Written by Brendan Low
Human rights: controversy or constitutionality
This article will begin by providing a hopefully compromisable definition to the elusive term “human rights”. According to Public Law by Mark Elliott and Robert Thomas, human rights are rights that enjoy a “degree of permanence” by virtue of their constitutional protections. The backing of a nation’s constitution would make it “impossible or difficult” to enact legislation that is incompatible with human rights.
The case before us
On the 24th of April 2020, a 22-year-old university student was sentenced to 7 days imprisonment and an RM800 fine for breaching the conditions of the Movement Control Order (MCO) to deliver a cake she baked for her boyfriend. While on the facts of the case there are far better excuses to breach the MCO, the sentence and by extension the powers of law enforcement undoubtedly have potential adverse implications for human rights.
The source of police powers
The main Act of Parliament that the law enforcement derives its power from is the Prevention and Control of Infectious Diseases Act 1988 (“the 1988 Act”). S.11(1) of the 1988 Act allows a Minister to declare areas which have or are threatened by an “outbreak of infectious disease” as long as he “is satisfied that there is”. The Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 (“the Order”) did just that by declaring the entirety of Malaysia as an infected area for the purposes of s11(1).
This then gave the relevant government minister power via regulation to “prescribe…measures…to control or prevent the spread” (s11(2) of the 1988 Act) of Covid-19. This discretion relates merely to the minister to empower his police force. The discretion given directly to the police force by the 1988 Act is much more astonishing in scope. S11(3) allows “any other measures as the authorised officer considers necessary” on top of a requirement to subject people living in an infected local area – and by virtue of the Order that means everyone occupying Malaysian land – to “treatment”, immunisation, isolation, observation” and “surveillance”. This would immediately raise red flags for most people if not for compromising considerations in light of the circumstances. However, as Niall Coughlan in an interview with LawPod UK notes that although “it can feel like a time of complete state of acception where necessity makes the law” and human rights law is “flexible” with regards to the power given to authorities in considerations of “public interest”, human rights law “must consider to set some minimum standards”. I now go on to consider these standards in the Malaysian context.
The minimum standards of human rights in Malaysian law
In Malaysia, protection for human rights originates in the Federal Constitution – the “supreme law of the Federation” itself (Article 4). Among the minimum standards that would likely be triggered by the legally-sanctioned excessive powers of the authorities is thankfully found in Article 5(1) of the Federal Constitution. It reads: “No person shall be deprived of his life or personal liberty save in accordance with law.” There are two limbs in this provision. A) The prohibition of any deprivation of a person’s life or personal liberty, and B) the exception being that the deprivation is in accordance with law. At this juncture, it may seem that the second limb has put an end to our argument because as illustrated above, the deprivation in the university student’s case and possibly our own, is sanctioned by a regulation enacted legitimately under an Act of Parliament. However, the people have not lost the argument if we hold fast to the principle that human rights have a “minimum standard” (Coughlan) and a “degree of permanence” (Elliott and Thomas) that cannot easily be eradicated by legislation. In other words, here is where a balancing act comes in.
The balancing act
Eric Paulsen, the Representative of Malaysia to the Asean Intergovernmental Commission on Human Rights (AICHR), sets out the test for performing this balancing act:
“Any limitations on our rights must be necessary, proportionate and in the pursuit of a legitimate aim”
While Paulsen goes on to say that the current measures taken by the government “clearly satisfies” the above requirements, he too raises some concerns regarding detention and deportation of migrants. The point of this article is not to consider the merits of his balancing act, as the inherent nature of a balancing act is such that different people have different configurations of their weighing scale. It is, however, to perform a balancing act of our own.
On the one hand, the gravity of the disease warrants steadfast (if not over-attached) paternalistic intervention by the government – the only one who has the resources to do so – even if at the expense of human rights.
On the other, we have overcrowded prisons and converted police academies to detain some 15,000 people, with a range of jail terms and culpability, for contravening the MCO. This is in conjunction with a Senior Minister who tells the public that they “will be detained and charged” under Section 24* of the 1988 Act.
The Star is perhaps warranted in calling these measures “stern and uncompromising”.
It is vital to evaluate the counter-intuitiveness of a policy resulting in overcrowded prisons during an outbreak. In addition, from a legal perspective it is at the very least questionable whether all MCO-breaching conduct, which consists of a spectrum of egregiousness, amounts to a criminal offence. These people may be loiterers, midnight eaters, and procurers of cakes for lovers, but it is hard to picture them as criminals.
A jail sentence is supposed to protect the public from dangerous criminals while the 1988 Act and regulations made under it are supposed to protect the public from Covid-19. Evaluations on the balancing act must be done to ensure the two objectives are not conflated, otherwise we risk living in a Kafkaesque world.
Brendan Low is a law student at the University of Cambridge, UK. He is concerned with the philosophical problem of right and wrong, especially with regards to the carve out of philosophy the secular world has dubbed “law”. He believes that every human is endowed with fundamental rights, and would spend his lifetime studying its depth and latitude, even if but an inch of progress is made in contemplating the meaning of truth.
* This is the personal opinion of the writer and does not necessarily represent the views of ASASIkini.