By Ida Lim | Malay Mail

Kelvin Yii Lee Wuen speaks to Malay Mail during an interview in Kuching December 8, 2021. — YUSOF MAT ISA

The Health Ministry is pushing to amend the Prevention and Control of Infectious Diseases Act (Act 342) to increase, among others, the current maximum RM1,000 compound payment rate to RM10,000 for individuals and RM500,000 for companies. 

Other proposed changes to the Act include specifying a maximum RM100,000 fine or maximum seven-year jail or both for individuals who break COVID-19 prevention rules under the law, although the government had yesterday suggested cutting this down to a maximum RM50,000 fine or three-year jail or both.

But could this result in Malaysians being punished with the maximum amounts when it comes to implementation time, even though the severity of the offence they committed may not justify or match figures such as RM10,000 for compound or RM100,000 for fines?

These proposed changes — including a new maximum RM2 million fine for companies — are contained in a bill that has yet to be voted and approved in Parliament as law. 

Lawyers and a lawmaker that Malay Mail spoke to have suggested that the government introduce a tier system, or a set of guidelines clearly outlining what type of offences would result in what value of compound offered.

Dr Kelvin Yii, who is the Chairman of the Dewan Rakyat’s special select committee on health, science and innovation, acknowledged that Act 342 must be amended to adapt to the current pandemic situation in terms of control of infectious diseases.

“However, there are several concerns especially when it comes to the high fines and the potential or the gap it may open when it comes to abuse, and also practice of double standards,” the Bandar Kuching MP said, also voicing concern that these may oppress the poor or lead to possible corruption without addressing the real issues or achieving the intended target to reduce or to control the spread of infectious diseases. 

He suggested that the bill be first sent to the bipartisan parliamentary special select committee that he heads for a bipartisan discussion “to go through every single clause and also especially when it comes to the high fines on individuals and companies to ensure that it would not be abused or used as an opportunity to oppress especially the poor”.

Education first, and how a tier system may help

“I propose that a tier system be implemented when it comes to these fines. First offenders are fined a minimal amount, second offenders an increased amount, and eventually more for repeat offenders.

“And it is very important to define what offences constitute a certain amount of fines, what offence is more severe, has higher risk of causing harm, and what offences may be simple honest mistakes; for example, forgetting to scan MySejahtera or forgetting to put on a mask for a short period of time.

“So I believe it shouldn’t be left too vague and openly interpreted by the enforcers, which opens to abuse and even possible corruption, but all this must be defined clearly — what act/what offence will constitute what sum of fines,” Dr Yii said.

Unlike the existing Act 342 which states the penalties for first or repeat offenders, the proposed amendments only specify different maximum punishments for individuals and companies regardless of whether they are first or repeat offenders.

With a tier system, he said that honest mistakes could be addressed with warnings and creating awareness, while repeat offenders or those who deliberately disobey the law could then be punished.

If such a tier system is to be introduced, he suggested that it be added directly into Act 342 itself to give it legal force and which enforcement officers could then refer to when issuing compound offers.

“The maximum amounts are definitely excessive, I feel that in order for better compliance, the frontline approach is still better education and better awareness.

“So the tier system is one of the ways to help address issues where there could be an honest mistake or unknowingly making an offence, so it gives more clarity what enforcement should do in such situations rather than immediately fining or putting an oppressive amount on them regardless of their social status,” he also said.

“With that said, I do hope that the bill will first go through the parliamentary select committee and then we can achieve bipartisan support, which is also important to boost public confidence towards the government’s intention and the government’s need to control infectious disease, whether it is COVID-19 or any other pandemic in the future,” he said, adding it would be ideal for the government to withdraw the bill and have it go through the select committee first before being sent for voting in the Dewan Rakyat.

The Health Ministry had this week said it will have guidelines for the maximum compound amount based on severity of offences, but has yet to be reported giving the full detailed guideline or specifying where it would be placed.

Human Rights Committee co-chair New Sin Yew speaks at the High Commission of the Republic of Singapore in Kuala Lumpur November 2, 2021. — MIERA ZULYANA

Going beyond guidelines and preventing arbitrary decisions

Lawyer New Sin Yew expressed concern over how the proposed Act 342 changes do not appear to clearly specify the severity of breaches, as they do not include a “scale” or range of punishment based on severity of offences.

“First it doesn’t distinguish between ‘minor’ breaches and ‘major’ breaches. Forgetting to wear a face mask seems to be met with the same penalty with someone who deliberately breaches SOP like throwing a party during lockdown.

“It’s better to have a scale to differentiate all these offences, and how much if one breaches it,” he said.

“My second concern is the excessive penalty. Imprisonment is disproportionately harsh especially when one considers those who could potentially be caught by the provision,” he said, again noting that this could include any offender such as those who purposely break COVID-19 lockdown rules.

“Perhaps it would be useful to include a scale and mitigating factors as guidance to the authorities,” he said when asked if factors like income levels of the offenders should be taken into account.

New said it is not good enough to have “guidelines” as the Health Ministry is planning to introduce, saying that the scale of offences and penalties should be directly added into Act 342 as a Schedule as “it has less likelihood of abuse” and as enforcement officers would have to follow it.

“Guidelines can be changed without going through Parliament by the authorities themselves, and so are susceptible to abuse,” he said, also adding that having a scale “could prevent the authorities from imposing fines arbitrarily”.

Andrew Khoo speaks at the SUHAKAM forum in conjunction with World Human Rights Day, Kuala Lumpur December 8, 2016. ― CHOO CHOY MAY

Lawyer Andrew Khoo said the proposed penalties are not excessive per se or by itself, but stressed the need for the penalties meted out to be proportionate to the offence or the damage and harm caused.

“One should bear in mind that we have seen some of these penalties earlier under the Emergency Ordinance (EO). Because the EO has been repealed, the provision of penalties needs to be reintroduced as amendments to existing laws,” he said.

The maximum compound of RM10,000 for individuals was for example under an Emergency Ordinance that was in force from March 11 until the EO was annulled on December 8.

When asked if the maximum penalties should be specified based on how much the offender earns, Khoo noted: “The minimum and maximum financial penalties have never been determined by the income level of the offender.  However any court should take that into consideration when actually meting out fines for specific cases.  

“Obviously the effect of a fine of RM10,000 to a person on minimum wage is different from that of a millionaire. One hopes that the guidelines mentioned by the honorable minister would take this into account.”

He said the guidelines must provide for penalties that match the severity of offence, noting: “Otherwise there will be legal challenges re disproportionate sentencing.  Also, there should be judicial sentencing guidelines. The Malaysian Bar has called for this for a long time now.”

“In the interest of inclusiveness and transparency, MOH should release a discussion draft of the proposed guidelines for civil society and interested individuals to respond to, before it is gazetted,” he added.

Looking beyond just the new amendments relating to maximum fines, jail term and compound amounts, Khoo also noted other concerns with proposed changes to Act 342.

“The amendments give very wide powers to the DG to give new directions without any prior approval of Parliament, the non-compliance of which would be an offence. What checks and balances are there to the exercise of such powers?  

“And a lot of powers to environmental health and other authorised officers, including the ability to carry out investigations and to demand for documents. This may not be the usual work of health officers, so there could be concern that they may not have the appropriate or adequate experience and knowledge to carry out such investigations pursuant to the Criminal Procedure Code. There has been no mention of what prior training will be given before such officers are able to exercise their powers,” he said.

The bill to amend Act 342 was tabled on December 14 in the Dewan Rakyat for its first reading, and is expected to be eventually voted on by MPs.