PETALING JAYA: Law experts differ on the refusal of some states to implement the conditional movement control order (conditional MCO) based on various interpretations of Article 81 of the Federal Constitution.
While lawyer Derek Fernandez said the states have a constitutional obligation to follow what has been gazetted as law by the Federal Government (if the states have yet to have their own laws on Covid-19), former judge Datuk Seri Gopal Sri Ram said it is not so simple.
State governments, said Derek, cannot revert to MCO phase 4 (MCO4) when the conditional MCO has already been gazetted.
“As of today, the only legal power stopping businesses from operating as usual is the Prevention and Control of Infectious Diseases Act 1988 (Act 342).
“Under Act 342, only the Health Ministry can issue MCOs, after consultations and advice by the National Security Council (NSC),” said Fernandez, who added that NSC has a task force in each state to coordinate enforcement of its orders and policy.
“Under Act 342, the Health Ministry has issued the conditional MCO, which is phase 5. This conditional MCO has superseded MCO4,” said Fernandez.
Under the conditional MCO, NSC allows most industries to operate from May 4, guided by strict SOPs.
On May 4, Senior Minister in charge of the economic cluster, Datuk Seri Azmin Ali, urged state governments to comply with the conditional MCO as going against it will open them up to possible lawsuits for not allowing industries to operate.
As of last Sunday, nine states are not following or fully complying with the conditional MCO.
Kedah, Sabah, Pahang, Penang, Kelantan and Sarawak have decided not to follow the move, while Selangor, Perak and Negri Sembilan is limiting the number of businesses allowed to resume operations and restrict dine-ins at restaurants, as well as sports and recreational activities.
Fernandez said the state government and local authorities’ roles under Act 342 is similar to that of the police and other designated agencies to “assist compliance” with the Health Ministry.
He explained that while the state government and local authorities have the right to say they are unable to assist in ensuring compliance with the conditional MCO due to lack of resources, they cannot legally say that they are going to enforce MCO4 using Act 342 against businesses and the public because MCO4 has been superseded by conditional MCO.
He said only Sarawak had passed state laws to specifically deal with Covid-19.
“This has not been done in any state other than Sarawak, namely the Protection of Public Health Ordinance 1999.
“As for other states, to date, none of these powers have been used on existing businesses or public activities in relation to Covid-19 as all states had initially followed the lead of the Federal Government under Act 342,” said Fernandez.
However, he cautioned that state laws cannot be used when they are clearly in conflict with Federal Laws or impede or prejudice the exercise of Federal Government authority in the management and regulation of Covid-19 as provided for under Article 75 and 81 of the Federal Constitution.
“So, there is some leeway for states to tighten restrictions in ensuring no direct conflict or impeding or prejudice with the Federal Government laws,” said Fernandez, who is also a Petaling Jaya City Council councillor.
On his part, Sri Ram said while there needs to be compliance by states towards the Federal Government, Article 81 is not an “open and shut case”.
“The question here is, are the state executive heads impeding or prejudiced towards the Federal law in their refusal to follow what has been ordered by the Federal Government?
“Article 81 is subject to the right of the state without the state impeding or being prejudiced on Federal laws.
‘For example, if they say that they have difficulty in imposing the conditional MCO – is that impeding or prejudicial to what the Federal Government has ordered?” said Sri Ram.
He pointed out that as state borders are porous, non-compliance with Conditional MCO may be seen to impede or prejudicial when neighbouring states comply.
While lawyer Derek Fernandez said the states have a constitutional obligation to follow what has been gazetted as law by the Federal Government (if the states have yet to have their own laws on Covid-19), former judge Datuk Seri Gopal Sri Ram said it is not so simple.
State governments, said Derek, cannot revert to MCO phase 4 (MCO4) when the conditional MCO has already been gazetted.
“As of today, the only legal power stopping businesses from operating as usual is the Prevention and Control of Infectious Diseases Act 1988 (Act 342).
“Under Act 342, only the Health Ministry can issue MCOs, after consultations and advice by the National Security Council (NSC),” said Fernandez, who added that NSC has a task force in each state to coordinate enforcement of its orders and policy.
“Under Act 342, the Health Ministry has issued the conditional MCO, which is phase 5. This conditional MCO has superseded MCO4,” said Fernandez.
Under the conditional MCO, NSC allows most industries to operate from May 4, guided by strict SOPs.
On May 4, Senior Minister in charge of the economic cluster, Datuk Seri Azmin Ali, urged state governments to comply with the conditional MCO as going against it will open them up to possible lawsuits for not allowing industries to operate.
As of last Sunday, nine states are not following or fully complying with the conditional MCO.
Kedah, Sabah, Pahang, Penang, Kelantan and Sarawak have decided not to follow the move, while Selangor, Perak and Negri Sembilan is limiting the number of businesses allowed to resume operations and restrict dine-ins at restaurants, as well as sports and recreational activities.
Fernandez said the state government and local authorities’ roles under Act 342 is similar to that of the police and other designated agencies to “assist compliance” with the Health Ministry.
He explained that while the state government and local authorities have the right to say they are unable to assist in ensuring compliance with the conditional MCO due to lack of resources, they cannot legally say that they are going to enforce MCO4 using Act 342 against businesses and the public because MCO4 has been superseded by conditional MCO.
He said only Sarawak had passed state laws to specifically deal with Covid-19.
“This has not been done in any state other than Sarawak, namely the Protection of Public Health Ordinance 1999.
“As for other states, to date, none of these powers have been used on existing businesses or public activities in relation to Covid-19 as all states had initially followed the lead of the Federal Government under Act 342,” said Fernandez.
However, he cautioned that state laws cannot be used when they are clearly in conflict with Federal Laws or impede or prejudice the exercise of Federal Government authority in the management and regulation of Covid-19 as provided for under Article 75 and 81 of the Federal Constitution.
“So, there is some leeway for states to tighten restrictions in ensuring no direct conflict or impeding or prejudice with the Federal Government laws,” said Fernandez, who is also a Petaling Jaya City Council councillor.
On his part, Sri Ram said while there needs to be compliance by states towards the Federal Government, Article 81 is not an “open and shut case”.
“The question here is, are the state executive heads impeding or prejudiced towards the Federal law in their refusal to follow what has been ordered by the Federal Government?
“Article 81 is subject to the right of the state without the state impeding or being prejudiced on Federal laws.
‘For example, if they say that they have difficulty in imposing the conditional MCO – is that impeding or prejudicial to what the Federal Government has ordered?” said Sri Ram.
He pointed out that as state borders are porous, non-compliance with Conditional MCO may be seen to impede or prejudicial when neighbouring states comply.
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