Why states have no power to modify Putrajaya’s MCO

There appears to be some confusion in relation to the conditional movement control order (MCO 5) issued under the Control of Infectious Diseases Act 1988 (CIDA).

Several state governments are reluctant to implement the full effect of MCO 5, preferring instead to continue with MCO 4 (some with modifications of their own) for a while longer.

Their understandable concern appears to be based on their opinion that the relaxation of activities previously prohibited under MCO 4 is a little “too much, too soon” for their respective states to effectively manage the risk of a spike in infection rates and threat to public health.

It is sad, if these matters have not been discussed collectively between the state and federal governments at the National Security Council (MKN) level, which is the proper forum to do so, because the health minister under CIDA has the legal power to apply different MCOs or modified MCOs to different states based on specific needs.

Perhaps these can be done immediately and all parties can go back to MKN and reach consensus to customise the modified MCOs to meet these specific needs and the capacities of the respective states.

There are two questions that must be considered and kept separate in the discussion of the current apparent conflict between some state governments and the federal government as highlighted in the media.

Failing to keep these questions separate will cause more confusion to the public.

These questions are:

1. Can a state government disregard or modify MCO 5 or choose to enforce MCO 4 on a version modified by them only?

2. Does a state government have powers to regulate and manage the Covid-19 crisis independent from the federal government?

To answer these questions, it is critical to understand that as of today, the only legal power being used to stop businesses from operating as usual or the public from carrying out normal activities is CIDA.

Under CIDA, only the Ministry of Health (MoH) can issue MCOs, and does so after consultations and advice by the MKN which has a task force in each state to coordinate enforcement of its orders and policy.

In other words, if there are no MCOs, then everything is back to normal.

Under CIDA, MoH has issued MCO 5 which supersedes MCO 4. It is this MCO 5 today with its terms and conditions that is the only legal prohibition stopping businesses from operating as usual.

The state and the local authority’s role in CIDA is like the police and other designated agencies to assist compliance with MoH.

It is well within the state’s or local authority’s rights to say that they are unable to assist in carrying out compliance with MCO 5 as they do not have the resources. But they cannot legally say that they are going to enforce MCO 4 using CIDA against the businesses and the public, because MCO 4 has been superseded by MCO 5.

They also cannot legally enforce against the public any variation of MCO 5 using CIDA as a source and head of legal power.

The state has however legal power in relation to matters of public health as provided for in the Federal Constitution as do the local authorities, as matters of health are both their constitutional responsibility.

State governments can pass state laws to deal specifically with the control of Covid-19 for their states. This has not been done in any state other than Sarawak, relying on a general public health enactment previously passed, namely the Protection of Public Health Ordinance 1999.

The local authorities have power to regulate and manage health sanitisation, and control of the diseases under the Local Government Act 1976.

Once again, 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.

If such powers were used, then such powers can only be used so as not to conflict with federal laws or impede or prejudice the exercise of the federal government’s authority in the management and regulation of Covid-19, as provided for under Article 75 and 81 of the Federal Constitution.

There is some leeway for states to tighten restrictions provided that tightening “does not directly conflict or impede or prejudice with the federal government Laws”.

It would be a question of degree, and there will be procedures to be followed under the Local Government Act 1976 or relevant state laws to do so.

There, however, will always be a risk that any such additional restraints above and beyond MCO 5 will result in costly litigation by affected parties for loss of businesses, by them challenging the conflict of laws regulating Covid-19 between state and federal governments.

As of today it is not permissible for any unilateral modification of MCO 5 by the state or the local authority without MoH’s approval, to be enforced against the public using CIDA as a source of power.

Derek Fernandez is a lawyer specialised in public administrative law. - FMT