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Malaysia CMCO now federal law, states have no choice but to comply, say legal experts

Predeep Nambiar Free Malaysia Today Mon, May 4, 2020

The conditional movement control order went into effect today.

GEORGE TOWN: State governments have no choice but to accept the conditional movement control order (CMCO) which came into effect today as it is federal law, legal experts said.

They said that while the state government had a shared responsibility in matters of public health and in the prevention of diseases under the Federal Constitution, there was no way they could not implement the CMCO.

Kedah, Penang, Selangor, Pahang, Kelantan, Negeri Sembilan, Sabah and Sarawak had reportedly refused to go ahead with the CMCO, with most deciding to stick with the lockdown until May 12, when the extended MCO ends.

Constitutional lawyers say the only powers the states have in this matter are through enforcement by the local councils, by cracking the whip on businesses who flout public health and licensing rules, which are under the control of the state authorities.

“Since local businesses are licensed by the local authority, they are subject to conditions that can be imposed by the local authority,” said lawyer Andrew Khoo, who is also the Bar Council constitutional law committee co-chairman.

“If the local authority instructs local businesses to follow stricter regulations, my view is that the local businesses have to obey.

“But the problem is that law enforcement is under the federal government. So, if the businesses don’t comply with the local authority, there will be no police to take any action.

“Only the local authority can take action, for example, by not renewing their business licences the next time.”

Khoo said since this was an area of concurrent jurisdiction, the federal government should have consulted with the state governments on the introduction of the CMCO.

“If they did not, this is a mistake on the part of the federal government since they are not complying with the provisions of the constitution,” he said.

Restaurant workers unload goods in preparation for the lifting of restrictions under the CMCO in Kuala Lumpur this morning.

Former law professor Gurdial Singh Nijar pointed out that state governments were obliged to follow federal law as per Article 81 of the constitution.

“Once there is an order to relax the MCO under the federal gazette, that is federal law and states have no choice but to follow,” he said.

Lawyer Lim Wei Jiet said the issue was not so much about state governments not agreeing to follow federal law, but states wanting to impose more restrictions of movement.

“For example, Selangor and Penang have imposed additional restrictions on dining in at restaurants when the federal government has not.

“This arguably does not ‘impede’ or ‘prejudice’ the federal government’s powers (under Article 81) but is an exercise well within the state authorities’s powers,” he said.

Article 81 lays out the obligations of states to ensure compliance with any federal law applicable to them and not to impede or prejudice the exercise of the executive authority of the federal government.

Prime Minister Muhyiddin Yassin, when announcing the CMCO on Friday, said certain economic and social activities would be allowed except for mass gatherings which would expose the public to Covid-19 infections.

He said the MCO which had been in place since March 18 had seen the country incur RM63 billion in economic losses.

Muhyiddin said if the partial lockdown continued for another month, losses would touch nearly RM100 billion.

The CMCO, gazetted today and signed by the health minister, repeals the earlier stricter version of the MCO.


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