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MCO: Are states compelled to follow?

06 May 2020 / 09:12 H.

PETALING JAYA: Are states obliged to adhere to federal directives on policy matters, such as the Conditional Movement Control Order (CMCO)?

There seems to be a very thin, blur line with regards to this, with as many as nine states not complying fully with the government’s decision to resume the economy beginning May 4.

To compound matters, even cabinet ministers seemed to be on a different page.

Senior Minister Datuk Seri Ismail Sabri Yaakob had, on Sunday, said it was up to the respective states to decide whether to adopt the CMCO in full, claiming the federal directive merely serves as a general guideline.

However, Datuk Seri Mohamed Azmin Ali on Monday said the decision not to implement CMCO was against the law and contrary to federal government policy, and that industry players could sue states for this.

This sentiment was shared by constitutional lawyer Prof Datuk Dr Gurdial Singh Nijar, who said it was the constitutional obligation of states to adhere to federal law, based on Article 81 of the Federal Constitution.

According to the article, state governments are obliged to make sure they comply with any federal law, and that their action does not impede or prejudice the federal government’s authority.

“For example, the federal law now allows certain businesses to operate. A state government saying this cannot be done, limiting operations, or imposing stricter rules in contrary clearly runs counter to the federal regulations,” he told theSun.

Gurdial also questioned arguments that local authorities are empowered under the Local Government Act 1976 to regulate business premises.

“First, health-related provisions under the Act are limited to requiring the cleansing of insanitary premises, clearing of vermin and the closing and demolition of insanitary dwellings to guard against disease.

“Secondly, where there is a law dealing with a specific matter, then it supersedes any other law dealing with more generally-related matter. It is accepted by our courts,” he said.

However, Parliamentary Select Committee on Federal-State Relations chairman Hassan Abdul Karim said under the Concurrent List of the Ninth Schedule of the Federal Constitution, federal and state governments have joint powers on matters relating to public health and diseases.

He also claimed that the Concurrent List supersedes the Prevention and Control of Infectious Diseases Act (Act 342), in which the CMCO is implemented under.

“The federal government should not rely solely on Act 342 to force states to adhere to the CMCO. I urge them to respect the powers of the state governments, considering Malaysia practises federalism,” he said in a statement.

Universiti Teknologi Malaysia (UTM) Law and Constitution research fellow, Dr Muhammad Fathi Yusof said although health policies fall under the federal jurisdiction, states have a say in the implementation part.

For instance, he said states could use the Local Government Act to order businesses to remain closed, although they have no enforcing power like the police.

“But personally, I think having a uniformed law and regulations is much better, considering we are a small nation, compared to the likes of the US. What’s important, though, is communication and cooperation,” he told theSun.

Meanwhile, political analyst Prof Datuk Dr Shamsul Amri Baharuddin said he does not see the current disagreement between the federal and states leading a full-on political crisis, despite being almost unprecedented.

“Malaysia’s strength lies on ‘bargaining, negotiation and mediation’. This is exactly why there were no clashes during the change of government in 2018.

“Similarly for the current situation, it will certainly be resolved very soon. There will consultations, and there will be compromises. For me, the situation is under control,” he said.

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