Companies risk prosecution for non-compliance under emergency, says lawyer

The Emergency (Essential Powers) Ordinance 2021 allows for the use of private property and resources to fight the Covid-19 pandemic.

PETALING JAYA: Any company, society or partnership risks prosecution under the Emergency (Essential Powers) Ordinance 2021 for non-compliance if it does not allow the use of property and resources to fight the Covid-19 pandemic, a corporate lawyer said.

“This aspect is worthy of attention and perhaps of concern to the business and the private sectors,” Philip Koh told FMT in response to the far-reaching implications of the ordinance that came into effect last week.

Section 9 states that a company may be charged with non-compliance of a directive by the Yang di-Pertuan Agong (executive). If found guilty, a fine of up to RM5 million and/or jail term not exceeding 10 years can be imposed.

Koh said the onus is on the accused to rebut presumption of guilt that the offence is committed without his knowledge, consent or connivance and that due diligence had been exercised by him to prevent the commission of the offence.

The ordinance allows the government to take temporary possession of land, building and movable property. It also stipulates that any resources may be utilised for any purpose the executive deems necessary.

“The language of the provision to possess and utilise assets and resources for ‘any purpose’ is very wide,” Koh said.

He said the government has so far been targeting the control of the pandemic, with focus on the use of private healthcare facilities.

However, given the disclosure that public healthcare facilities have reached their limits, the business and commercial sectors ought to take note that this incursion onto private property rights and resources is wide-ranging.

“Provisions 3 and 4 of the ordinance also negate the constitutional protection granted under Article 13 of the Malaysian Constitution, which sets out that no expropriation of property rights can be made by any law without adequate compensation,” he said.

Section 5 provides that compensation in such circumstance “shall be assessed by a person authorised by the King (government)” and such assessment is final and cannot be challenged in court.

Koh said the 2017 landmark Federal Court case of Semenyih Jaya held that provisions in the Land Acquisition Act and regulations that vest finality on assessors cannot oust judicial scrutiny.

A five-member bench had ruled that it was a basic structure of constitutional law that judicial oversight cannot be negated simpliciter.

“We await how the courts will deal with the ordinance passed under the emergency provision of Article 150,” he said.

Koh said the express ouster of judicial scrutiny appeared to run counter to the assurance given by Prime Minister Muhyiddin Yassin, who said the government will never interfere with the judiciary as it’s a “beacon of justice”. - FMT