Law supreme over government and individuals


By Hafiz Hassan

THE TERM is not one that admits of a fixed or precise definition. However, one of its core ideas is the notion that the power of the state is vested in the various arms of government and that such power is subject to legal limits.

At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action (Supreme Court of Canada in Reference re Secession of Quebec [1998] 2 SCR 217, approved by the Federal Court in Tony Pua Kiam Wee v Government of Malaysia [2019] 12 MLJ 1).

The Yang di-Pertuan Agong and his brethren rulers have duly accorded the shield to the people the last night. Daulat Tuanku!

Now, the rule of law simply means also that the law is supreme over the acts of both government and private persons. That law is one and it is applicable to all. To that end, no man is above the law and all are equal before the law (Nallini FCJ in Tony Pua Kiam Wee v Government of Malaysia [2019] 12 MLJ 1).

Which takes us to the law that is applicable on infectious diseases. No, not Section 15 (1) of the Prevention and Control of Infectious Diseases Act 1988 but Section 269 of the Penal Code.

In deciding “no further action” (NFA) against Plantation Industries and Commodities Minister Mohd Khairuddin Aman Razali, the attorney-general said there was no offence for a charge under Section 15 (1) of Act 342.

But, the minister should know that a returnee to Malaysia must undergo 14-day self-quarantine. Ignorance of the law is not an excuse.

The word “contact” in Section 15 (1) means any person who has been or is likely to have been exposed to the risk of contracting an infectious disease, including any person arriving from an infected area.

Having returned from Turkey, the minister should be a person who was likely to have been exposed to the risk of contracting Covid-19 – an infectious disease – and can be, therefore, considered a contact.

Being a contact, the minister shall not unlawfully or negligently do “any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life”. It is an offence under Section 269 of the Penal Code, which is punishable with imprisonment for a term that may extend to six months, with a fine or both.

It is said that, where the word “unlawfully” appears in a provision constituting a criminal offence, it generally implies “without lawful justification or excuse”. An unlawful act is an act forbidden by law, or which furnishes grounds for a civil action (See Section 43 of Penal Code).

As for a negligent act, the test is to consider whether or not a reasonable man in the same circumstances would have been aware of the likelihood of damage or injury to others resulting from such conduct and have taken adequate and proper precautions to avoid causing such damage or injury.

Wasn’t the minister a reasonable man when, being a contact as defined under Act 342, he did not observe the 14-day quarantine?

If the rule of law is as simple as to mean no one is above the law, isn’t there a charge that can be preferred against the minister under Section 269 of the Penal Code?

It is, therefore, hoped that the powers that be will review the NFA decision against the minister and uphold the rule of law as exemplified by none other than the king – truly the people’s king.

Hafiz Hassan reads BebasNews


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