To kill a few rats, you don’t have to use a bomb

 

From Hafiz Hassan

Sharp and scathing indeed. There are no better words to describe former minister Rafidah Aziz’s views on the Covid-19 pandemic and the emergency.

“There is no need for an emergency to be declared to manage Covid-19,” she said.

Make no mistake, the pandemic is an emergency, but of the public health kind.

Following the global spread of the virus from China to 20 other countries, the World Health Organization (WHO) director-general declared on Jan 30, 2020 that the outbreak of the virus constitutes a public health emergency of international concern (PHEIC).

A PHEIC is a formal declaration by WHO of an extraordinary event which is determined to constitute a public health risk to other countries through the international spread of a disease and to potentially require a coordinated international response.

It is formulated when a situation arises that is “serious, sudden, unusual or unexpected”, which “carries implications for public health beyond the affected state’s national border” and “may require immediate international action”. Member states have a legal duty to respond promptly to a PHEIC.

Member states, including Malaysia, have dutifully responded to the PHEIC, with many resorting to emergency measures following declarations of a public health emergency. These states, however, have not resorted to declaring a state of emergency like the one under Article 150(1) of the Federal Constitution.

These states adopted instead the “legislative model” of dealing with an emergency “by enacting ordinary statutes that delegate special and temporary powers to the executive”.

Such legislative model emergency powers can be seen in several common law jurisdictions, Malaysia being one. For example, Singapore’s Infectious Diseases Act – following amendments in 2019 – provides for the minister “charged with the responsibility for regulation of diseases and disease control” to declare a public health emergency if he is “satisfied that there is an outbreak or imminent outbreak of an infectious disease that poses a substantial risk of a significant number of human fatalities or incidents of serious disability in Singapore”.

Besides enabling the declaration of a public health emergency, the amendments in 2019 to the Act included several provisions to “delegate special and temporary powers to the executive”.

Rafidah may not be a legal scholar, but she was correct in saying there was no necessity for the current state of emergency. The government could have resorted to what she called the “administrative process” to manage the pandemic.

Most emergencies indeed – even the most exceptional or novel – can be managed effectively within the existing legislative framework. The exceptional or novel ones, though, may require new legislation or amendments to existing legislation in order to support responses to the emergencies.

Singapore is an example where constitutional provisions, similar to Article 150(1) of the Federal Constitution, are not and have not thus far been invoked to deal with the pandemic, notwithstanding that the pandemic is within the natural meaning of the word emergency.

Rafidah’s “administrative process” could have been done with the legislative model by enacting legislation that delegates special and temporary powers to the executive. This could be done in the form of an Act or amendments to the Prevention and Control of Infectious Diseases Act 1988 (Act 342).

The government had ample time to adopt the legislative model during the two parliamentary sittings in July-August and November-December last year. The latter was significant as it came just a week after the Yang di-Pertuan Agong refused to accede to the prime minister’s request to declare a state of emergency nationwide in October.

The provisions in the Emergency (Essential Powers) Ordinance 2021 — relating to the independent special committee (Section 2), power to take temporary possession of land, building or movable property (Section 3), demand for use of resources (Section 4), compensation (Section 5) and directions for treatment, immunisation, isolation, observation or surveillance (Section 6) — are all provisions that may be made in ordinary statutes, that is in a new Act or by way of amendments to Act 342.

Countries like Singapore, New Zealand and Australia — all common law jurisdictions like Malaysia — have shown that the legislative model has worked in combating the Covid-19 pandemic.

And, most importantly, it does not — as Rafidah scathingly said — render the constitution and Parliament dysfunctional.

To borrow the former Cabinet minister’s analogy: “To kill a few rats, don’t use a bomb.”

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.