Act 342: Safeguarding or Destroying Malaysia?
Knowing How and Why, and What We Can do to Fix It
Objectives: What is this document about?
The objectives of this document is are:
1) To educate the reader of the very critical role Act 342 played over the past two years in leading Malaysia to where it is now -- a nation wrecked economically & socially.
2) To educate the reader about the direction of the amendments to Act 342 currently being proposed by the administration, and the role these amendments will play (if passed) to further destroy Malaysia.
3) To put forward a point of view with the intent to course-correct the current flow of events, while also ensure that the highly destructive mistakes of the past two years can never be repeated.
Introduction:
How much power should one man (or woman) have? Should the “powerful one” be able to do as he pleases with anyone, without ever having to suffer the consequences? Should she be able to dictate that members of society not be able to work, unless those people meet some arbitrary, dreamed up criterion?
Should the “powerful one” be able to prevent sections of the population from feeding their families? Importantly, should the “powerful one” ever be able to take actions that directly contravene the constitution of the nation, with total and complete impunity?
Some readers may immediately react with a powerful, visceral “NO” in answer to the above questions. Others may say: “it depends on whether or not there is imminent and terrifying danger that must be diverted!”
And therein lies the problem. How great does a danger need to be for any society to allow the above crimes to proceed without question? More importantly, who is to decide that the nation is, in fact, faced with such a terrible danger?
These are not rhetorical questions. Rather, they relate very directly to the mess in which Malaysia finds itself today.
There are three main sections to the document:
In Section 1, we look at how the mechanisms of Act 342, seemingly there to safeguard the country from infectious disease, have instead wrecked the economy and the very fabric of Malaysian society.
In Section 2 we explore the details of Act 342 as currently written, showing how the wording in the Act allows for abuse. We then go on to look at the detail of the proposed amendments to 342, demonstrating the very dangerous implications of these proposed amendments.
In Section 3 we suggest a completely new direction for Act 342, so that it can be rewritten in a way that meets the real needs of infectious disease control, while simultaneously ensuring adequate checks and balances that will avoid future misuse of the Act.
Without these protections being put into place, Act 342 in its current, or potentially modified form, would virtually guarantee the destruction of the country.
Section 1: Malaysia Wrecked by the “Health” Act
While some might say “all is well” with Malaysia, there is a point of view that Malaysian society is now in tatters. The economy has been wrecked. Many thousands are now without work, and their chances of finding new work are somewhere between slim and zero. Small to medium sized businesses have been decimated. Suicides are on the rise. People are now begging for food on the streets. Families have been torn asunder. Two years of education for young people have been lost into the sands of time. The list of damages done in the past two years could fill a tome.
The question is, how could all this happen? How could a prosperous, happy nation be turned into the worst performing economy in Asia, with no positive turnaround in sight?
Quite simply, the keys to the castle, with zero checks and balances, appear to have been handed over to a small group of people who can dictate what our nation does. It is well & good if this group is competent and well-informed. But if the opposite is true where they might have been mis-informed, or in the extreme – plainly incompetent or criminal, the results can be disastrous.
The mechanism for this handover of almost absolute power is simple and, on the surface, benign. It is Act 342 – The PREVENTION AND CONTROL OF INFECTIOUS DISEASES ACT 1988. If one reads Act 342 in detail, however, the nature of the problem becomes obvious.
In essence, Act 342 is written in such a way that it allows the Health Minister and the “Authorised Officers” under his/her direction to do any or all of the following:
· Imprison people without a warrant, for an indefinite period of time, purely upon suspicion (the word “quarantine” is used to make it sound more “healthy”)
· Force individuals to take medications without their consent
· Force individuals to take injections without their consent
· Take any action which the Health Minister and Authorised Officers may think is a good idea
· Use whatever force they want on any individual who will not quietly comply with the above commands emanating from the Health Minister
· Charge and fine any individual in the event that the force mentioned above did not achieve the desired compliance
· Criminalise actions by individuals who wish to protect their bodily integrity
The Minister can also put people into various categories, for the purpose of imposing all of the above abuses on one group but not another, and all of this can be done at the discretion of the Minister.
What everyone must understand is that ALL of the above can be done simply because the Minister of Health believes that there is an epidemic of some infectious disease either happening or about to happen.
Please read the details, with examples from Act 342 in Section 2 below, so you can confirm for yourself that what we say here is true.
The Essence of the Problem of Act 342 - Subjectivity
The essence of the problem created by Act 342 is that there is a complete lack of any evidential criteria that could be used to restrict or modulate the actions of the Minister of Health or any of his Authorized Officers. In many places in the Act we read: “reason to believe” or “suspected”, but nowhere do we read the actual solid, quantitative, scientifically based evidence that should be the required criteria for the Minister of Health, or his Authorised Officers, to both declare an epidemic or an infected area, or to determine that any individual should be subject to the demands of the Minister or his agents.
We also do not read any objective criteria that would need to be in place to ensure that the protections provided in the Federal Constitution could only ever be ignored in the most dire of circumstances. Given how Act 342 is currently written, the Federal Constitution can be trampled into the mud without any reason or recourse.
We also do not read of any specific checks and balances that should be in place so that the Minister’s power to actually declare an epidemic can be regulated or challenged. That too is problematic.
This lack of objective criteria – prepared in advance – and the lack of meaningful checks and balances leaves the entire system open to abuse. It’s fair to say that, in the event of a Health Minister who is extremely ethical, honourable, truthful, professional and knowledgeable Act 342 would not necessarily be a problem (but it could still be). However, in the absence of any or all of those qualities, Act 342 becomes a loaded gun pointed at the head of all Malaysians.
Right now, that gun is not only loaded, but the hammer is being pulled back with proposals for amendments that make this Act even more draconian.
In the amendments being proposed for Act 342, the complete and total freedom given to the Minister or the Director General of Health is obvious. As an example, the new section 21 reads as follows:
“The Director General may issue any direction in any manner, whether general or specific, to any person or class of persons to take any measures for the purpose of preventing and controlling any infectious disease.
(2) Any person who contravenes any direction of the Director General issued under subsection (1) commits an offense.”.
Under this wording the Health Officials can do whatever they want to any member of Malaysian society because…. that’s what they want to do. Clearly, there is absolutely no check or balance to the power being offered in these new proposed clauses.
COVID-19 Exposes the Dangers of Act 342
How dangerous is Act 342 really? Let’s look at COVID-19 as the current case in point. Based on the answer to an MP’s question in Parliament during 2021, Malaysia had only 412 deaths linked to COVID-19 in 2020. There is no information about other comorbidities but given what is known about age stratification of COVID-19 deaths around the world, the 412 deaths in Malaysia most likely took place in the elderly who also had other health conditions.
Importantly, All Cause Mortality in Malaysia for 2020 was LOWER than 2019. This hardly looks like an epidemic, yet an epidemic was declared and draconian measures to deal with that epidemic took place beginning early 2020. The decision to declare an epidemic was made apparently without any meaningful objective evidence to support the Minister’s belief that the country was facing a highly dangerous crisis. At least, as of this date, no evidence has been presented that would allow open and public scrutiny.
During 2021 there were approximately 30,000 excess deaths in Malaysia purportedly linked to COVID-19, and the All Cause Mortality in Q3 of 2021 spiked to a level not seen in over a decade. These deaths occurred AFTER the implementation of the “pandemic limiting” actions ordered by the Health Minister.
We must ask ourselves the question – was the pandemic (epidemic) declared without the necessary objective data that could support such a decision? And, did the actions that are supposed to stop that pandemic in themselves cause the health damage that is now showing up in the national statistics?
Section 2: Detailed Review of “Killer Clauses” in Act 342
In this section, we look in detail at clauses within Act 342 that, in essence, allow free reign by the Minister of Health, under any declared excuse of an epidemic, pandemic, or outbreak of infectious disease. Only by understanding the meaning of the clauses in Act 342 can we understand how Malaysia has, over the past two years, been brought to its knees.
We begin by looking at Act 342 as it is currently in force, then explore the proposed changes for Act 342 and what these imply.
What is an Epidemic
To start, we look at how an “Epidemic” is defined within the act.
Within Act 342 “Epidemic” means “an extension of a disease by a multiplication of cases in an area;”
While this appears to be objective, it literally has no useful meaning for the identification or control of an infectious disease. Based on the definition, one could have 10 cases that get multiplied by a factor of 1.2 (20%) every 2 months, which would mean that you only get to about 20 cases within a year. However, because that is indeed a “multiplication” then the Minister of Health could declare an epidemic!
Once the epidemic was declared, based on other clauses in Act 342 the Minister could then order whatever actions he or she felt were necessary, without any objective evidence or reason.
Acting Upon International Information
Reading down through the ACT we meet Section 6 which reads:
“1) Whenever notification is received under the International Health Regulations that an infected area exists outside Malaysia, the Minister may by order in the Gazette declare such area to be an infected area for the purposes of this Act”
This means that if some bureaucrat elsewhere in the world sends an email to the Malaysian Government saying “we have an infected area”, then the Health Minister can then make a formal public declaration to that effect. What we don’t see in the Act is any language speaking of the evidence required, including the quality of that evidence received from overseas, or necessary procedures for auditing that evidence that would help ensure that The Minister is actually making a sensible decision.
In the case of COVID-19 the World Health Organisation declared a global pandemic based on only 6 deaths, and terribly faulty computer models that have proven to be inaccurate by large orders of magnitude. Was this ever reason for Malaysia to declare any form of epidemic affecting Malaysia? Rational voices would say “no”.
Criteria for Deciding Infectious Disease Outbreak in Malaysia
The criteria for declaring an infectious disease outbreak within Malaysia is also very subjective.
In section 11 we read the following:
“(1) If the Minister is satisfied that there is an outbreak of an infectious disease in any area in Malaysia, or that any area is threatened with an epidemic of any infectious disease, he may, by order in the Gazette, declare such area to be an infected local area.”
This means, in effect, that the Minister can decide – out of thin air – that there is an outbreak of an infectious disease in Malaysia. Look at the words: “if the Minister is satisfied”.
Conspicuous by its absence is any definition of objective criteria that would be necessary for any declaration of an outbreak. Based on the definition given in Section 11, the Minister could hear a story that one person in an area was infected with “something”, or he could simply believe an area to be threatened (without objective criteria) and – voila – he can proceed to order lockdown of an area! We have seen lots of this happening in Malaysia in 2020 and 2021.
Actions to Deal with an Infectious Disease
Reading on through Section 11 of Act 342 we see:
“(2) The Minister may, by regulations made under this Act, prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area. “
In plain language this means that the Health Minister can decide to order any action that he (or she) wants, as long as in his/her view it might control or prevent the spread of an infectious disease. So, the clause really means that the Minister can order whatever he likes, irrespective of any objective criteria for effectiveness, and without paying attention to any collateral damage that may be caused by his orders.
Enforcement of Actions to Deal with an Infectious Disease
Once the Minister has ordered certain actions to be taken, those orders can be forced upon members of the public, irrespective of any objections that members of the public may have.
In section 11 of the Act we read:
“(3) During the continuance in force of an order made under subsection (1), it shall be lawful for any authorized officer to direct any person or class or category of persons living in an infected local area or in any part thereof to subject himself or themselves-
(a) to treatment or immunisation;
(b) to isolation, observation or surveillance, the period of which being specified according to circumstances; or
(c) to any other measures as the authorized officer considers necessary to control the disease.”
If we reword this into plain English it means: if the Minister believes there is an epidemic, then the people authorized by the minister have complete and total discretion to:
(a) Force people to take certain medicines or be injected with anything at all without their consent;
(b) Force people into isolation, with surveillance, for as long as the authorized people want;
(c) Do anything else to people that the “authorized ones” think might be a good idea at the time.
The remainder of section 11 reads:
“(4) It shall be lawful for an authorized officer to use such force, with or without assistance, as may be necessary and to employ such methods as may be sufficient to ensure compliance with any direction issued under subsection (3).
(5) Any person who refuses to comply with any direction issued under subsection (3) commits an offence. ”
Which, again in plain English means: if you disagree to be injected, force fed some “medicine”, isolated for an indefinite period of time, or mistreated in a myriad of other ways limited only by the imaginations of the “authorized officers”, then those same authorized officers are entitled to beat you to a pulp until you submit, and then they can charge you in court for their trouble.
In section 7 of the Act we read:
(3) If in the course of a medical examination under subsection (1) an authorized officer finds or has reason to believe that any person is infected or is a contact, he may order such person-
(a) to be removed to a quarantine station and detained therein for isolation or observation; or
(b) to be put under surveillance until such time as the disease is no longer communicable to others.
It is very important to realise none of the clauses presented above have mentioned any due process. This in effect means that an individual can be detained by the authorities for an indefinite period of time merely based upon some form of suspicion that maybe they are sick with something.
There is absolutely no objective criterion involved, and the actions allowed are all open ended and totally at the discretion of the “Authorised Officers” who are taking these actions . This actually means that some “Authorized Officer”, with or without any medical or scientific knowledge or background, only needs reason to believe that a person may be infected with something. Upon the basis of that belief (which is not fact, and for which there is no evidence) the “Authorized Officer” can proceed to imprison a person against their will until such time as the “Authorized Officer” believes that the imprisoned person is no longer a danger. Which, given the lack of any objective criteria, could be years.
Proposed Amendments of Act 342 Create Exponentially Greater Danger
We now look at the proposed amendments for Act 342.
Definitions
2. The Prevention and Control of Infectious Diseases Act 1988 [Act 342], referred to as the “principal Act” in this Act, is amended in section 2—
(a) by deleting the definition of "health inspector";
(b) in the definition of “authorized officer”, by substituting for the words “any health inspector, or any officer” the words “any Environmental Health Officer, or any suitable person”;
Comment: Whereas previously, there were specific “authorized officers”, if the planned amendment for Act 342 goes through, the numbers and types of people who could be co-opted by the Minister of Health goes up significantly. Basically this change means that the Health Ministry can use anybody that they want to enforce directions as long as the word “epidemic” is invoked.
(c) in the definition of “Health Officer” -
(i) by substituting for the words "and its port" the words ", its port and land boundary"; and
(ii) by substituting for the words “Deputy Director General of Health, Director of Health Services, any Deputy Director of Health Services, any Director of State Medical and Health Services, any Deputy Director of State Medical and Health Services, Director of State Medical Services of Sabah and his Deputy and the Director of Sarawak State Medical Services and his Deputy ”with the words“ any Deputy Director General of Health, Director of Disease Control, any Deputy Director of Disease Control, State Director of Health and any Deputy Director of State Health ”; and
(d) by inserting after the definition of “Health Officer” the following definition:
‘“ Environmental Health Officer ”means any Environmental Health Officer in the service of the Government or any local authority including an Assistant Environmental Health Officer;’.
Comment: The wording here basically expands the power of the Ministry of Health into a full governmental hierarchy that, in times of a declared health emergency, essentially has the potential to create a “parallel government”, sidestepping the authority of all other normal government departments, or turning those departments into subsidiaries of the Ministry of Health.
Amendment of section 10
3. Subsection 10 (2) of the principal Act is amended—
(a) by inserting after the words "or come to know" the words "or have reason to believe or suspect"; and
(b) by substituting for the words "in the form prescribed by regulations made under this Act" the words "in such form as the Director General may determine".
Comment: In the original Act 342 we saw that a major problem was the use of generalizations, without the need for evidence or objective criteria, giving the Minister of Health the freedom to make things up as he goes along. With the amendments proposed for section 10, rather the rectifying this dangerous trend, it is made worse. Where previously the authorities would need to “know” something to be true, under the amendment they only have to “have reason to believe or suspect”. So, in essence, the Act would be downgraded from requiring knowledge, to accepting suspicion alone as a basis for action.
In (b) we see that there is another downgrade, moving from “prescribed by regulations” (i.e. some degree of checks and balances, based on written regulations) down to “whatever the Director General wants to do”. The move away from accountability towards dictatorial powers could not be more clear.
New section 14a
4. The principal Act is amended by inserting after section 14
the following sections:
“Isolation or surveillance of infected persons and suspect
14a. (1) An authorized officer may order that any person infected or whom he has reason to believe to have been infected with an infectious disease to undergo isolation or surveillance at any place and for such period as he thinks fit or until he may be released without harm.
(2) For the purposes of subsection (1), an authorized officer may use such force as is necessary to ensure that his order is complied with. ”.
Comment: This new section is worrying because, once again, any semblance of checks and balances is being removed. 14a. (1) means, in essence, that based on suspicion any individual can be locked up for as long as any authorized officer wants. And 14a. (s) means that, if an individual objects to this unlawful imprisonment, the authorized officer can use any amount of force to ensure compliance which, of course, could entail beating someone senseless.
New section 15a
5. The principal Act is amended by inserting after section 15
the following sections:
“An order to wear or use a device detection, etc.
15a. (1) An authorized officer may issue any order, for the purpose of detection, to any person who is infected or whom he has reason to believe has been infected, or any contact.
(2) The order referred to in subsection (1) may include an order to wear or use a tracking device or such form of tracking device as may be specified by the authorized officer. ”.
Comment: As with the above suggested amendments, this new section gives the Health Authorities the power to electronically tag anyone they want, just like cattle in a herd in a field. All that is required is that the authorities believe, without evidence, that someone might be infected with something.
New section 21a
6. The principal Act is amended by inserting after section 21 the following section:
“Director General's instructions
21a. (1) The Director General may issue any direction in any manner, whether general or specific, to any person or class of persons to take any measures for the purpose of preventing and controlling any infectious disease.
Comment: 21a. (1) is a catch-all clause which basically says “if the Director General thinks it’s needed (because – “infectious disease”) then he/she can direct others in society to do anything that he/she wants them to do.” This, of course, includes ordering people to stop working; ordering companies to breach contracts with their staff; ordering people designated by the Director as dangerous into house arrest; etc.
(2) Any person who contravenes any direction of the Director General issued under subsection (1) commits an offense. ”.
Comment: This clause basically means that any individual who objects to any command from the Director General of Health, no matter on what basis, will be criminalized.
New Part iVa
7. The principal Act is amended by inserting after Part IV
the following sections:
“Part iVa
ENFORCEMENT
Power of investigation
21b. An authorized officer shall have all the powers necessary to conduct an investigation under this Act in accordance with the Criminal Procedure Code [Act 593].
Comment: This clause basically means that, if an individual is suspected of having an infectious disease, or being of any danger (based on any wild assumptions held by the Health Authorities), then that individual can be investigated as if they were guilty of a criminal offense.
Power to provide information
21c. An authorized officer may require any person to provide any information relating to the prevention and control of infectious diseases.
Comment: This clause means a that any privacy whatsoever is thrown to the winds. If an authorized officer suspects that an individual could have some information related to an infectious disease, the that individual can be compelled to give whatever information the authorized officer wants. This could include anything, including bank account information, or any other information normally protected by privacy laws.
New section 22a
8. The principal Act is amended by inserting after section 22 the following sections:
“Offenses by corporations
22a. (1) Where a body corporate commits an offense under this Act, any person who at the time of the commission of the offense was a director, chief executive officer, chief operating officer, manager, secretary or other similar officer of the body corporate or who purports to act in any such capacity or who is in any manner or to any extent responsible for the management of any affairs of the body corporate or who assists in such management—
(a) may be charged separately or jointly in the same proceedings together with the body corporate; and
(b) if the body corporate is found guilty of committing the offense, shall be deemed to be guilty of committing the offense unless, having regard to the nature of its functions on that nature and all the circumstances, he proves—
(i) that the offense was committed without his knowledge, consent or consent; and
(ii) that he has taken all reasonable steps and has exercised all due diligence to prevent the commission of the offense.
Comment: This section basically means that if any company chooses not to follow the directions of the Director General of Health, then the company and the officers of the company will be held liable for criminal offenses.
(2) Where any person under this Act may be liable to any punishment or penalty for his act, omission, neglect or default, he may be liable to the same punishment or penalty for every act, omission, neglect or default of any- which employee or his agent, or the employee of the agent, if the act, omission, neglect or default has been committed—
(a) by the person's employee during his employment;
(b) by the agent while acting on behalf of the person; or
(c) by the agent's employee during the employee's employment with the agent or otherwise on behalf of the agent acting on behalf of the person. ”
Comment: This clause means that companies will be liable for the actions any employees or agents should those individuals choose not to follow the directions of the Director General of Health.
Substitution of section 24
9. The principal Act is amended by substituting for section 24 with
the following section: “General penalties
24. Any person who commits an offense under this Act for which no penalty is expressly provided may, on conviction—
(a) in the case of a person being an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or
(b) in the case of a body corporate, to a fine not exceeding two million ringgit. ”.
Comment: This means that, following the criminalisation of any disagreement or choice not to follow commands from the Director General of Health, an individual or company can be penalized to a degree that can totally destroy the individual, or the company (assuming the company is relatively small).
Substitution of section 25
10. The principal Act is amended by substituting for section 25 with
the following section: “Compounding of offenses
25. The Director General or any authorized officer authorized for this purpose by the Director General in writing may, with the written consent of the Public Prosecutor, at any time before a charge is instituted, compound any offense under this Act or any regulations made under this Act which have been prescribed by the regulations as an offense which may be compounded by making a written offer to a person reasonably suspected of having committed the offense to compound the offense when paid to the Director General—
(a) in the case of a person being an individual, a sum not exceeding ten thousand ringgit; or
(b) in the case of a body corporate, a sum not exceeding one million ringgit. ”.
Comment: This clause basically means that, having criminalized both free choice regarding one’s health, and the freedom to disagree with Health Authorities operating on the basis of personal opinion rather than science and data, the authorities are quite happy to accept large amounts of money in lieu of using violence against those who dare to disagree with the diktats of the Health Authorities.
Amendment of section 31
11. Section 31 of the principal Act is amended by inserting after
subsection (2) the following subsections:
“(3) Regulations made under this Act may prescribe any act in contravention of the regulations to be an offense and may prescribe a fine not exceeding fifty thousand ringgit or imprisonment for a term not exceeding two years or both- both. ”.
Comment: This is further criminalisation of personal choices of individuals or groups, irrespective of personal knowledge, data, circumstances, that in any way do not follow – to the letter – the whims of the Director General of Health, such whims being issued on the basis of evidence free belief that there may be an infectious disease or pandemic in the offing.
Section 3: Complete Rewrite of Act 342 Required
It is clear from the above analysis of the details of Act 342 that significant dangers to society are created purely as a consequence of the way in which Act 342 is written, and it can or will be made worse by the amendments currently being proposed. As mentioned above, in its current form, the act is written to allow the Health Minister to declare the presence of a serious infectious disease or epidemic without any mechanism of accountability, and to direct all sorts of actions that can be very destructive to individuals and the whole of society, again without any true mechanism for effective correction or accountability.
The new amendments being proposed for Act 342 extend these powers to an unlimited degree, unchecked in any meaningful way.
It is agreed that Act 342 needs to be changed, but absolutely not in the way currently being suggested. A completely different approach needs to be taken.
If Act 342 is to meaningfully support Malaysians to live healthy and productive lives, without fear of arbitrary measures based only on the beliefs of those in power rather than on objective and verified evidence, Act 342 needs to be completely rewritten. Prior to that rewriting, Act 342 should be repealed in its entirety.
What should be included in a completely rewritten Act 342? The following are a number of useful starting points:
· A clause must be written into Act 342 stating in plain language that no actions by the Ministry of Health under any circumstances can violate any of the protections for the people of Malaysia provided within the Federal Constitution.
· A clause must be written into Act 342 stating that at no time will actions of the Minister of Health impair any natural individual rights, or community rights in any region or local area.
· A clause must be written into Act 342 stating that the Minister of Health is prohibited from acting arbitrarily upon the decisions or suggestions made by international supranational bodies or organisations without first presenting in full to the Malaysia people and parliament, and debating the relevance and appropriateness of any such international recommendations taking into account local conditions and the unique needs of Malaysia as a sovereign nation, and the needs of its various people.
· All the information used by the Health Minister to make any determination of the existence and spread of a dangerous infectious disease should be made publicly available, in real time, and be open to challenge and debate.
· Information about known mechanisms of transmission must be made publicly known, with all scientific studies that both support or fail to support the hypothesis about transmission mechanism. In the absence of clear evidence of a mechanism of transmission, the government should avoid providing any directions that could impact the normal freedoms of the people, due to the likely high costs of such change compared to any known benefit from the directions to be given by the Minister.
· The mechanism by which a disease extends in an area must be demonstrated to the public with clear, irrefutable scientific evidence before the Minister makes any directions about how to prevent disease spread.
· The cause and the determination of cases must have sound scientific evidence and should be open to analysis and scrutiny at any time even after policies and regulations have been in place, and should new evidence be available to prove that any given policy is in error, that there should be immediate allowance for change in the course taken.
· All the information used by the Health Minister to make any determination as to the measures used to stop the spread of dangerous infectious disease should be made publicly available, in real time, and be open to challenge and debate
· The Ministry of Health must respond to any public enquiry set up by any group that is initiated due to concerns about the data, the science, or the logic used by the Ministry in both announcing and addressing a pandemic or infectious disease outbreak.
· Objective criteria that allow a scientifically balanced assessment of the presence (or otherwise) of an epidemic must be written into Act 342. Those objective data must include actual immunological data criteria, including death statistics, autopsy results, seroprevalence data, and other quantitative techniques that can prove beyond reasonable doubt that a deadly disease that has the ability to drastically affect national security is in fact at play.
· Any declarations of an epidemic must clearly publish the objective data used in the determination that an epidemic is at play, and abnormal levels of death must be one of the criteria that is met before an epidemic can ever be declared.
· The use of computer-based predictive models should be banned as a means of generating policy, unless fully substantiated by on-the-ground epidemiological observations and quantitative research that verify the accuracy of any predictive models.
· Any computer-based predictive models that are relied upon in any way by the Ministry of Health in the determination of the presence of an epidemic must provide both best and worst case scenarios, and all scenarios from absolute best to absolute worst must be made publicly available before any declaration of an epidemic is made by the Minister.
· Act 342 must clearly state that prevention or containment measures must never take the form of blunt prohibitions, forced isolations, mandatory medical interventions, or any form of act amounting to harm and violation of the will and consent of individual men and women, but rather they should be in the form of collaboration, exploration, education, open dissemination of information without censorship, voluntary participation, and promotion of free market solutions by all localities and groups and individuals.
· All measures employed by the Minister of Health must take into consideration an individual's overall and long term well-being, and his ability and potential to pursue the path of his own happiness and aim.
· The Act must include a clause stating that any public health officials who oversee both the declaration of an epidemic, or the actions intended to prevent or stop an epidemic, can be sued by the public for negligence.
· The Act must include a clause stating that, in the event of a Judicial Review being initiated by any member of the public to challenge declarations and actions emanating from the Ministry of Health, that such Judicial Review must be given leave and that, by law, the Government and Ministry of Health cannot contest the decision by a judge to give leave for a Judicial Review.
Any clauses allowing the Health Authorities to do whatever they want, for any reason that they care to give, should be removed in their entirety. It is time to bring accountability back into the process of managing health issues and infectious diseases within Malaysia.
In the following appendix, we provide specific examples of many dangerous clauses in the current version of Act 342. These all need to be addressed when a complete rewrite is done.
Conclusion:
In this short paper we have looked at Act 342 - The PREVENTION AND CONTROL OF INFECTIOUS DISEASES ACT 1988 – and demonstrated how this Act and the way it is written has created the conditions that have allowed the Malaysian society and economy to be devasted over the past two years.
We have also shown how amendments proposed for Act 342 could very well turn the Ministry of Health into a dictatorship, wherein fact-free announcements of the presence of supposedly dangerous infectious diseases can be used to breach every guarantee in the Federal Constitution. This is a clear and present danger to the people of Malaysia.
This danger can be averted. To avert the danger demonstrated above, Act 342 must be completely rewritten in a way that ensures objective and scientific assessment of all-health related threats, the removal of dictatorial powers from the Ministry of Health, and the engagement of the people of Malaysia in understanding and responding intelligently to any true health threat that may in future impinge upon Malaysia.
In order to bring Malaysia away from the brink of destruction that has been caused by the massive misuse of Act 342 beginning early 2020, and return the country to a path of health and prosperity, politicians, lawyers and the rakyat must come together urgently to debate and totally rewrite Act 342 into a piece of legislation that is generative and life affirming for society and the people of Malaysia.
May this short paper be the seed.