LETTER | Revised Act 342 is rule by law, not rule of law

LETTER | The health minister was quoted to have said that the amendments to the Prevention and Control of Infectious Diseases (Amendment) Bill 2021, known commonly as Act 342, were generally aimed at repeated offenders, including big corporations that are making billions of ringgit during the pandemic and politicians who had repeatedly committed offences.

At the heart of the contention are the proposed fines of maximum RM100,000 or seven years’ jail under Section 24(a) for individuals and RM1 million for a corporate body under Section 25(b) who flout Covid-19 regulations.

The minister was quoted as saying that the government has done its bit with vaccination, early measures, SOP and control, but they need more weapons to face this pandemic and any future outbreak. And the weapon is increasing the quantum of fine against offenders.

This is not a problem with the Prevention and Control of Infectious Diseases (Amendment) Bill 2021 as such. This is a concern about the content of particular enactments. Act 342 could be impeccably drafted and even-handedly administered and still be hideously unjust.

Its enactment seems patently and undeniably to represent the rule of powerful officials. Legislation is a matter of will. The legislative process produces law simply by virtue of a group of people in an assembly deciding that a given law is to be produced.

And this is done by the very men - politicians - to whose power the Rule of Law is supposed to be an alternative.

The Rule of Law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land.

Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It means that the government uses the law to control the rakyat but tries never to allow the law to be used to control the government.

What the ordinary rakyat have in mind when they call for the Rule of Law, they often have in mind the absence of corruption, the independence of the judiciary, and a presumption in favour of liberty.

The law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. Legal institutions and their procedures should be available to the ordinary rakyat to uphold their rights, settle their disputes, and protect them against abuses of public and private power.

All of this in turn requires the independence of the judiciary, the accountability of government officials, the transparency of public business, and the integrity of legal procedures.

The proposed amendment - Act 342 - created the impression that there exists a tendency in our law to transfer powers of determination from the courts which act according to fixed principles to administrative commissions or officials vested with large discretionary powers.

Considering that normally the progress of law should be away from discretion toward definite rule, such a tendency should receive the most careful examination before it is rushed through Parliament as of now.

The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences.

Governance during this or future pandemic does require total mobilisation and management of all of the society’s manpower and resources. But a pandemic does not equate to a war-time scenario. It is still in peace and normal time.

And in normal times a society need not be managed but should be governed - and the rakyat should be largely left to our own devices, within a framework of general rules laid down in advance.

These rules - such as social distancing and masking - would operate impersonally to protect people from one another, not being aimed at any person or situation in particular and not being dependent for their operation on any expectation on the part of the government as to what the particular effects of their application would be.

The rakyat would know that they would not be molested by the government, provided they operated within the parameters of the general and impersonal rules. Human freedom did not preclude all government actions, but it does require that government action be calculable.

A government devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of law, granted that the rational point of such self-discipline is the very value of reciprocity, fairness, and respect for persons which the government holds in contempt.

Whether someone has followed government guidelines will often be a decent starting point for asking whether their behaviour is reasonable – the actual legal test. It is only a starting point, though.

The watchword to manage and enforce this and future pandemic should be "policing by consent". This means, above all, that the government tried to get people to comply with the law through explanation and encouragement rather than force.

The government should recognise that they need to keep the public’s respect. If public respect falters, that consent is harder to achieve.

The ultimate objective of these regulations is to make sure that “social distancing” works and is observed for a substantial period. In the vast majority of cases, that will be best achieved if individuals voluntarily follow non-binding guidance and advice.

It will not help further that objective if stories of the authorities overreach prompt members of the public to question the legitimacy of the authorities, and so to grow weary with social distancing. People are much more likely, in the end, to follow the guidance of authorities they trust.

Clearer communication from the government to the public could avert some of that confusion, and ensure that people do not fall into needless anxiety about harmless and lawful conduct.

This would help the authorities retain the trust of the public as they respond to the crisis, shoring up the legitimacy of the government’s social distancing policy and making it more likely that the public voluntarily follows any guidance that does not have the force of law.

In summary, Pakatan Harapan and all other politicians not in the governing coalition should object strenuously to any attempts to pass Act 342 in Parliament.

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