Can state govts choose to defy CMCO? Lawyers explain

A general view of Jalan Tunku Abdul Rahman during the conditional movement control order (CMCO) in Kuala Lumpur May 5, 2020. — Picture by Firdaus Latif
A general view of Jalan Tunku Abdul Rahman during the conditional movement control order (CMCO) in Kuala Lumpur May 5, 2020. — Picture by Firdaus Latif

KUALA LUMPUR, May 5 — It appears there is some confusion in relation to the conditional movement control order (CMCO) as some state governments have decided not to abide with the relaxation of the movement control order issued under the Prevention and Control of Infectious Diseases Act 1988. 

The CMCO, which took effect Monday, has not been received well by several state governments when they announced different plans on the relaxation of the movement control order (MCO), resulting in confusion in the business sector of respective states and the public.

It was initially reported that Penang, Selangor, Kedah, Pahang, Kelantan, Negeri Sembilan, Sabah and Sarawak refused to comply with the CMCO, with most deciding to stick with the MCO4 which will end on May 12.

However, Kedah and Kelantan have agreed today to implement CMCO with immediate effect in line with the decision made at the federal government level.

Can the states choose not to abide by the federal government’s CMCO and issue their own orders to suit with their state priorities?

According to several legal experts, the state governments cannot refuse to adhere with the commencement of the CMCO or phase five of the MCO gazetted by the federal government, as the MCO4 is now null and void.

Prominent lawyer, Datuk N. Sivananthan is of the view that state governments could not refuse to abide by the CMCO which has been gazetted to run from May 4 to May 12 as it supersedes the provisions of MCO4.

He said state governments have no lawful authority to refuse to comply with the CMCO as instructed by the federal government.

“Any attempt to prevent citizens from following the CMCO will be ultra vires the law and citizens who suffer losses as a result would be able to sue for damages,” he said.

On the same note, lawyer Amer Hamzah Arshad said under the Prevention and Control of Infectious Diseases Act 1988 (which is a Federal law), the Federal Government through the minister-in-charge, is allowed to make certain regulations.

He said the regulation of CMCO, now allows certain sectors to operate.

“At the same time, one must appreciate that the state governments still have a say on matters related to public health and prevention of diseases. Under the Local Government Act 1976, state governments through local councils, have certain powers to regulate and enforce quarantine as the case may be.

“As an example, we have seen local councils taking their own initiatives to regulate and enforce laws to prevent the spreading of dengue,” he said.

However, Amer Hamzah stressed when it comes to business operation, the state governments through local councils, have the authority to issue business licences and permits, and in certain instances also to revoke them.

The lawyer said the question now is whether there is a conflict between the federal and state governments.

“When there is a conflict between the federal and state governments, Article 81 of the Federal Constitution states that the Federal Government’s executive decision prevails,” he said.

The real question which has to be asked is whether the state governments are, in actual fact going against the CMCO, or is this merely a case where the state governments are trying to give effect to the CMCO by imposing additional safety and precautionary conditions.

In the case of the latter, as long as it is not against the spirit of the CMCO, then it is valid for the state governments to do so,” said Amer Hamzah

Ideally, there should have been comprehensive discussions between the federal and state governments beforehand as both sides have a say when it comes to matters of public health and prevention of diseases.

“This could have prevented the confusions among the public,” he said.

Meanwhile, lawyer Lim Wei Jiet opined that state governments have taken the view that they would want to modify the CMCO by implementing additional restrictions on movement.

“In any event, my views on the constitutionality of the states’ actions are as follows: We must first recognise that “public health” and “prevention of diseases” falls under the Concurrent List of our Constitution – this means that both the Federal and  State Governments have jurisdiction on such matters.

“No doubt, under Article 81 of the Federal Constitution, a State Government or authority should not exercise its powers so as to “impede or prejudice” the Federal Government’s exercise of its executive authority.

“The application of Article 81 is straightforward in cases where the Federal Government imposes a restriction for a particular matter, but the state authority refuses to comply with it – obviously the Federal Government prevails in such instance,” he said.

However, he said it was different if the state government wishes to impose certain or additional restrictions on matters which the Federal Government has not.

“This is what has happened today. For example, Selangor and Penang which has imposed additional restrictions on dining-in for restaurants when the Federal Government has not.

This arguably does not “impede or prejudice” the Federal Government’s powers, but is an exercise well within the state authority’s powers,” he said. — Bernama

Related Articles