KUALA LUMPUR, Oct 4 — Despite the expiry of the nationwide Emergency on August 1, Malaysians remained uncertain for the past two months if they would still be punished under the laws that were enacted during the seven-month duration.
One of the heaviest penalties that targeted their thinning wallets was the fine up to RM10,000 for breaches of government containment measures designed to curb the spread of Covid-19.
While the federal government has finally confirmed that the Emergency did end on August 1, there are still pivotal questions that remain unanswered.
Would this mean that the Emergency Ordinances (EOs) — including the fines of up to RM10,000 (individuals) and up to RM50,000 (companies) for Covid-19 SOP breaches — were no longer enforceable?
What about the other EOs — which had given the government temporary new powers, among other things — do they continue to have legal effect, and for how long?
Before we dive into them, here’s a quick recap of what Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar said in his parliamentary reply last Thursday.
The February 2022 deadline
Wan Junaidi said the EOs are enforceable until they are revoked, annulled or ceased in effect according to three existing legal positions followed:
- Revoked by the Yang di-Pertuan Agong under Article 150(3) of the Federal Constitution while the Emergency Proclamation is still in force;
- Annulled through a resolution passed by both Houses of Parliament under the same Article 150(3); or
- Cease to be in effect six months after the Emergency expires according to Article 150(7) of the Federal Constitution.
Wan Junaidi said the Emergency ended without the Agong exercising his constitutional powers to revoke EOs and citing a statement issued by then prime minister Tan Sri Muhyiddin Yassin on August 3 that the process for the Agong’s revocation of the EOs as advised by the Cabinet on July 23 could not be completed.
However, Wan Junaidi noted that some EOs — whose provisions explicitly state “for so long as the Emergency is in force” — are only enforceable throughout the state of Emergency (January 11 to August 1).
In other words, parts of the EOs that had the phrase “for as long as the Emergency is in force” would no longer be applicable now, as the Emergency has ended.
Now that we are clear on how to determine their status and legal effect, let’s look at the seven EOs introduced in 2021 (six plus an amendment) to see which are still currently enforced until February 2022 (or until annulled by Parliament).
On the maximum RM10,000 fine for individuals for SOP violations
If you’re looking for a short answer, Yes it's still enforceable.
Findings: A quick glance of the Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021 on the federal government gazette found no provisions within that explicitly state “for so long as the Emergency is in force”.
In other words, you can still be issued compound notices for RM10,000 to individual standard operating procedure (SOP) violations up till February 2, 2022 since the related EO and its provisions have yet to be annulled by Parliament.
This would also apply the same to fines of up to RM50,000 (companies) for Covid-19 SOP breaches as authorities such as the police can continue to use the powers listed under the aforementioned EO for now.
On the criminalising of misinformation about Covid-19 or the Emergency
Short answer: Yes it's still enforceable.
Findings: A quick glance of the Emergency (Essential Powers) (No. 2) Ordinance 2021 on the federal government gazette found no provisions within that explicitly state “for so long as the Emergency is in force”.
In other words, the EO provides that anyone convicted of an offence in the creation or publishing fake news on Covid-19 or the Emergency proclamation is liable to face a jail term of up to three years or fine up to RM100,000, or both.
On the drawing of funds from the National Trust Fund (KWAN) by the federal government to purchase vaccine
Short answer: Yes it's still enforceable.
Findings: A quick glance of the Emergency (National Trust Fund) (Amendment) Ordinance 2021 on the federal government gazette found no provisions within that explicitly state “for so long as the Emergency is in force”.
In other words, this meant that the government will still be allowed to utilise funds from KWAN — until the automatic expiry of the EO in February 2022 or annulment by Parliament — for the procurement of vaccines and any expenditure incurred in relation to the vaccines for an epidemic of any infectious disease as specified under the Prevention and Control of Infectious Diseases Act 1988 [Act 342].
On providing compulsory proper housing facilities to curb Covid-19 infectivity among workers
Short answer: Yes it's still enforceable.
Findings: A quick glance of the Emergency (Employees’ Minimum Standards of Housing, Accommodations and Amenities) (Amendment) Ordinance 2021 on the federal government gazette found no provisions within that explicitly state “for so long as the Emergency is in force”.
In other words, this meant that employers or owners of accommodation who failed to comply with the order can still be fined up to RM200,000 or be jailed up to three years or both under the EO.
On qualifying for community service for those currently incarcerated
Short answer: Yes it's still enforceable.
Findings: A quick glance of the Emergency (Offenders Compulsory Attendance) (Amendment) Ordinance 2021 on the federal government gazette found no provisions within that explicitly state “for so long as the Emergency is in force”.
In other words, this meant the court may make a compulsory attendance order requiring a person to attend daily at a centre where they will undertake compulsory work for a period not exceeding 12 months and for such number of hours each day not exceeding four as may be specified in such an order.
Under the EO, those facing up to three years' imprisonment will be qualified where previously those facing up to three months' imprisonment were only eligible.
On approving additional spending of the federal government’s funds beyond the initial Budget without Parliament’s approval
Short answer: No it's no longer enforceable.
Findings: A quick glance of the Emergency (Essential Powers) (Amendment) Ordinance 2021 on the federal government gazette found two provisions that explicitly state “for so long as the Emergency is in force”.
In other words, the EO ceased to be in effect following the expiration of the Emergency on August 1.
This means that the federal government through the Finance Ministry will not be able to approve additional spending beyond the initial Budget without going through the usual route of seeking Parliament’s approval.
Mentris besar and chief ministers of states in Malaysia will similarly not be able to approve additional spending in state government funds beyond the initial budget without having to get approval of state legislative assemblies.
On new laws introduced during the Emergency concerning elections of Parliament and state legislative assemblies, executive power, Yang di-Pertuan Agong’s authority
Short answer: No it's no longer enforceable.
Findings: A quick glance of the Emergency (Essential Powers) Ordinance 2021 on the federal government gazette found 10 provisions that explicitly state “for so long as the Emergency is in force”.
In other words, this meant that several new laws introduced by the EO ceased to be in effect following the Emergency’s expiry on August 1.
Amongst the laws affected include the power to take temporary possession of land, building or movable property; demand for use of resources; compensation for properties seized; additional powers of armed forces; directions for treatment, immunisation, isolation, observation or surveillance; power to exempt all ceased to be in effect.
The nullification of the requirement to fill vacancies in both Parliament and state legislative assemblies within 60 days under the Federal Constitution (by-elections) has also been restored.
Lastly, the summoning, proroguing and dissolution of both Houses of Parliament and state legislative assemblies — previously nullified throughout the Emergency under the EO unless summoned by His Majesty — has also been restored with full effect.
