State vs federal impasse over conditional MCO

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From Focus Malaysia

THE federal government has relaxed the Movement Control Order, essentially to allow businesses to operate, subject to certain conditions. This was done through fresh regulations (No 5) under the Prevention and Control of Infectious Diseases Act 1988. The prohibition for the conduct of certain business activities was removed.

Several state governments have issued their own orders. The effect is to prohibit certain activities that have been allowed under the federal regulations (No 5).

This brings into sharp focus the issue of whether the state governments can issue such orders.

Under the Federal Constitution (Article 81), state governments are obliged to make sure that states comply with federal law, and that their action does “not impede or prejudice” the federal government’s authority.

In short, they must comply with regulations as these are part of federal law, or it will be a violation of the state’s constitutional obligation.

So, any abridgement of the federal law’s reach, or orders that are inconsistent with it, will constitute as non-compliance.

Take this example: Federal law now allows certain businesses to operate – law firms can open their offices, and restaurants can serve customers. All are no doubt subject to detailed operating procedures.

A state government says this cannot be done, or that the restaurants can open only for limited activities such as work preparatory to the opening. It also imposes stricter rules that run contrary to the federal law’s relaxation. This clearly runs counter to the federal regulations.

Some have argued that local authorities are empowered under the Local Government Act 1976 to regulate business premises.

First, the health-related provisions of the regulations under the Local Government Act are limited to requiring the cleansing of insanitary premises, clearing of vermin (such as rat and mice) and the closing and demolition of insanitary dwellings to guard against disease.

Specific procedures are prescribed for that. In short, they do not extend to matters now the subject of the federal regulations on opening of business premises under controlled conditions arising from infectious disease. This is unsurprisingly so, as the pandemic was not foreseen.

Secondly, where there is a law dealing with a specific matter, it supersedes any other law dealing more generally with a related health matter. It is accepted by our courts that when an act enacts something in general terms and afterwards another act on a particular subject introduces in express terms special restrictions on that subject, “then the rule of construction demands that the provisions in the subsequent particular legislation should prevail and the provisions of the earlier legislation deemed curtailed or restricted to the extent of its inconsistency with the later legislation” ((2004) MTD Intraperdana Bhd, High Court decision). In short, the general law must yield to the specific law.

Some have said that the federal government should have consulted with the state governments before issuing the federal relaxation regulations. Perhaps. This could have avoided the impasse between federal and state governments, although it is contended that the matter was discussed by the National Security Council, which comprises state chief ministers.

But that is a matter of prudence and consultative comity between the federal and state governments – perhaps essential in a situation harking back to the February installation without elections of a new government.

A leading Umno luminary just issued a shot across the bow: that the Perikatan Nasional Cabinet must adhere to a “new normal” in the relationship between state and federal governments. “The era of the federal government having the final say is over,” he warned.

Political manoeuvring, no doubt. But it does not alter the primacy of the Federal Constitution, and the constitutional obligation of states to adhere to federal law. – May 5, 2020

Gurdial Singh Nijar, a former law professor, is the President of HAKAM and a practicing lawyer.