IT isn’t viable to bring a criminal negligence suit against the government for failure to conduct enough Covid-19 tests to curb the spread of the virus, said lawyers.

It will be difficult to prove the government has acted unlawfully, they said in response to lawyer-cum-activist Ambiga Sreenevasan’s tweet that Putrajaya could be guilty of criminal negligence in its failing to test enough people for the virus.

A senior lawyer pointed out that Putrajaya is protected from legal action by the Emergency Ordinance.

Ambiga, however, said the law, including the penal code, is sufficient to deal with the government’s negligence

Lawyer Fahri Azzat told The Malaysian Insight that while a criminal negligence suit sounds interesting enough, it is not realistic.

“When we say the government, we’re talking about the executive and the executive includes the attorney-general. Is the A-G going to do something like that?

“Anything criminal will fall under the A-G’s purview. (The law states) he is the only one who can institute, withdraw or suspend prosecution.

“Given our present setup, I don’t know whether that is realistic, given our political configuration,” he said.

Fahri said a tort claim could succeed.

“A tort action is taken when a civil wrong has been done. You show that the government has a duty of care, I think that should be easy to do, but was there a breach of that duty?

“That is the part I think will be highly contentious because if there’s a duty of care, just what is the scope of that duty and what is the standard they’re supposed to reach?

“I think that is something that’s going to be heavily contested.”

He added that even if one manages to prove one’s case, the court may hesitate to hold the government accountable.

 I think they may even be a public policy question whether we should hold the government liable for this.”

He gave the example of the Highland Towers disaster where the apartment tenants who had suffered damage when the building collapsed had sued the Ampang Jaya Municipal Council.

“The Federal Court basically went on a policy basis to say no. They allowed MPAJ immunity because if it is going to be sued every time, it will be completely broke.

Lawyer Mohd Haniff Khatri said it is very difficult prove the government acted unlawfully or completely in negligence resulting in deaths in relation to Covid-19.

He section 10 of the Emergency (Essential Powers) Ordinance 2021 grants the government immunity.

“Under the section, there cannot be any action taken, any suit filed, any criminal charges brought or any procedures taken against the government or the officers who are doing their job,” he said.

“At the end of the day, even if there is criminality, there will be immunity,” he said.

Though the emergency is slated to end on August 1, Haniff said the ordinance will be in effect for six months after that.

“If the ordinance is then tabled in parliament, and they accept the ordinance as law, it will last forever.”

He added that if the public feels that the government has failed, they can bring a class action suit under civil law.

“But when it enters the realm of government policy, it is very difficult for the court to say that there is to be any liability.”

Ambiga told The Malaysian Insight that the government can be held liable for its actions under the penal code.

“Section 269 and Section 304A are the relevant sections under the Penal Code that relate to criminal negligence. Section 269 specifically relates to the spread of infectious disease.

“The information in the public domain (which is not complete) suggests that there is not enough testing, contact tracing and isolating being done thus directly endangering lives. This is in my view specifically addressed by the two sections,” she said.

Section 269 states that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.

Section 304A provides that whoever causes the death of any person, by doing any rash or negligence act not amounting to culpable homicide, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

She, however, added that if the government chooses to release all the relevant data, it may be able to show it has acted reasonably.

“The lack of testing, etc, shows a lower number, but it is also not allowing for a proper containment of the disease to occur. We are burying our heads in the sand to our detriment.

“I am not a medical professional but I can tell you that we have criminal laws that deal with precisely such situations,” she said.

Lawyer Lim Wei Jiat said pursuant to section 269, ministers and other public officers are not exempt from criminal negligence charges if they can be proved.

“Of course, I don’t think the government will actually be charged with this.

“But Ambiga’s point is that the government’s mishandling of this pandemic is serious enough to warrant criminal action,” he said.

Health experts have warned that Malaysi is seeing a dip in new Covid-19 cases because of fewer tests rather than effective containment measures.

On June 1, more than 100,000 tests were conducted and 7,105 came back positive. On June 14, 70,044 tests were conducted and 4,949 came back positive.

The average positivity rate is 6.93%, which is significantly higher than the 5% threshold set by the World Health Organization. – June 26, 2021.