Covid-19 loophole exists in legislation, says lawyer

ATTENTION has been brought to the fact that Covid-19 does not actually fall under the Prevention and Control of Infectious Diseases Act 1988 (ID Act), and that this may be used as a loophole for violators.

Gurdial Singh Nijar, a practising lawyer, pointed out that not only is Covid-19 not specifically listed as an infectious disease, it has also not been added to the list of such diseases. In 2016, the 2012 Middle East Respiratory Syndrome Coronavirus (MERS-CoV) was added to the list by an order in the gazette.

“This implies that it is necessary to do so for the disease to be included for coverage under the Act. This also implies that it is not sufficient to rely merely on item 30 of the First Schedule which lists ‘Any other life threatening microbial infection’ as an infectious disease by reference to the definition in Section 2 of the Act,” says Gurdial.

For reference, the World Health Organisation (WHO) had identified Covid-19 by its specific name on Feb 11, 2020. Some countries, including Singapore and the UK, have already listed the virus specifically in their versions of the ID Act, while Malaysia has yet to do the same.

“There is no denying that Covid-19 is a microbial infection which is life-threatening,” said Gurdial, adding that this will qualify it as an infectious disease within the Act.

The government should be able to rely on Item 30 of the First Schedule to prescribe measures for Covid-19 as an infectious disease. In fact, it already has, through the enactment of recent regulations under the Act, namely the Prevention and Control of Infectious Diseases Act (Measures within the Infected Local Areas) Regulations 2020, gazetted on March 12 and effective until March 31.

These regulations concern the measures prescribed to an infected local area to control or prevent the spread of the disease, as well as for the prevention or mitigation of infectious diseases.

However, the loophole is thus: It can be argued that, as this disease is not specifically listed, people cannot be charged under the Act for flouting the Movement Control Order, which constitutes a measure under the 2020 regulations. Still, the government can claim there is no need to specifically name Covid-19 as it is clearly covered by the generic item 30 of the First Schedule.

“However, it is equally and justifiably open to a person charged for breaching any provisions of the Act or the regulations to argue that as there are two plausible interpretations, then under established criminal law principles, that which is favourable to the accused prevails,” said the lawyer, pointing out that this stands as a loophole for people to escape the punishment of a fine of RM1,000, a jail term of six months, or both. – April 7, 2020

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