MAY 5 — I refer to Gurdial Singh Nijar's “State vs Federal impasse over lockdown relaxation order.”
The learned writer rightly notes that the issuance of orders by several State governments following the conditional movement control order (CMCO) brings into sharp focus the issue of whether the State governments can issue such orders.
The Prevention and Control of Infectious Diseases Act 1988 (Act 342) is a federal law on prevention of infectious diseases. It concerns public health.
Matters of public health and prevention of diseases, however, fall under the Concurrent List, Ninth Schedule of the Federal Constitution. This means that the Federal Parliament and the State Legislature may make law on both matters.
If there are both federal law and state law on the same matter, which one prevails? Article 75 of the Federal Constitution provides the short answer: If any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.
Section 1(1) of Act 342 clearly provides that it shall apply throughout Malaysia. The control movement orders (CMOs) are all regulated under Act 342 – section 11(2) – and are therefore federal laws and apply throughout Malaysia.
Act 342 also repeals state laws that were in force then [section 33] and the Second Schedule lists out the laws. There are no state laws on public health and prevention of diseases except Sabah’s Public Health Ordinance 1960 which was not repealed by Act 342 and remains in force.
No states have since enacted laws on the matters except for Sarawak. The Protection of Public Health Ordinance, 1999 (Swk Cap 30) is the state law to consolidate the law relating to public health in Sarawak and to make better provisions in relation thereto.
Even so, the Ordinance makes several references to Act 342. For example, section 15 provides that where any area in the state has been declared an infected area under section 11(1) of Act 342, the minister having responsibilities for public health may by Order (a) regulate the movement of persons and animals into or from the infected area; and (b) prescribe such measures or actions to be taken by the Sarawak director of health, public health officer or any officer of the Government or any person within or residing in the infected area to prevent the spread of the infectious disease or necessary for its eradication.
There is, however, an important qualification. The Order made by the Sarawak minister must not be inconsistent with Act 342 or any regulations made thereunder. In today’s terms, it means the conditional movement control order (CMCO) which is in force since May 4.
This is consistent with Article 75 of the Federal Constitution.
So, the CMCO applies throughout Malaysia. If any state law is inconsistent with the CMCO, the latter prevails.
But of course, local government is a state matter. So are markets and fairs, and licensing of theatres, cinemas and places of public amusement, among others.
The CMCO includes the easing of business which involves local governments. The states should have been consulted. Gurdial contends that “the matter was discussed by the National Security Council (NSC), which comprises state chief ministers.”
But no, the NSC does not comprise the state chief ministers. Section 6 of the NSC Act 2016 (Act 776), on membership of NSC, does not include the state chief ministers. Section 10 though allows the NSC to invite any non-member to attend its meeting “to advise the Council on any matter under discussion.”
So the menteri besars and ketua menteris could and should have been invited. That’s what federalism is all about.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
