There must be a clear understanding that ‘public health’ and ‘prevention of diseases’ fall under the Concurrent List of the FC
by NUR HANANI AZMAN/ pic by RAZAK GHAZALI
THE government’s decision to implement the Conditional Movement Control Order (CMCO) from Monday has been receiving mixed reactions from state governments.
Kedah, Penang, Selangor, Pahang, Kelantan, Negri Sembilan, Sabah and Sarawak had refused to go ahead with the CMCO, with most deciding to stick with the MCO until May 12.
The National Human Rights Society secretary general Lim Wei Jiet said there must first be a clear understanding that “public health” and “prevention of diseases” fall under the Concurrent List of the Federal Constitution (FC), which means both the federal and state governments have jurisdiction on such matters.
“No doubt. Under Article 81, a state government should not exercise its powers to impede or prejudice the federal government’s exercise of its executive authority.
“The application of Article 81 is clear in cases where the federal government imposes a restriction on a particular matter, but if a state refuses to comply with it, then obviously the federal government prevails,” he told The Malaysian Reserve (TMR).
However, it is different if the state government wishes to impose additional restrictions on such matters.
“As with what is happening now, for example, Selangor and Penang have imposed additional restrictions on dine-in for restaurants.
“This arguably does not impede or prejudice the federal government’s powers, but is an exercise well within the state authority’s powers.
“My view is that, as long as they are not defying the restrictions imposed by the federal government and are merely imposing additional restrictions to suit their respective state, such actions are constitutional,” he said.
Senior Minister of International Trade and Industry Datuk Seri Mohamed Azmin Ali on Monday warned that state governments may be sued by industry players if they bar businesses from resuming operations.
“Their actions are not founded on lawful authority and are contrary to the federal government’s policy, all the more so in view of the fact that the federal government’s policy has already been made into law and enforceable throughout the country,” he said in a statement.
In response to this, PKR president Datuk Seri Anwar Ibrahim described Azmin’s style of administration and management as similar to that of US President Donald Trump.
The Port Dickson MP advised Azmin to have a proper discussion with the mentris besar and chief ministers (CMs).
Agreeing with Anwar, Sabah CM Datuk Seri Mohd Shafie Apdal said even Trump consulted his state governors, therefore, he hoped that the federal government will consult the respective state governments with their decisions first.
Mohd Shafie added that Sabah also will keep to the May 12 timeline to gradually open up economic sectors.
“For now, we will continue with the MCO in our efforts to curb the spread of Covid-19 in Sabah,” he told reporters yesterday.
Penang CM Chow Kon Yeow said the state government is prepared to be sued for protecting the lives of Penangites from the coronavirus.
“Penang has never objected to the CMCO, but the state will implement it in a gradual manner,” Chow said during his live press conference held via Facebook yesterday.
Senior Minister (Security Cluster) Datuk Seri Ismail Sabri Yaakob had affirmed that the CMCO has been gazetted, meaning that all regulations under the previous MCO are now null and void.
This means that all quarters nationwide are subject to the standard operating procedures (SOPs) as gazetted under the Prevention and Control of Infectious Diseases Act 1988 (Act 342), which is still in effect, he said.
Lawyer Wong Mun Hoe said what has been raised by the minister is practical.
He said private industry players will have ground to challenge the state governments since Act 342 is a gazetted law accompanied by the federal government’s policy.
“However, the state governments have an enforcement advantage through the local authorities with the good defence of public health.
“I do not think such specific conflict has ever been tested in court before,” he told TMR.