MAY 5 — Over the past seven weeks, Malaysian were bombarded by standard operating procedures (SOPs). Some are updated multiple times on a daily basis.
Since the beginning of movement control order (MCO), we are constantly reminded that only the head of the household are allowed to do grocery shopping. Many Malaysians were arrested and prosecuted for flouting the 10km movement condition, “one-vehicle one-person rule” and for breaching curfew.
As reported by The Star, a couple was jailed four days and fined RM300 each for their shopping trip on March 30, 2020. The police told the couple that only one person from a household was allowed to go shopping at any one time.
But does the first phase of MCO regulation expressly prohibit group shopping?
The answer is no.
After the first phase of MCO, the draftsman must have spotted the loophole. As a result, Regulation 4, 10 and 11 were inserted into phase 2 MCO Regulation. It was gazetted as Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 2) Regulations 2020, which was in force from April 1- 14, 2020.
Regulation 4 basically codified the 10km radius condition movement ONLY for those who wish to obtain food, daily necessities, medicine and medical services. However, police in Terengganu have somehow apply “the 10km rule” to essential workers such as food delivery service despite clear wording in Regulation 4(1)(a) and (b).
Movement control vs curfew
During MCO, we were told about the curfew through press conference and SOPs released on social media.
Two weeks ago, a female student was jailed for seven days, fined RM800 for delivering a “kek batik” to her boyfriend at about 9pm, 800 meters from her house.
Today, The Star reported two jobless men, aged 24 and 26 years, were each fined RM1,000 or three months’ jail after they pleaded guilty to flouting the MCO by going out to buy food in Gombak at 9.15pm, on April 9.
However, MCO regulations expressly allow food delivery, and individual to purchase food. It does not specify the time limit or curfew. The police or home minister did not declare a curfew under section 31 of the Police Act or any other law. In order word, the “curfew” is mere SOP.
What are the difference between SOPs and laws?
Senior Minister Datuk Seri Ismail Sabri Yaakob seems to be confused about SOP and law. He said two politicians who were fined RM1,000 because they only breached the SOP aspect and not for violating the MCO. But social gathering is prohibited by Regulation 6.
First, it is important to differentiate SOPs and the different species of law. Following the doctrine of separation of powers enshrined in Federal Constitution, the law-making power belongs to the Parliament (legislative). But it can be delegated to Minister (Executive) if an Act of Parliament allows it.
In the context of MCO, Prevention and Control of Infectious Diseases Act 1988 (PCIDA) an Act of Parliament gives the Health Minister powers to make law known as subsidiary legislation to control the spread of Covid-19. All laws must be published in the gazette to take effect.
SOP on the other hand, are written, step-by-step instructions or guideline that describe how to perform a routine activity and mostly used internally.
Can a SOP create penal offence?
The Court of Appeal in Majlis Angkatan Tentera Malaysia v Mohd Nurul Ami bin Mohd Basri held that SOP will not be legally binding if it was not made under any written law.
In simple language, PCIDA 1988 is the parent Act and MCO Regulation is its offspring. SOP is another creation which may or may not belong to the family, depending on its source of authority.
All the accused mentioned above were charged under MCO Regulation because they were out without valid purpose. But purchasing and delivering food are allowed under the Regulation. Without express prohibition, the curfew is mere administrative order. Enforcement and prosecution must be based on law and not mere SOP that does not have any legal force.
Is the tsunami of SOPs a Pandora’s box?
Malaysia is not a lawless cowboy state. Laws that limit our personal liberty have to be clear and published in gazette. Even the ancient Mesopotamia law dated 1754BS was codified as The Code of Hammurabi. Can government reasonably expect her people to follow SOPs that are ever-changing and not publicised? Unsurprisingly, the number of individuals detained nationwide for violating the movement control order (MCO) Phase 2 had increased to 51 per cent.
Legislature (Parliament) makes the laws. Executive enforces our laws. Judiciary examines laws to see if they are constitutional. The purpose of separation of power is to prevent abuse and prevent any branch of government from having too much power. What happens when executive makes the law and at the same time enforce it? Are MCO SOPs made for the best interest of the people? Or has it given executive unfettered power and become the Pandora’s box for arbitrary enforcement? Something for us to ponder.
* Samantha Chong is a lawyer and former deputy public prosecutor.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
