“In pursuance of our duty to recommend ‘a strong central government’ with ‘a measure of autonomy’ to the States, we have made proposals in Chapter V designed to give the States a greater measure of autonomy in limited but important fields while retaining national control where the national interest as a whole requires it”
– Reid Commission Report, 1957
The Conditional MCO Commencing 4th May 2020
Credits: Borneo Post
On 1st May 2020, Prime Minister Muhyiddin Yassin announced that the MCO would be substantially lifted come 4th May 2020. The MCO will hence be superceded by a Conditional Movement Control Order (CMCO).
The Federal Government has since issued MCO Regulation No.5 (P.U. (A) 136) dated 3rd May 2020 (this has yet to be published in the AGC’s Gazette at the time of writing, which raises many legal complications beyond the scope of this article).
The National Security Council has also issued Standard Operating Procedures (SOP) for the CMCO (again, there is doubt on the legal effect of an NSC-issued SOP which is beyond the scope of this article).
The SOP among others allows restaurants to be opened and some recreational activities to be carried out under certain conditions.
Defiance of the 9 States
Credits: The Malay Mail
In a stunning development, as many as 9 states have said they will not be following or complying fully with the Federal Government’s ease of movement and resumption of businesses at 100% capacity under the CMCO.
Kedah, Sabah, Pahang, Penang, Kelantan and Sarawak have said they will not be adhering to the CMCO. Selangor, Perak and Negeri Sembilan said they would limit the number of businesses allowed to resume operations and restrict dine-ins at restaurants.
Interestingly, some of these defiant states are governed by Perikatan Nasional or its component parties (Pahang, Perak & Sarawak).
Is it unconstitutional for these States to not follow or fully comply with the Federal Government’s CMCO?
Our Federal System of Government
The starting point is the fact that Malaysia is a Federation of many States. There is hence a Federal Government, and multiple State Governments.
The Federal Government has jurisdiction over matters stipulated in the “Federal List” under the Ninth Schedule of the Federal Constitution – this includes foreign relations, military defence, etc.
The State Governments have jurisdiction over matters in the “State List” – this includes land matters, local government, etc.
There is also the “Concurrent List”, whereby both Federal and State Governments have jurisdiction over – this includes sports, housing, etc.
Powers Vested Under State Governments
Credits: Buletin Online
We must firstly recognise that “public health” and “prevention of diseases” falls under the Concurrent List – this means that both the Federal & State Governments have jurisdiction on such matters.
Further, “local government” falls under the State List – this means the State Government has exclusive jurisdiction on this matter.
Under the Local Government Act 1976, a local authority has the following powers and/or can enact by-laws to:
1) temporarily close any public place (open space, parking place, garden, recreation and pleasure ground or square, etc.) vested in it or under its control (Section 65);
2) permanently close or divert any public street (Section 67);
3) preserve public health and to prevent the outbreak and spread of diseases (Section 73(b));
4) regulate and enforce quarantine, the disinfection of persons, the disinfection of places and things, etc. (Section 73(b)(iii)); and
5) require the closing of schools or trade premises which are suspected of being or are likely to become sources of infection (Section 73(b)(v)).
The Deciding Factor: Interpretation of Article 81
Whenever there is a Federal-State conflict, Article 81 of the Constitution comes into the picture.
In gist, Article 81 provides a State Government’s executive authority shall be so exercised: (a) as to “ensure compliance” with any federal law applying to that State; and (b) as not to “impede or prejudice” the exercise of the Federal Government’s executive authority.
1st Scenario
The application of Article 81 is straightforward in cases where the Federal Government imposes a restriction for a particular matter but the State authority refuses to comply with it – obviously the Federal Government’s decision prevails.
For example, under the CMCO, one of the prohibited activity is “entertainment, leisure and recreational activities which may cause a crowd to gather”. If Selangor however permits marathons or concerts to proceed during the CMCO, obviously this in direct breach of the Federal Government’s CMCO and unconstitutional under Article 81.
2nd Scenario
But the situation is different when the State Government imposes certain or additional restrictions on matters which the Federal Government has not.
This is what has happened today. For example, despite the less-restrictive CMCO, Selangor has still not allowed people to attend public parks such as the Shah Alam Lake Gardens, Taman Jaya and Tasik Cempaka, as well as indoor recreational activities like swimming and gymnasiums.
In the 2nd Scenario, the States are arguably not exercising their powers to “impede or prejudice” the Federal Government’s powers. In my view, this is an exercise well within the State authority’s powers.
This interpretation strikes a balance between the need for deference to the Federal Government and residual autonomy on the States. A contrary interpretation would render illusory the power of States in a Federation.
This interpretation is also consistent with the views of Senior Minister in charge of Defence, Ismail Sabri Yaakob, on 3rd May 2020 as reported by Bernama:
Credits: The Sun Daily
“We have agreed that states can adjust the SOP we issued with the respective states and districts. But it must be based on the SOP issued by the federal government.
“For example, food shops can open until 10 pm. In small towns such as my constituency, Bera in Pahang, few people are out after 8 pm, more so during Ramadan. So opening until 10 pm serves no purpose.
“So it can be adapted according to the states but when we say up to 10 pm, shops should not stay open until 12 midnight. It must be within the range of the SOP we have issued”
Conclusion
As long as the States are not defying the restrictions imposed by the Federal Government under the CMCO and are merely imposing additional restrictions to suit their respective state priorities, such actions are arguably constitutional and do not run afoul of Article 81.
On a practical level, States cannot rely on the police and army to regulate their additional restrictions, as those are Federal apparatus. The States have to utilise their own state and local authority officials to enforce these additional restrictions.