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Welcome to UM Consti Team's law review. In our second episode, we will discuss about the ambit of people’s movement amidst this pandemic, and further discuss about freedom of movements and its limitations. We are excited to share our ideas and hopefully, inspire you through our law review! Here we go!
On 11th March 2020, the World Health Organisation (WHO) declared the rapidly spreading Coronavirus outbreak (COVID-19) as a pandemic.[i] As COVID-19 still rages on globally, devouring lives and battering the economy, governments and organisations are scrambling to manage and control this virus from spreading further.
Malaysia being one of the affected countries, on 16th March, had officially implemented the movement control order (MCO) under the provisions enumerated in the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967.[ii] Among the restrictions are prohibitions of mass assemblies or gatherings such as sporting events and mass religious activities, the prohibition of Malaysians from traveling abroad and the closure of educational institutions nationwide. However, the ban is going to be partially lifted on 10th June 2020.
The rights to freedom of movement is enshrined in Article 9 of the Malaysian Federal Constitution, every citizen has the rights to move freely and reside in any part of the country subject to laws relating to security, public order, public health, and the punishment of offenders. The question that arises is, does the restrictions of movement imposed under MCO jeopardize our rights to freedom of movement? Let’s have a look on the limitations.
LIMITATIONS OF FREEDOM OF MOVEMENT
The implementation of MCO is empowered under Police Act 1967[iii] in consideration of Malaysia's security interest. By virtue of Section 31(4), government can make an order for Malaysians to stay at home for a period may be extended beyond fourteen days where the situation renders compulsory. RM1000 fine or maximum 6 months imprisonment or both will be incorporated on those who disobeyed the order as a penalty[iv] in endeavour to flatten the curve. MCO essentially shuts down most of the businesses and prohibits people from leaving their houses. Interstate travels are currently limited to those with police permission for urgent matters, and that the decision to allow those separated from their families to travel to other states was made on humanitarian grounds.
Article 9(2)provides lawful restrictions on freedom of movement by Parliament for matters concerning public order, public health and punishment of offenders. This shed light on the constitutionality of the enforcement of MCO, as the issue at hand is a matter of public health. It is therefore apparent that MCO does not impinge on our personal liberties, as freedom of movement has to be balanced with the needs of national security and public policy. As such, the balance between an individual’s rights to freedom of movement and the public’s rights to be free from harm must tilt towards the latter.
FEDERALISM AMID COVID-19 OUTBREAK
Another question that arises is, what discretionary power is vested upon state governments in regard to public health matters, for instance, Covid-19.
The relations between the Federation and the states are provided under Part VI of the Federal Constitution. The areas in which the states and the Federation are given the power to enact laws are provided in the Ninth Schedule. The Federal List provides for matters that Parliament can legislate, while the State List provides for matters that State Legislative Assemblies can legislate. The Concurrent List provides for matters which either of them may legislate.[v]In other words, the Federation and the states may not encroach on each other's legislative power.
On 4th May 2020, the Senior Minister for Security and Defence, Dato' Sri Ismail Sabri Yaakob, announced that Malaysia is proceeding to the 5thphase of MCO. However, some states have opted not to follow the newly gazetted edition of MCO strictly, and a few from those states even preferred to resume with MCO 4.[vi] This is unlawful as MCO 4 has now been revoked by MCO 5.[vii] Prevention and Control of Infectious Diseases Act 1988 (CIDA)[viii] governing the MCO is a federal law, and section 1(1) provides that it shall apply throughout Malaysia. Hence, state governments are bound to adhere to it, as federal laws supersede conflicting state laws.[ix] Non-compliance with federal laws is a violation of the constitutional obligation of states under Art 81 of the Federal Constitution.
However, state governments are not strictly been left with no alternatives. This is because public health falls under Item 7 of the Concurrent List, which is under the jurisdiction of both the federal government and the state governments.[x] It is noteworthy that the Concurrent List is only an enabling provision, state governments must enact state laws to give effect to Item 7 to their respective states to deal specifically with the control of COVID-19 for their states.[xi] Section 72 of Local Government Act 1976 confers legal power to state governments to regulate and manage health sanitisation, and control of the diseases. To date, none of these powers have been used on existing businesses or public activities in relation to Covid-19, as all states had initially followed the lead of the Federal Government under CIDA.[xii] As of now, the only available state law is Sarawak's Protection of Public Health Ordinance, 1999.[xiii] Even so, the said ordinance is subject to Act 342, such powers can only be exercised so as not to conflict with federal laws or impede or prejudice the exercise of the federal government in the regulation and management of Covid-19.[xiv] This is to ensure conformity to Article 75 of the Federal Constitution, which guarantees federal law's higher precedence over state law.
In a nutshell, state governments must implement MCO 5 in the absence of any state enactments on public health. The enforcement of a centralised set of laws allows the government to regulate and control COVID-19 more effectively.
CONCLUSION
Though the local health cause has recorded a remarkable recovery rate, the transmission potential and severity of COVID-19 still challenge people to reflect anew on our vulnerabilities. It is by no means an easy feat for the government to win this battle alone, the cooperation from the people need to be pooled to strengthen the prevention and control of the virus. Cooperation and solidarity are the only and a sure way to defeat this grave challenge. Be responsible, practice social distancing and stay safe. We shall win this battle.
REFERENCES
[i]WHO announces COVID-19 outbreak a pandemic. (2020, March 12). Retrieved from http://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/3/who-announces-covid-19-outbreak-a-pandemic
[ii]Tang, A. (2020, March 16). Malaysia announces movement control order after spike in Covid-19 cases (updated). Retrieved from https://www.thestar.com.my/news/nation/2020/03/16/malaysia-announces-restricted-movement-measure-after-spike-in-covid-19-cases
[iii]Act 344
[iv]Prevention and Control of Infectious Diseases (Measures Within The Infected Local Areas) Regulations 2020
[v]Relationship Between The Federal And The State Governments In Times Of Emergency And Other Related Matters Thereto – A General Perspective [2005] 2 MLJ lxxxii
[vi]https://www.freemalaysiatoday.com/category/opinion/2020/05/05/why-states-have-no-power-to-modify-putrajayas-mco/
[vii]s.13 of Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) (No. 5) Regulations 2020 P.U. (A) 136/2020
[viii]Act 342
[ix]Article 75 of Federal Constitution
[x]Federal Constitution, Ninth Schedule
[xi]https://www.freemalaysiatoday.com/category/opinion/2020/05/05/why-states-have-no-power-to-modify-putrajayas-mco/
[xii]https://www.freemalaysiatoday.com/category/opinion/2020/05/05/why-states-have-no-power-to-modify-putrajayas-mco/
[xiii]https://www.malaysiakini.com/letters/524125
[xiv]Section 15 of Protection of Public Health Ordinance 1999
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