As the year 2024 nears its end, we find ourselves at a moment of reflection.
According to the official portal of Parliament, 62 bills have been passed, as at 19 December 2024.
While this figure may seem indicative of a robust legislative process, the passing of bills in and of itself is not a full achievement. As the saying goes, “the proof of the pudding is in the eating,” and so it is with legislation.
True success lies not merely in the enactment of bills but in the process of their formulation, the transparency of their tabling, and the rigour of their enforcement upon becoming law.
The Malaysian Bar has taken particular note of these aspects, especially concerning the Prevention and Control of Infectious Diseases (Amendment) Act 2024, passed by the House of Representatives through a voice vote on 14 October 2024.
The amendment act raises several troubling issues.
MPs from across the political spectrum, including government backbenchers and opposition lawmakers, expressed bipartisan concerns about its punitive nature.
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Provisions such as the excessive fines and imprisonment terms under Section 31(3) have drawn criticism for their harshness, especially when applied to low-income individuals or corporate bodies. The proposed maximum fine of RM8,000 and imprisonment of up to two years for individuals, and a fine of up to RM50,000 for corporate bodies, are disproportionately burdensome.
These measures risk penalising individuals who may unknowingly contravene rapidly changing regulations during a pandemic.
Additionally, the amendment act introduces Section 21A, granting the director general of health the power to issue sweeping directives to individuals or groups for controlling infectious diseases.
The lack of clear guidelines for such powers raises fears of potential abuse and double standards in enforcement. Concerns about the enforcement of these powers, especially the use of “force” pursuant to Section 14A(2) and tracking devices, underscore the need for mechanisms to prevent misuse and ensure accountability.
The new Section 14A further compounds these concerns by introducing what is effectively a form of arrest under the guise of public health measures. Section 14A(1) empowers an authorised officer to order any person suspected of being infected to undergo isolation or surveillance for an indeterminate period.
This provision raises significant questions about individual liberty, due process, and proportionality. The powers conferred by Section 14A could lead to arbitrary detention without adequate safeguards or judicial oversight.
The lack of clear procedural guidelines for implementing these measures risks enabling abuses of power, underhandedly affecting vulnerable populations, and undermining public trust in health authorities.
Such sweeping powers must be critically examined and curtailed to prevent misuse.
Furthermore, the approach of the bill contrasts starkly with the necessity of health education to prevent infectious diseases. Punishment alone cannot foster public trust or compliance.
This is further compounded by the increase in general penalties under Section 24, which now includes fines of up to RM10,000 and imprisonment terms of up to two years for individuals, with even steeper penalties for corporate entities.
While the government has claimed that these penalties are lighter than those enforced during the Covid pandemic, they remain significantly harsher than previous iterations of the law.
Despite these criticisms, the Malaysian Bar was not effectively consulted during the drafting of this bill. This omission is deeply troubling, as it undermines the democratic process of lawmaking and the principle of informed decision-making.
Effective consultation is not a mere formality but a cornerstone of sound legislative practice.
The Malaysian High Court case of Kerajaan Negeri Selangor v Suruhanjaya Pilihan Raya & Ors (2017) provides guidance on what constitutes a meaningful consultation process.
At paragraph 96, the court endorsed the Sedley criteria, which require that consultations occur at a formative stage, provide sufficient information for intelligent consideration and response, allow adequate time for deliberation, and ensure that the outcomes of consultations are conscientiously considered, before finalising the proposals. [The Sedley criteria are also known as the Gunning Principles, following the name of the case – R v Brent LBC, ex p Gunning (1985). These principles were endorsed by the UK Supreme Court in R (Moseley) v Haringey LBC (2014).]
Had these criteria been adhered to, the government would have been well-informed of the flaws inherent in this bill. Meaningful engagement with stakeholders, including the Malaysian Bar and public health experts, would have highlighted the excessive measures, the potential for abuse of power, and the lack of emphasis on public education in disease prevention.
Instead of addressing the root causes of infectious disease transmission, the bill has the potential of creating a society where the arbitrary exercise of authority and the fear of disproportionate punishment overshadow the principles of justice, equity and public health.
As we close the chapter on 2024, let us not only count the bills passed but also measure the processes that birthed them.
Only through transparent, inclusive and accountable lawmaking can we ensure that our legislation truly serves the people it is meant to protect.
Mohamad Ezri Abdul Wahab is president of the Malaysian Bar.
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