LETTER | Can AG take away Health DG's power under Section 25 of Act 342?

LETTER | On April 17, it was reported that Attorney-General Idrus Harun had withdrawn the blanket approval given to the health director-general (currently Dr Noor Hisham Abdullah, above) to issue compounds to those who violated the movement control order (MCO).

Section 25 of the Prevention and Control of Infectious Diseases Act 1988 (Act 342) states:

"Compounding of offences - The director-general or any public officer authorised for this purpose by him in writing may be prescribed by regulations as compoundable by collecting from the offender a sum of money not exceeding one thousand ringgit."

As it stands, Parliament has passed a law that gives the Health DG (and public officers authorised by him in writing) the power to compound compoundable offences under Act 342.

If that power is to be taken away from the Health DG, only Parliament can do it.

This begs the question, does the AG even have to give approval to the Health DG to carry out his powers pursuant to Section 25 of Act 342?

This would be followed by a second question - can the AG take away the power of the Health DG under Section 25 of the act to issue a compound?

It is humbly submitted that if the Health DG through Act 342 is in any way usurping the constitutional powers given to the AG vide Article 145(3) of the Federal Constitution, then the issue of unconstitutionality may arise. However, I shall leave that discussion to the constitutional experts.

For the purposes of discussion here, however, the question is, can the AG take away the powers granted by the Parliament to the Health DG vide Section 25 of Act 342?

Article 145(3) of the Federal Constitution states:-

(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

It clearly relates to the power of the AG to institute, conduct or discontinue proceedings for an offence.

Is Section 25 of Act 342 which gives the Health DG powers to compound compoundable offences interfering with the AG's power to institute, conduct or discontinue proceedings for offences under Act 342?

To answer this, there must first be a definition or description of what are compoundable offences. There seems to be none at the moment.

That being said, it is humbly submitted that the Health DG having the power to issue compound notices under Section 25 of Act 342 does not violate Article 145(3) of the Federal Constitution and usurp the powers of the AG. Issuing compound notices is distinct from instituting, conducting or discontinuing proceedings.

On saying that, it is further submitted that the AG does not have any right to take away the powers of the Health DG under Section 25 of Act 342, neither does the AG have to give any approval for the same.

Therefore, the Health DG can invoke his powers under Section 5 of Act 342 to ask the assistance of the police and authorise the police to issue compound notices. He does not have to get the nod from the AG with all due respect.

The constitutionality of Section 23 of Act 342, however, may be called into question, but as I mentioned earlier, it is for the constitutional experts to discuss that issue.

Section 23 of Act 342 relates to the power of an authorised officer under Act 342 to conduct prosecutions, which seems to be the sole power of the AG.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.