Monday, April 13, 2020

Non-essential businesses should not be allowed to operate during MCO(Malaysian Insight)

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)
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)

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