Following from the issuance of the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 on 17 March 2020, declaring all States and Federal Territories of Malaysia as infected areas of the Covid-19 disease, the Minster of Health had on 18 March 2020 and 31 March 2020 gazetted the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 ('Phase 1 Regulations') and Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 2) Regulations 2020 ('Phase 2 Regulations') respectively.

Phase 1 Regulations

The Phase 1 Regulations have effect from 18 to 31 March 2020 and set out the measures to be taken to control or prevent the spread of the Covid-19 virus within or from the infected areas. Among these measures are the following –

Control of Movement and Gatherings

  1. No person shall make any journey from one place to another except for the following purposes –
    1. to perform any official duty;
    2. to make any journey to and from any premises providing essential services that remain open;
    3. to purchase, supply or deliver food or daily necessities;
    4. to seek healthcare or medical services; or
    5. any other special purposes as may be permitted by the Director General of Health ('Director General').
  2. No person may be involved in any gathering, whether for religious, sports, recreational, social or cultural purpose, except for a funeral ceremony provided that the number of attendees at such ceremony are kept to a minimum.
  3. No person shall make a journey from one infected local area to another except with the prior written permission of a police officer in charge of a police station.

Health examination upon return to Malaysia

A citizen or permanent resident of Malaysia retuning from overseas is required to undergo a health examination upon arrival in Malaysia before proceeding for immigration clearance, and shall comply with any order issued by an authorised officer.

Essential services

  1. The following have been specified in the Schedule to the Regulations as 'essential services' -
    1. Banking and finance
    2. Electricity and energy
    3. Fire
    4. Port, dock and airport services and undertakings including stevedoring, lighterage, cargo handling, pilotage and storing or bulking of commodities
    5. Postal
    6. Prison
    7. Production, refining, storage and distribution of fuel and lubricants;
    8. Healthcare and medical
    9. Solid waste management and public cleansing
    10. Sewerage
    11. Radio communications including broadcasting and television
    12. Telecommunication
    13. Transport by land, water or air
    14. Water
    15. E-commerce
    16. Defence and security
    17. Food supply
    18. Wildlife
    19. Immigration
    20. Customs
    21. Hotels and accommodations
    22. Any services or works determined by the Minister as essential or critical to public health or safety.
  2. Premises that provide essential services may be opened but the number of personnel and patrons at the premises are to be kept to the minimum.
  3. Premises involved in the food supply chain or in selling food and beverage by way of drive-through, takeaway and delivery may be open subject to conditions that the Director General may deem fit to impose.

Non-Essential Services

Any premises not providing essential services may be opened if the owner or occupier of the premises obtains the prior written permission of the Director General, who may impose such conditions as he deems fit.

Information

A person is required to comply with any request made by an authorised officer to provide any information relating to the prevention and control of infectious disease.

Offences

  1. Non-compliance with any provision of the Phase 1 Regulations is an offence punishable in accordance with Regulation 7(1).
  2. Where an offence is committed by a body corporate, any person who, at the time the offence is committed, was a director, manager, secretary or similar officer of the body corporate, or was purporting to act in any such capacity, or was in any manner or to any extent responsible for the management of the affairs of the body corporate or was assisting in such management, may be charged jointly and severally with the body corporate for the offence. The due diligence defence is available to such person if, having regard to the nature of his functions in that capacity, he proves that the offence was committed without his knowledge, consent or connivance, and that he has taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.

Comments

The Phase 1 Regulations clarifies some of the measures set out in the Movement Control Order. For example, the nature of the health check for Malaysian citizens and permanent residents returning from overseas is now clarified.

It is also interesting to note that the Phase 1 Regulations have included hotels and accommodations as essential services and provide flexibility for the Director General to allow premises providing non-essential services to remain open subject to conditions as he deems fit to impose.

Certain aspects of the Phase 1 Regulations require further clarification. For example, the scope of the services comprised in 'telecommunication' and 'wildlife' that are to be regarded as essential services. In respect of the former, it is unlikely that retail outlets selling handphones and telecommunications equipment would be regarded as essential services. As for 'wildlife', the feeding and care of animals in wildlife reserves and zoos would clearly fall within this category, but not the hunting of wildlife for game, consumption or sale.

Phase 2 Regulations

The Phase 2 Regulations have effect from 1 to 14 April 2020 ('Phase 2 Period'), and replace the Phase 1 Regulations' which lapsed on 31 March 2020.

The main differences between the Phase 2 Regulations and the Phase 1 Regulations are as follows –

Essential services

One of the significant differences from the Phase 1 Regulations is the reduction in the number of 'essential services' from 22 to 10 under the Phase 2 Regulations. The 10 essential services permitted under the Phase 2 Regulations are as follows –

  1. Food
  2. Water
  3. Energy
  4. Communications and internet
  5. Security and defence
  6. Solid waste and public cleansing management and sewerage
  7. Healthcare and medical including dietary supplement
  8. Banking and finance
  9. E-commerce
  10. Logistics confined to the provision of essential services

The definition of 'essential services' in regulation 2 of the Phase 2 Regulations has been widened to include 'any activity and process in the supply chain of such essential services.' This expansion of the definition is welcomed.

The Phase 2 Regulations permit a person to move from place to place to perform 'any duty in relation to any essential services' or 'any official duty' (regulations 3(2)(e) and 3(2)(d)).

The following essential services under the Phase 1 Regulations have been omitted from the Phase 2 Regulations:-

  • Electricity
  • Fire
  • Port, dock and airport services and undertakings including stevedoring, lighterage, cargo handling, pilotage and storing or bulking of commodities
  • Postal
  • Prison
  • Production, refining, storage, supply and distribution of fuel and lubricants;
  • Radio communications including broadcasting and television
  • Transport by land, water or air
  • Immigration
  • Customs
  • Wildlife
  • Hotels and accommodations
  • Any services or works determined by the Minister of Health as essential or critical to public health and safety

Arguably, some of the above services could be regarded as 'official duty'1 (for which movement is permitted under regulation 3(2)(d)) or fall within the categories of 'security and defence' (e.g. fire, prison, immigration and customs), or 'logistics for essential services' (e.g. cargo handling) but others, such as hotels and accommodations would clearly not. The production, refining, storage, supply and distribution of fuel and lubricants could, arguably, fall within 'energy'.

The Phase 1 Regulations provided that premises providing essential services may be opened but the number of personnel and patrons at the premises are to be kept to the minimum. The omission of this provision from the Phase 2 Regulations may suggest that these matters are now under the purview of other regulatory bodies, such as the other Ministries or city or municipal councils.

The discretion given to the Ministry of Health under the Phase 1 Regulations to include other services which are critical to public health and safety as 'essential services' removed under the Phase 2 Regulations have since been reinstated under the Prevention and Control of Infectious Diseases (Measures within Infected Local Area) (No. 2) (Amendment) Regulations 2020 gazetted on 2 April 2020 ('Phase 2 (Amendment) Regulations').

The Phase 2 (Amendment) Regulations adds the following services to the list of 'essential services' under the Phase 2 Regulations with effect from 3 April 2020 –

  • Transportation by land, water or air
  • Port, dock and airport services and undertakings, including stevedoring, lighterage, cargo handling, and pilotage, and storing or bulking of commodities
  • Production, refining, storage, supply and distribution of fuel and lubricants
  • Hotels and accommodations
  • Any services or works determined by the Minister as important or critical to public health or safety

The additions to the 'essential services' under the amendment regulations are welcomed. With these additions, the only 'essential services' under the Phase 1 Regulations which have been omitted from the Phase 2 Regulations are fire, postal, prison, radio communications (including broadcasting and television), immigration, customs and wildlife.

Non-essential services

The discretion given to the Director General of Health ('Director General') under the Phase 1 Regulations to allow premises providing non-essential services to remain open has been omitted from the Phase 2 Regulations. Thus, it appears that non-essential services will not be allowed to operate during the Phase 2 Period.

Control and Conditions of Movement

The Phase 2 Regulations prohibit any person from moving from one place to another except for the following purposes –

  1. to purchase food, daily necessities, medicine or dietary supplement;
  2. to supply or deliver food, daily necessities, medicine or dietary supplement;
  3. to seek healthcare or medical services;
  4. to perform any official duty; or
  5. to perform any duty in relation to any essential services.

The Phase 2 Regulations also specify conditions applicable to the permitted movements. A person–

  1. moving for the purpose of purchasing food, daily necessities, medicine or dietary supplement must restrict his movement to a place within a radius of not more than 10 km from his residence, or to a place nearest to his residence, and may not be accompanied by any other person unless it is reasonably necessary for him to ;
  2. seeking healthcare or medical services must confine his movement to a place within a radius of not more than 10 km from his residence, or to a place nearest to his residence, and may be accompanied by any other person if it is reasonably necessary;
  3. performing any official duty shall produce an authorisation letter from his employer, if required by an authorised officer;
  4. performing his duty in relation to any essential services shall produce an authorisation letter from his employer, if required by an authorised officer; and
  5. moving due to a special and particular reason must obtain the prior written permission of the police officer in charge of the police station nearest to his residence.

Similar to the Phase 1 Regulations, a person selling food for consumption must only do so by way of drive-through, take away or delivery, subject to any direction issued by the Director General.

Control of gathering

As in the case of the Phase 1 Regulations, gatherings in any premises, whether for religious, sports, recreational, social or cultural purpose, are not permitted except for a funeral ceremony provided that the number of attendees at such ceremony are kept to a minimum.

Infrastructure works

The Phase 2 Regulations introduce new provisions relating to infrastructure works.

Movement is permitted for the purposes of carrying out work on any infrastructure related to any essential services which if not carried out, would affect the provision of the essential services.

In addition, movement is also permitted for the purposes of carrying out work on any infrastructure which if not carried out, would affect the safety and stability of the infrastructure.

A person moving for either of the aforesaid purposes shall provide the necessary proof, if required by an authorised officer.

Health examination upon return to Malaysia

The requirements under the Phase 1 Regulations for a citizen or permanent resident of Malaysia returning from overseas to undergo a health examination upon arrival before proceeding for immigration clearance, and to comply with any order issued by an authorised officer have been retained under the Phase 2 Regulations. These requirements have been extended to expatriates returning from overseas.

Direction of Director General

The Phase 2 Regulations confer discretion on the Director General to issue any specific or general direction to any person or group of persons to take measures for the purpose of preventing and controlling any infectious disease within any infected local area.

Information

The provision requiring a person to comply with any request made by an authorised officer to provide any information relating to the prevention and control of infectious disease has been extended in the Phase 2 Regulations and now also applies to a body of persons.

Offences

As in the case of the Phase 1 Regulations, non-compliance with the Phase 2 Regulations is punishable with a fine not exceeding RM1,000 or imprisonment for a term not exceeding six months or both. However, this provision in the Phase 2 Regulations has been expanded in the following respects –

  1. the sanctions also apply to a contravention of any direction issued by the Director General or by an authorised officer; and
  2. the corporate liability provision has been refined and extended, and now applies to a company, limited liability partnership, firm, society or other body of persons ('non-individual). If the offence is committed by a non-individual, a person who, at the time the offence is committed, was a director, compliance officer, partner, manager, secretary or similar officer of the non-individual, or was purporting to act in any such capacity, or was in any manner or to any extent responsible for the management of the affairs of the non-individual or was assisting in such management, may be charged jointly and severally with the non-individual for the offence. The due diligence defence is available to such person if, having regard to the nature of his functions in that capacity, he proves that the offence was committed without his knowledge, consent or connivance, and that he has taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.

An earlier version of this article was published in Skrine's "COVID-19 Legal Updates & Guidance" in three parts: Phase 1 Regulations, Phase 2 Regulations and Phase 2 (Amendment) Regulations.

Footnote

1. The term 'official duty' is not defined.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.