SENIOR Minister Ismail Sabri was reported on April 14 as saying:

“We give discretionary powers to the police. There are some cases where the police can use their discretion, maybe there is no need to bring it until the court. So, we give power to the police to decide, but the focus, meaning our focus last time, if it was to compound, now we don’t give priority to that.”

The question here is can the police conduct any prosecution in courts under the Prevention and Control of Infectious Diseases Act 1988 (Act 342) in the first place?

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 shariah court, a native court or a court-martial.

So, the attorney-general (which would include all deputy public prosecutors) have the power to conduct any proceeding for an offence. This would include offences under the Prevention and Control of Infectious Diseases Act 1988 (Act 342).

Section 23 of the Prevention and Control of Infectious Diseases Act 1988( Act 342) states:

“Prosecution.

“Any authorised officer may appear in court and conduct any prosecution with respect to any offence against this act or any regulations made under this act.”

So, any authorised officer may appear in court and conduct any prosecution for offences under the act.

Under section 2 of the act, “authorised officer” means any medical officer, any health inspector or any officer appointed by the minister under section 3;

“Further, under section 2 of the act, “medical officer of health” means any medical practitioner in the service of the government or any local authority, who is for the time being carrying out the duties of a medical officer of health in any area, district, or local authority area, including the airport and port limits thereof, and includes the director-general, deputy director-general of health, director of health services, any deputy director of health services, any state director of medical and health services, any state deputy director of medical and health services, Sabah state director of medical services and his deputy and the Sarawak state director of medical services and his deputy.”

The only two people, it would seem, who are allowed to conduct prosecutions under the act are the attorney-general (and his officers from the A-G’s Chambers) by virtue of the federal constitution; and the director-general of health (and authorised officers) by virtue of the act 342.

Now, nowhere does it mention that the police are allowed to do any prosecution in court. 

The police are confined to two roles under the act.

First, under section 5, it states:

“Police assistance, etc.

“Police, customs and immigration officers and officers from other government departments and agencies shall render such assistance as any authorised officer may request for the purpose of enabling him to exercise the powers vested in him by this act or the regulations made under this act.”

So, the police must give such assistance as the D-G may request to enable him to exercise his powers under the act. These would include the movement-control duties that the police are carrying out so diligently and various other crowd control and security duties. For these acts, Malaysians are grateful.

Second, under section 25, it states:

“Compounding of offences.

The director-general or any public officer authorised for this purpose by him in writing may compound any offence under this act or any regulations made under this act which has been prescribed by regulations as compoundable by collecting from the offender a sum of money not exceeding one thousand ringgit.”

So, the D-G may in writing authorise the police as public officers to compound any offence, which is compoundable under the act. 

The D-G, even if he wanted to, is not permitted under the act to authorise the police to conduct prosecutions in court. Prosecutions in court, it is humbly submitted, are not envisaged or contemplated to be in the category of “police assistance” as mentioned in section 5.

In the circumstances, it would seem that the police do not have any power to prosecute offences under the act, and all proceedings conducted by the police resulting in convictions could be rendered a nullity.

If Parliament intended for the police to have prosecutorial powers under the act, it would have been expressly worded in section 23. 

Without any express enabling provision in act 342 for prosecutions in court by the police, their role should be focused on the prevention and control by way of assistance to the D-G and to compound compoundable offences. – April 16, 2020.

* Puthan Perumal is an advocate & solicitor.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.