We, the 29 undersigned groups, organisations and trade unions, are appalled that it seems that it is no longer an offence for companies/businesses not providing essential services which continue to operate during this movement control order period to check the spread of Covid-19.
It not only defeats the intention of the movement control order in place in Malaysia since 18 March 2020, but it also places hundreds of workers at serious risk of contracting this disease, which causes death and puts their families and others at risk.
The Covid-19 pandemic has resulted in Malaysia taking necessary drastic actions to get people to stay at home and practise social distancing, and for all business premises, save those providing selected “essential services”, to close during this movement control order period.
However, it appears that many companies/businesses that are not on the list of ‘essential services’ are continuing to operate all over Malaysia including glue factories, furniture factories and wood product factories.
When it was highlighted recently, the government stopped Heineken from operating, even though it could be argued it fell within the list of essential services. But a sincere government interested in the safety of the people ought to not simply exempt companies/businesses for any other reasons save for those listed as providing essential services.
Exemptions by government should not be simply given
Note also the new regulations, which replace earlier regulations, have not just reduced the list of ‘essential services’ but have also not added any new items to the list, like wood industries that earlier were allegedly granted exemptions.
Individuals being charged in large numbers but not businesses
On 2 April 2020 Defence Minister Ismail Sabri Yaakob was reported as saying that over 4,000 people have been arrested by the police thus far during the ongoing movement control order period with nearly 1,500 charged in court.
However, what is odd is that we do not hear of many companies and businesses being charged for wrongly continuing to operate during the movement control order period.
As far as businesses and companies are concerned, at the beginning of the movement control order, we read about action taken against a construction company that allegedly violated the order (The Star, 19 March 2020). But there were no directors or managers charged, and the company seems to have not been charged for breaking the regulation made under the Prevention and Control of Infectious Diseases Act 1988. Since then, we have not heard about businesses and companies being charged.
First regulations (until 31 March 2020) – Businesses, companies criminally liable for movement control order offences
Pursuant to the Prevention and Control of Infectious Diseases Act, during the first movement control order, the minister made and gazetted the Prevention And Control Of Infectious Diseases (Measures Within The Infected Local Areas) Regulations 2020 (PU(A) 91/2020), which was in effect for the period 18-31 March 2020.
In the regulations, it was clear that companies and businesses not providing essential services or those that had not obtained exemptions, that continued to operate were in breach of the law.
In Section/Regulation 5 entitled “Essential services”, it was stated, amongst others,
(1) Any premises providing essential services may be opened provided that the number of personnel and patron at the premises shall be kept to the minimum
(2) Any premises not providing essential services may be opened provided that the owner or occupier of the premises obtains the prior written permission of the Director General and the Director General may impose any conditions as he thinks fit….
This made it clear that any company or business that did not provide “essential services” or did not get “the prior written permission of the Director General” (of health) committed an offence if it continued to operate.
The business or company or ‘body corporate’ could then be charged jointly and severally with any person who was “a director, manager, secretary or other 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 any of the affairs of the body corporate or was assisting in such management”.
The penalty, if found guilty, would have been a sentence of a “fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both”.
Second regulations (1-14 April 2020) – Offence of companies/businesses operating absent
However, after the first movement control order ended, and the second movement control order began, new regulations had to be made, and so it was done – the Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) (No. 2) Regulations 2020 (PU(A) 109/2020).
What was glaringly absent from the new regulations, that were in effect on 1-14 April, was the same or similar Section/Regulation 5 in the old regulations – which means that now it may no longer be an offence for companies/businesses that did not provide “essential services” or that did not obtain “permission of the Director General” that continued to operate.
Hence, businesses operating against the movement control order would likely not be able to be prosecuted or charged for doing so as there was no clear offence in law.
It gives the impression that the Malaysian government may have elected to protect businesses and companies and their directors, managers, etc – which is totally odd and most questionable.
Despite the raising of this failing in public space, no amendment to the regulations has been gazetted that would make it an offence for businesses not allowed to operate but that continued to operate during the movement control order.
Note that when such a business or company continues to operate, workers have no choice but to return to work – for a failure to work may mean termination and loss of jobs.
Politics and the exemption of non-essential services businesses
After the first movement control order was declared, we read that some ministers and/or ministries, and even state government bodies have been granting exemptions to certain companies and businesses that on the face of it did not provide any of the essential services as listed in the movement control order regulations.
This is also wrong – for the movement control order law only gives the director general of health (and now also the health minister) the power to grant any such exemptions, which is right in this situation when we are faced with a life-threatening infectious disease.
Prime Minister Muhyiddin Yasin’s coalition government, known as Perikatan Nasional, which came into power in the beginning of March – and not after a general election – is a loose coalition of political parties and independent members of Parliament. Doubts still linger over whether the new PM still enjoys the majority support of the MPs.
This could be a factor, when the loss of support of even a few MPs could result in a collapse of this government. As such, it may be difficult for the government of the day to deny requests for exemptions by some of these MPs or their political parties for fear of loss of support.
It is hoped that such political and other considerations will not defeat the primary intentions of the movement control order – to combat the spread and overcome Covid-19, which threatens every human life in Malaysia, including workers – and their families – who are forced to leave homes to go to work, when such exemptions are granted.
Workers’ right to be heard and judicial review also affected
When an employer company or business, not in the current list of essential services, applies for exemption, workers ought to have the right to be heard before exemptions are granted.
Even after exemptions are granted, workers ought to justly have the right to appeal the decision of the director general or health minister, failing which they do have a legal right to challenge any such government decisions in court through a judicial review.
However, because of the movement control order and its restrictions, including the closure of law firms and the diminished operations of the courts at this time, it is very difficult for workers and their trade unions to even mount these appeals and challenges in court regarding these ‘exemptions’. The workers’ right to exercise their legal right to picket is also denied at the moment.
Note also that, according to law, some of these exemptions granted by some ministers, state or local governments – and not by the director general or health minister – may also be invalid.
It was also disturbing to read that recently in Sabah, two employers and six workers have been sentenced to two months’ jail for operating and working during the movement control order period (The Star, 30 March 2020). The penalising of these workers, who said they were instructed to work if they wanted their daily salaries, is unjust. Only the employers should have been charged and sentenced.
Employers who continue operating during this movement control order, in violation of movement control order period laws, and who jeopardise the lives of so many ought not be offered compounds or even sentenced to pay mere fines.
The human directors, managers and others ought to be given a deterrent sentence, at the very least imprisonment for their actions or omissions put workers and their families at risk.
We call on Malaysia to immediately amend the Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) (No. 2) Regulations 2020 (PU(A) 109/2020) to clearly make it an offence for companies and businesses operating in violation of the law during this movement control order period.
We call on Malaysia to also subsequently investigate and prosecute all who wrongly granted permission or ‘exemptions’ that led to such companies and businesses that were not allowed to do so during the movement control order period, being allowed to operate – irrespective of whether they are currently ministers, director generals, cabinet members or state executive council members.
We call on the Malaysian government, all ministers and state and local governments to put aside all political or economic considerations during the movement control order period in the interests of the safety and health of all in Malaysia, as we battle Covid-19. There must be no additional pressure on the director general or health minister to grant exemptions for certain businesses and companies that do not provide essential services.
We call for the immediate publication and gazette of the list of all companies and businesses allowed to operate during the movement control order through exemptions given by the ministry or the director general of health for the good of all workers (and trade unions) involved.
We call for the immediate release of all workers who were sentenced to jail, simply for working as instructed by their employers.
10 April 2020
On behalf of the following groups:
- Workers Hub For Change (WH4C)
- Malaysian Trades Union Congress (MTUC)
- Persatuan Sahabat Wanita Selangor (PSWS)
- Building and Wood Workers International (BWI), Asia Pacific Region
- Malaysians Against Death Penalty and Torture (Madpet)
- National Union of Banking Employees (Nube)
- Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung Malaysia (KSIEWSSM)
- National Union of Flight Attendants Malaysia (Nufam)
- Network of Action For Migrants in Malaysia (NAMM)
- Women Against Rape, UK
- Labour Behind the Label, UK
- Global Women’s Strike, UK
- Legal Action for Women, UK
- Payday Men’s Network, UK
- Payday Men’s Network, USA
- Parti Sosialis Malaysia (PSM)
- Sabah Women’s Action Resource Group (Sawo)
- Women of Color/Global Women’s Strike, UK
- International Black Women for Wages for Housework
- Cement Industry Employees Union (CIEU)
- Malayan Technical Services Union (MTSU)
- Ministry of Forestry Union (MFOU)
- PKNS Employees Union (PKNS)
- Sabah Timber Industry Employees Union (STIEU)
- Timber Employees Union of Peninsula Malaysia (TEUPM)
- Timber Industry Employees Union of Sarawak (TIEUS)
- Union of Construction Industry Employees (UECI)
- Union of Forestry Employees of Sarawak (UFES)