an enhanced movement control order, unless it is for the provision of healthcare and medical services, or with the permission of an authorised officer.
Notably, the previous restriction on gatherings has been removed, but it has been replaced with a prohibition on “processions”, namely that, no person may participate or be involved in any procession. The term “procession” is not defined in the PCID Regulations No. 7 and there is some uncertainty as to what it may entail. For instance, funerals often involve some sort of funeral procession, which may be prohibited under the PCID Regulations No. 7.
In relation to gatherings, a person may gather or be involved in a gathering, including congregations for praying at any place of worship. However, the regulation specifies that such gatherings are subject to any directions of the DG.
Mandatory health examination
Any person entering Malaysia from overseas must undergo a health examination upon his arrival in Malaysia. Such persons may also be directed to undergo home quarantine, and be given a wristband to wear for such purposes.
The PCID Regulations No. 7 do not prescribe a specific limit on the number of passengers that may be carried on board any public transport, but specify that the DG may impose restrictions in this regard.
Lastly, there is a broadly-worded provision under Regulation 10 of the PCID Regulations No. 7 which allows the DG to issue any direction 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, organising, undertaking or who is otherwise involved in any activity, other than a prohibited activity as specified in the Schedule to the PCID Regulations No. 7).
It is worth noting that this provision provides an extremely wide discretion to the DG, and that there is a possibility that directions made pursuant to the provision may be ultra vires (i.e. falling beyond the legal power or authority conferred by the parent statute, the PCID Act). Section 11(2) of the PCID Act provides that the Minister of Health, may, by regulations, prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area. The PCID Regulations No. 7 have been made pursuant to section 11(2) of the PCID Act.
In addition, section 11(3) of the PCID Act provides that, during the continuance in force of an order declaring areas in Malaysia to be infected local areas, an authorized officer is permitted to direct any person(s) living in an infected local area to subject himself or themselves to treatment, immunization, isolation, observance and surveillance, or to any other measures the authorised officer considers necessary to control the disease. The wording of Regulation 10 appears to be wider that the powers conferred on authorised officers under section 11(3) of the PCID Act. In our view, Regulation 10 should be read in light of section 11(3) of the PCID Act, and directives made by the DG under Regulation 10 which fall outside the ambit of section 11(3) of the PCID Act may potentially be ultra vires.
In addition, if any authorised officer requests any information relating to the prevention and control of infectious disease from any person or body of persons, such request must be complied with.
Any person who contravenes the PCID Regulations No. 7 or any direction from the DG commits an offence, rendering him or her liable on conviction to a fine not exceeding RM1,000 or to imprisonment for a term not exceeding six months, or to both.
The PCID Regulations No. 7 impose direct liability on, in the case of a company, limited liability partnership, firm, society or other body of persons, the director, compliance officer, partner, manager, secretary or other similar officer of the body corporate, or anyone purporting to act in the capacity or was responsible for or assisting the management of any of the affairs of the body corporate in any way. The person may then be charged severally or jointly along with the body corporate and will be deemed to be guilty and liable to the same penalty as an individual if the body corporate is found guilty, unless he can show that the offence was committed without his knowledge, and it was committed without his consent or connivance; and that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.