MAY 7 — There is a lot of debate on whether the States may choose to ignore the implementation of the condition movement control Order (CMCO) and continue to doggedly cling to the MCO and disallow business from operating.
This debate misses the point. It showed that States lacked understanding, to my mind of the first principles of Constitutional law: That the federal law takes precedence over state law.
The Prevention and Control of the Infectious disease Act 1988 (Act 342) is a federal law that was passed in August 1988, which was later amended on the 1st of December 2016.
Article 75 of the Federal Constitution provides that if any State Law is inconsistent with Federal law, the Federal law shall prevail. It also provides that the state law, to the extent of the inconsistency, be void.
The Federal Government has made this law as per Article 74 of the Federal Constitution. As per Article 74, the “Parliament may make laws concerning any of the matters mentioned in the Federal List or the Concurrent List without prejudice to any power to make laws conferred on it by any other Article, which is the First and Third List set out in the Ninth Schedule.”
Item 14 of the Ninth Schedule, which is the First List (Federal List) states that “Medicine and health including sanitation in the federal capital, and including (a) Hospitals, clinics, and dispensaries; medical profession; maternity and child welfare; lepers and leper institutions; (b) Lunacy and mental deficiency, including places for reception and treatment; (c) Poisons and dangerous drugs, and (d) Intoxicating drugs and liquors; manufacture and sale of drugs.” The sub-list therein says including, making it not restricted, thus involving all health-related issues.
The Third List of the Ninth Schedule, which is the Concurrent List allows both Parliament and State to make laws for the same matter. This being said, the states have not shown that the respective states have enacted laws in relation to item 7 of this list which explains on “Public health, sanitation (excluding sanitation in the federal capital) and the prevention of disease.” Since there is a federal law that is in place, the States should adhere to the Federal Law.
Article 81 of the Federal Constitution states that the executive authority of every State shall ensure compliance with any federal law applying to that State and as not impede or prejudice the exercise of the executive authority of the Federation.
The provisions in the Federal Constitution are to ensure certainty, uniformity and predictability. Actions can be taken against States for non-compliance with the Federal law. Political differences should be never be a consideration on issue of compliance with law.
* Datuk Baljit Singh Sidhu is a senior partner at Shukor Baljit and Partners, and the author of the Criminal Litigation Process (3rd Edition).
**This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
