ON April 17, it was reported that Attorney-General (A-G) Idrus Harun has withdrawn the blanket approval given to the health director-general to issue compounds to those who violate the movement control order (MCO).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 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 RM1,000.”

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 A-G 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 A-G take away the power of the health DG under Section 25 of 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 A-G 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 A-G take away the powers granted by the Parliament to the health DG vide Section 25 of Act 342?

Article 145(3) 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.

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

Is Section 25 of Act 342 which gives the health D-G powers to compound compoundable offences interfering with the A-G’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 by the health D-G having 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 A-G.

Issuing compound notices is distinct from instituting, conducting or discontinuing proceedings.

On saying that, it is further submitted that the A-G does not have any right to take away the powers of the health DG under Section 25 of Act 342, neither does the A-G 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 A-G, 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 A-G. – April 25, 2020.

* Puthan Perumal reads The Malaysian Insight.

* 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.