Written by: Averroes
Spontaneously, a new cluster had grown from what we call as the Sivagangga Cluster. Lawmakers and health authorities are investigating this incident. It is said that this cluster originated as the infected person returned from India on a religious pilgrimage or spiritual journey. As of June 10, the government allowed self-quarantine instead at the government's premises if they were tested negative. They are required to wear a wristband for easy identification. and be sent to the hospital if found positive. The returnee went ahead to operate his restaurant business in Napoh, Kedah that grew (the virus) at an unprecedented rate. Five schools had been reportedly closed and other several areas within the State of Kedah.
According to DG Abdullah, the person who is said to be infected violated the mandatory home quarantine and is alleged to have caused 40-43 people to be infected. His violation caused 4,198 individuals screened and 920 others awaiting for their results. 73 kindergartens, 3 daycare centres were ordered to close for 28 days until 29th of August where they are required to conform to the 14-days quarantine period and another 14-days for observation period. Even countless of mosques were ordered to postpone any activities by the Kedah Islamic Religious Affairs Department.
178 individuals were also detained for violating the MCO rules with 20 from abroad since July 24. 169 of them were given compound, As of now, the government had initiated the Operasi Benteng with 65 roadblocks nationwide with 26,794 people inspected in their vehicles. The Senior Minister, Datuk Seri Ismail Sabri Yaakob states that 8,011 individuals have returned from 30 countires, and among the mentioned ones were India where the Sivagangga Cluster must have come back.
The law that would be applied is the Prevention and Control of Infectious Diseases Act 1988 (Act 342) and the (Measures within Infected Local Areas) Regulations 2020 which provides for the punishments, there are lawyers who suggest that more stricter laws should be implemented. Criminal lawyer, Datuk Geethan Ram Vincent states that this act is already adequate to circumnavigate around offences for spreading the Covid-19 disease. Due to this, the government had no choice but make individuals returning to go to government premises for quarantine and cancel the self-quarantine rule.
It is our responsibility if we discover that a person has symptoms or signs of the Covid-19 disease, we have to inform the authorities if they are hesitant or would not cooperate as under section 10(1) of the Act. The authorities include the nearest District Health Office, government medical centres or the nearest police station.
Moreover, he pointed to section 22(b) of the Act 342 where section 22(b) for offence generally is that, any person who disobeys any lawful order issued by any authorized officer which is then read with section 24 for general penalty is with the maximum of two years imprisonment. However, as of now the authorities are only using the Act's regulations to issue the compound of RM1,000 even when the offence can also be made up to six month's imprisonment as under Rule 11(1) of the Regulation.
According to Datuk K. Kumaraendran (Criminal Lawyer), he presents some intriguing notion that the authorities may resort to other laws as per section 269 of the Penal Code to charge those who violate the quarantine intentionally and on their own frolic, which in turn proliferate the lethal virus. Under this provision, it is when there is a negligent act likely to spread infection of any disease dangerous to life. It then provides for the punishment that carries the penalty of imprisonment which may extend to six months, a fine, or both as under section 271 of the Penal Code. He did agree that such possibility is narrow for one to be charged with this provision. Recklessness is a grave divergence from the standard of care.
There is "actus reus" for criminal negligence for the act or omission to adhere to the law and authority while "mens rea" is for the wanton or complete reckless ignorance of considering the lives and general safety of people, whether it be their neighbours, customers and people within their proximity.
He then suggest that section 12(2) of the Act can be used when no person was aware he suffered an infectious disease should knowingly expose others to risk of infection, conduct public activities, or act in a manner that he would reasonably believe could cause others to be infected. The weakness is that the Act should be amended to include other new diseases including Covid-19 as Part Two of the First Schedule specifically refers to HIV only when the Act was first passed in 1998 (as under sub-section (2) when they are not aware.) This is read with section 24 of the Act already stated above.
To add, he even states that if deaths were involved from the violation of the quarantine, would it lead to culpable homicide?
It could be interpreted in that sense, though it may be too general or over-arching as to prove that there is manslaughter, intention is important as an element of such offence. For culpable homicide which amounts to murder, then the knowledge of the accused needs to proven as it was likely from his own intention. We shall bring our attention to section 299 of the Penal Code for that matter. This is because, Rajesh Nagarajan, another lawyer provides that in other countries, there are even cases where HIV-positive individuals intentionally spread their diseases to other people, thus causing culpable homicide. The punishment is provided as under section 304 of the Penal Code.
Basically, culpable homicide is when death occurs from a person's action with the knowledge that he knows, death is probable to happen. So, it depends on whether the person who contracts the Covid-19 disease is aware that his actions would cause culpable homicide.
Another law as according to Salleh Bung, former federal counsel at the Attorney-General's Chambers, is under section 336 of the Penal Code that states, "Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others shall be punished with imprisonment for a term which may extend to three months or with a fine which may extend to RM500 or with both." Though all of this is dependent on the facts of the returnee.
To conclude, these are some of the laws and possible laws that can be imposed to deal with these troublemakers.
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