Covid-19: Regulations to implement Phase 2 of Movement Control Order gazetted
01 April 2020
- Communications and internet
- Security and defence
- Solid waste and public cleansing management and sewerage
- Healthcare and medical including dietary supplement
- Banking and finance
- Logistics confined to the provision of essential services
The definition of ‘essential services’ in regulation 2 of the Phase 2 Regulations has been widened to include ‘any activity and process in the supply chain of such essential services.’ This expansion of the definition is welcomed.
The Phase 2 Regulations permit a person to move from place to place to perform ‘any duty in relation to any essential services’ or ‘any official duty’ (regulations 3(2)(e) and 3(2)(d)).
The following essential services under the Phase 1 Regulations have been omitted from the Phase 2 Regulations -
- Port, dock and airport services and undertakings including stevedoring, lighterage, cargo handling, pilotage and storing or bulking of commodities
- Production, refining, storage, supply and distribution of fuel and lubricants;
- Radio communications including broadcasting and television
- Transport by land, water or air
- Hotels and accommodations
- Any services or works determined by the Minister of Health as essential or critical to public health and safety
Arguably, some of the above services could be regarded as ‘official duty’
(for which movement is permitted under regulation 3(2)(d)) or fall within the categories of ‘security and defence’ (e.g. fire, prison, immigration and customs), or ‘logistics for essential services’ (e.g. cargo handling) but others, such as hotels and accommodations would clearly not. The production, refining, storage, supply and distribution of fuel and lubricants could, arguably, fall within ‘energy’.
The discretion given to the Minister of Health under the Phase 1 Regulations to include other services which are critical to public health and safety as ‘essential services’ should have been maintained.
The Phase 1 Regulations provided that premises providing essential services may be opened but the number of personnel and patrons at the premises are to be kept to the minimum. The omission of this provision from the Phase 2 Regulations may suggest that these matters are now under the purview of other regulatory bodies, such as the other Ministries or city or municipal councils.
The discretion given to the Director General of Health (‘Director General’) under the Phase 1 Regulations to allow premises providing non-essential services to remain open has been omitted from the Phase 2 Regulations. Thus, it appears that non-essential services will not be allowed to operate during the Phase 2 Period.
Control and Conditions of Movement
The Phase 2 Regulations prohibit any person from moving from one place to another except for the following purposes –
- to purchase food, daily necessities, medicine or dietary supplement;
- to supply or deliver food, daily necessities, medicine or dietary supplement;
- to seek healthcare or medical services;
- to perform any official duty; or
- to perform any duty in relation to any essential services.
The Phase 2 Regulations also specify conditions applicable to the permitted movements. A person–
- moving for the purpose of purchasing food, daily necessities, medicine or dietary supplement must restrict his movement to a place within a radius of not more than 10 km from his residence, or to a place nearest to his residence, and may not be accompanied by any other person unless it is reasonably necessary for him to ;
- seeking healthcare or medical services must confine his movement to a place within a radius of not more than 10 km from his residence, or to a place nearest to his residence, and may be accompanied by any other person if it is reasonably necessary;
- performing any official duty shall produce an authorisation letter from his employer, if required by an authorised officer;
- performing his duty in relation to any essential services shall produce an authorisation letter from his employer, if required by an authorised officer; and
- moving due to a special and particular reason must obtain the prior written permission of the police officer in charge of the police station nearest to his residence.
Similar to the Phase 1 Regulations, a person selling food for consumption must only do so by way of drive-through, take away or delivery, subject to any direction issued by the Director General.
Control of gathering
As in the case of the Phase 1 Regulations, gatherings in any premises, whether for religious, sports, recreational, social or cultural purpose, are not permitted except for a funeral ceremony provided that the number of attendees at such ceremony are kept to a minimum.
The Phase 2 Regulations introduce new provisions relating to infrastructure works.
Movement is permitted for the purposes of carrying out work on any infrastructure related to any essential services which if not carried out, would affect the provision of the essential services.
In addition, movement is also permitted for the purposes of carrying out work on any infrastructure which if not carried out, would affect the safety and stability of the infrastructure.
A person moving for either of the aforesaid purposes shall provide the necessary proof, if required by an authorised officer.
Health examination upon return to Malaysia
The requirements under the Phase 1 Regulations for a citizen or permanent resident of Malaysia returning from overseas to undergo a health examination upon arrival before proceeding for immigration clearance, and to comply with any order issued by an authorised officer have been retained under the Phase 2 Regulations. These requirements have been extended to expatriates returning from overseas.
Direction of Director General
The Phase 2 Regulations confer discretion on the Director General to issue any specific or general direction to any person or group of persons to take measures for the purpose of preventing and controlling any infectious disease within any infected local area.
The provision requiring a person to comply with any request made by an authorised officer to provide any information relating to the prevention and control of infectious disease has been extended in the Phase 2 Regulations and now also applies to a body of persons.
As in the case of the Phase 1 Regulations, non-compliance with the Phase 2 Regulations is punishable with a fine not exceeding RM1,000 or imprisonment for a term not exceeding six months or both. However this provision in the Phase 2 Regulations has been expanded in the following respects –
- the sanctions also apply to a contravention of any direction issued by the Director General or by an authorised officer; and
- the corporate liability provision has been refined and extended, and now applies to a company, limited liability partnership, firm, society or other body of persons (‘non-individual). If the offence is committed by a non-individual, a person who, at the time the offence is committed, was a director, compliance officer, partner, manager, secretary or similar officer of the non-individual, or was purporting to act in any such capacity, or was in any manner or to any extent responsible for the management of the affairs of the non-individual or was assisting in such management, may be charged jointly and severally with the non-individual for the offence. The due diligence defence is available to such person if, having regard to the nature of his functions in that capacity, he proves that the offence was committed without his knowledge, consent or connivance, and that he has taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
These services were classified as two sectors in the Phase 1 Regulations and have been consolidated in the Phase 2 Regulations.
The term ‘official duty’ is not defined.