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KUALA LUMPUR: There appears to be some confusion regarding the Conditional Movement Control Order (CMCO) as some state governments have decided not to comply with the relaxation of the movement control order issued under the Infectious Disease Control and Prevention Act of 1988 .
The CMCO, which went into effect on Monday, was not well received by various state governments when they announced different plans for the relaxation of the Movement Control Order (MCO), resulting in confusion in the business sector of the respective states and the public.
Initially, it was reported that Penang, Selangor, Kedah, Pahang, Kelantan, Negeri Sembilan, Sabah and Sarawak refused to comply with the CMCO, and most decided to stay with MCO4, which will end on May 12.
However, Kedah and Kelantan have agreed to implement CMCO with immediate effect in accordance with the decision made at the federal government level.
Can states choose not to comply with the federal government’s CMCO and issue their own orders to suit their state priorities?
According to various legal experts, state governments cannot refuse to adhere to the start of the CMCO or phase five of the MCO published by the federal government, as MCO4 is now null and void.
Prominent attorney Datuk N. Sivananthan is of the opinion that state governments cannot refuse to comply with the CMCO, which has been published to run May 4-12 as it supersedes the provisions of MCO4.
He said state governments have no legal authority to refuse to comply with the CMCO according to instructions from the federal government.
“Any attempt to prevent citizens from following the CMCO will be ultraviolent to the law and citizens who suffer losses as a result will be able to sue for damages,” he said.
On the same note, attorney Amer Hamzah Arshad said that under the Infectious Disease Control and Prevention Act of 1988 (which is a federal law), the Federal Government through the minister in charge, can establish certain regulations.
He said that CMCO regulation now allows certain sectors to operate.
“At the same time, one should appreciate that state governments still have something to say on issues related to public health and disease prevention. Pursuant to the Local Government Act of 1976, state governments through local councils have certain powers to regulate and enforce quarantine as appropriate.
“As an example, we have seen local councils taking their own initiatives to regulate and enforce laws to prevent the spread of dengue,” he said.
However, when it comes to business operations, Amer Hamzah emphasized that state governments, through local councils, have the authority to issue business licenses and permits, and in certain cases also to revoke them.
The attorney 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 establishes that the executive decision of the Federal Government prevails,” he said.
The real question to ask yourself is whether state governments are, in fact, going against the CMCO, or is it simply a case where state governments are trying to give effect to the CMCO by imposing additional conditions of safety and precaution.
In the case of the latter, as long as it is not against the spirit of the CMCO, then it is valid that the state governments do it, “said Amer Hamzah.
Ideally, there should have been in-depth discussions between the federal and state governments beforehand as both sides have a say in public health and disease prevention issues.
“This could have avoided confusion among the public,” he said.
Meanwhile, attorney Lim Wei Jiet opined that state governments considered they would want to modify the CMCO by implementing additional restrictions on the movement.
“In any case, my views on the constitutionality of the actions of the states are the following: we must first recognize that” public health “and” disease prevention “are included in the Concurrent List of our Constitution; this means that both the federal government and state governments have jurisdiction over such matters.
“Without a doubt, according to Article 81 of the Federal Constitution, a state government or authority must not exercise its powers to” impede or harm “the exercise of its executive authority by the federal government.
“Application of Article 81 is straightforward in cases where the federal government imposes a restriction on a particular matter, but the state authority refuses to comply with it, obviously the federal government prevails in such a case,” he said.
However, he said it was different if the state government wants to impose certain or additional restrictions on matters that the federal government has not imposed.
“This is what has happened today. For example, Selangor and Penang, which has imposed additional restrictions on restaurant dining when the Federal Government has not.
It could be said that this does not “impede or harm” the powers of the Federal Government, but is an exercise well within the powers of the state authority, “he said. – Bernama
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