Was it legal? Questions abound over ending emergency powers

 

Will those who faced enhanced penalties after July 21 be entitled to a refund?

PETALING JAYA: The legality of the government’s decision to revoke emergency laws has been challenged by lawyers and civil society groups, with questions raised about what the decision means for those fined or penalised under enhanced penalties for movement control offences.

Several lawyers said the revocation, which was announced in the Dewan Rakyat yesterday, could only be carried out by the Yang di-Pertuan Agong or by Parliament.

Questions were raised about why the revocation, which took effect from July 21, had not been published in the federal government Gazette, while civil society activists asked why the public were informed only five days later.

Transparency International Malaysia president Muhammad Mohan told FMT the delay in announcing the revocation had raised doubts about the government’s intentions.

At the Dewan Rakyat yesterday, opposition leader Anwar Ibrahim questioned if the King had consented to the revocation, while Warisan president Shafie Apdal said it was the King who should decide and announce the revocation rather than the government.

Why weren’t we told?

Bersih 2.0 chairman Thomas Fann questioned why such an important matter was not announced to the public at the time.

He said checks made at the website of the Attorney-General’s Chambers had failed to reveal any gazette notification about the revocation. “The Perikatan Nasional (PN) government has to explain to the public why this is the case,” he said.

Several lawyers said the Cabinet decision to revoke six emergency ordinances would have no effect unless the King had consented and the order was published in the Gazette.

The right procedure

“The Cabinet cannot unilaterally start revoking such things, that is my view,” lawyer Bastian Pius Vendargon told FMT.

He said gazette notification is an important part of legal procedure and the right procedure must be followed for any decision to take effect.

“If the King has not come into play in this instance and there is no gazettement, then the ordinances can’t have been revoked,” he said.

Two prominent lawyers questioned the impact of the Cabinet decision on those who were penalised for movement control breaches.

What about those fines?

Muhammad Rafique Rashid Ali contended that those who had paid their fines and compounds after July 21 could contest the penalties “or refuse to pay them and even ask on what legal basis the compound offer was made”.

“The rakyat now has the right to ignore the compound notices (issued after July 21), contest them in court, and start to write to relevant agencies to ask for a refund,” he said.

Civil rights lawyer Andrew Khoo also contended that those who were fined after July 21 could seek a refund “especially if a person was charged with a law that no longer exists, including penalties that came along with it”.

However, senior lawyer Mohamed Haniff Khatri Abdulla argued that the rules on movement restrictions and compound notices issued so far remained valid, as they were issued under the Prevention and Control of Infectious Diseases Act “and not as emergency ordinances”.

“Many are confused about this matter,” he was quoted as saying in a Bernama report. “Actually, there is no issue about compounds that have been paid, unpaid or will be paid, because they are all under Act 342 (the infectious diseases law).”

However, Haniff Khatri also agreed that the revocation process could only be done by the King, or through a motion of revocation tabled at the Dewan Rakyat.

Laws still in place

The Dewan Rakyat was told about the revocation of the emergency ordinances yesterday in a surprise announcement by Takiyuddin Hassan. He said the government had also decided not to extend the state of emergency, which ends on Aug 1.

Andrew Khoo told FMT that many laws that were introduced through the emergency ordinances were already part of the statute book.

“While there would no longer be a ‘fake news ordinance’, the offence of ‘false news’ still exists under the Communications and Multimedia Act 1998 and the Penal Code,” he said.

Emergency laws that were revoked

A summary of the emergency ordinances:

• Power over land and resources – to allow the government to take possession of land, building or moveable property and also demand for use of resources. Those who went against orders can be fined RM5 million or maximum of 10 years in jail.
• Penalties for MCO offences – to raise fines for MCO offences of up to RM10,000 from March 11. (The fine before that was RM1,000.) Companies committing the offence will be fined RM50,000. For offences with no specific penalty stated, a fine of up to RM100,000 can be levied or a jail term of up to seven years imposed.
• Use of reserve fund – to allow the government to dip into a reserve fund to procure vaccines.
• Punishment for fake news – to fine those who create, publish or distribute fake news related to Covid-19 or the emergency. Penalty: fine of up to RM100,000, a jail term of up to three years or both. If those charged fail to apologise after being ordered to do so by the court, they can be fined an additional RM50,000, and those who pay to “create” such news can be fined up to RM500,000. All fines come with jail terms as well.
• Housing for workers – stiffer penalties against bosses or building owners failing to provide proper housing facilities for workers. Owners of accommodation can be ordered to replace, change or upgrade the facilities should it be found not to meet certain criteria. Those refusing to abide can be fined up to RM200,000 or be jailed up to three years or both. For the first time, the law is extended to Sabah and Sarawak as well.
• Community service – those facing jail terms of up to three years can be sentenced to community service as opposed to those facing jail sentences of up to three months. - FMT