Non-essential businesses should not be allowed to operate during MCO
WE, the 29 undersigned groups,
organizations and trade unions are appalled that it seems to be no
longer an offence for companies/businesses not providing essential
services to continue operating during this movement control order(MCO)
to check the spread of Covid-19.
It not only defeats the intention of the MCO, which is in force since
March 18, but it also places hundreds of workers at serious risk of
contracting this disease that causes death, which also 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, practice social
distancing and for all business premises, save those providing
‘essential services’ to close during this MCO 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, furniture and wood product factories.
Recently, the government stopped Heineken from operating, even though
it could be argued the brewer was an ‘essential service’, 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 should not be simply given.
Note also the new regulations have reduced the list of essential
services but have also not added any new items to the list, like wood
industries that earlier was granted exemptions.
Individuals being charged in large numbers but not Companies/businesses
On April 2, Defence Minister Ismail Sabri Yaakob was reported saying
that more than 4,000 people have been arrested for flouting the MCO,
with nearly 1,500 charged in court. However, we do not hear of many
companies/businesses being charged for wrongly continuing to operate
during the MCO.
As far as businesses and companies are concerned, at the beginning of
the MCO, we read about action taken against a construction company who
allegedly violated the MCO but, there were no directors or managers
charged. Since then, we have not heard about businesses and/or companies
being charged.
First Regulations (until 31/3/2020) - Businesses/Companies Criminally Liable for MCO offences
Pursuant to the Prevention and Control of Infectious Diseases Act
1988, 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 from 18 March 2020 to 31 March 2020,
whereby in that Regulations it was clear that that companies/businesses
not providing essential services, or those that have obtained
exemptions, that continued to operate was 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 patrons 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 companies/businesses that did not provide
‘essential services’ or did not get a ‘prior written permission of the
Director General’(of Health) committed an offence if they continued to
operate, and the said business/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.’
2nd Regulations (1-14 April 2020) – Offence of Companies/Business Operating Absent
However, after the first MCO ended, and the second MCO began, new
Regulations had to be made, and so it was done – Prevention And Control
Of Infectious Diseases (Measures Within Infected Local Areas) (No. 2)
Regulations 2020 (PU(A) 109/2020).
What is glaringly absent from the new regulations, that is in effect
from April 1 until April14, was the absence of 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 which did not provide
‘essential services’ or ‘have obtained permission of the Director
General of Health’ who continued to operate. Hence, business operating
against the MCO 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/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 have been gazetted, that would make it an offence for
businesses, not allowed to operate, who continued to operate during the
MCO.
Note that when such a business/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 companies/businesses
After the first MCO was declared, we read that some ministers and/or
ministries, and even state government bodies have been granting
exemptions to certain companies/businesses, who on the face of it did
not provide any of the ‘essential services’ as listed in the MCO
regulations, which is also wrong for the MCO law only allows gives the
DG of Health (and now also the Minister of Health) 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, that came into power in the beginning of March, not
after a general elections, is a loose coalition of political parties and
independent MPs, where doubts still linger whether the new PM still
enjoys the majority support amongst 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 request for exemptions
by some of these MPs and/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 MCO to combat the spread, and
overcome Covid-19 that 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.
Worker’s right to be heard and judicial review also affected
When an employer company/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 have the right to
appeal the decision of the DG or Minister of Health, failing which they
do have a legal right to challenge any such government decisions in
court by way of a Judicial Review.
However, because of the MCO 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/or their trade unions to
even mount these appeals and/or challenges in court regarding these
exemptions. The right for workers 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 DG or
Minister of Health may also be invalid.
It was also disturbing to read that recently in Sabah, 2 employers
and six workers have been sentenced to two months’ jail for operating
and working during the movement control order (MCO). Penalising these
workers, who 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 MCO, in violation of MCO
period laws, who jeopardizes the life of so many ought not be offered
compounds, or even sentenced to pay a mere fines. The hirectors,
managers and others ought to given a deterrent sentence, at the very
least imprisonment for their actions/omissions that will put workers and
their families at risk.
Therefore, we
* Call on Malaysia to immediately amend Prevention And Control Of
Infectious Diseases (Measures Within Infected Local Areas) (No. 2)
Regulations 2020 (PU(A) 109/2020) to make it an offence for
companies/businesses operating in violation of the law during this MCO
period;
* Call on Malaysia to investigate and prosecute all who wrongly
granted permission and/or ‘exemptions’ that led to such
companies/businesses, who are not allowed to do so during the MCO
period, to operate, irrespective of whether they are currently
ministers, directors general, or state executive councillors;
* Call on the government, ministers and local governments to put
aside political and/or economic considerations during the MCO period, in
the interest of safety and health of all in Malaysia, as we battle
Covid-19. There must be no additional pressure on the DG(or Minister) of
Health, to grant exemptions for certain businesses/companies that do
not provide essential services;
* Call for the immediate publication and gazette of the list of all
companies/businesses allowed to operate during the MCO by reason of
exemption by the Ministry or DG of Health for the good of all
workers(and/or trade unions) involved; and
* Call for the immediate release of all workers who were sentenced to jail, simply for working as instructed by their employer.
Charles Hector and Apolinar Tolentino
For and on behalf of the following 29 groups
WH4C (Workers Hub For Change)
Malaysian Trade Union Congress (MTUC)
Persatuan Sahabat Wanita Selangor(PSWS)
Building and Wood Workers International (BWI) Asia Pacific Region
MADPET (Malaysians Against Death Penalty and Torture)
ALIRAN
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 (United Kingdom)
Labour Behind the Label, United Kingdom
Global Women’s Strike, United Kingdom
Legal Action for Women, United Kingdom
Payday Men’s Network, United Kingdom
Payday Men’s Network, USA
Parti Sosialis Malaysia(PSM)
Sabah Women’s Action Resource Group (SAWO)
Women of Color/Global Women’s Strike, United Kingdom
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)
* - Malaysian Insight, 10/4/2020
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See full statement at:-
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