As at 4.24pm, Saturday 21 March 2020.
Many unverified messages are being forwarded. This short piece is to clarify what can and cannot be regulated and by which authority under the Movement Control Order that will last between 18 and 31 March 2020.
Operating hours of businesses and markets
First, regarding operating hours of businesses and markets. Under normal circumstances, there can be different rules made within different states. Local governments are the ones with the authority to make regulation for operating hours of markets, empowered by the Local Government Act 1976. By convention they also assume the authority of regulating operating hours of all businesses that fall under their domain, although it is unclear which legislation provides them with this authority. This is why different state governments are the ones issuing such regulations, because local governments come under state jurisdiction as listed in the Ninth Schedule of the Federal Constitution 1957. For example, the Malacca state government has determined that all eateries are to close between 7pm and 7am (except for drive-throughs).
However, in Pahang the notice was issued by the Chief Police Officer (CPO) of Pahang, not the state government. The police is acting on their powers under the Prevention and Control of Infectious Diseases Act 1988 and the accompanying gazetted Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020, which permits the police to assist in the control of such diseases. These regulations are what gives the Movement Control Order (MCO) its legal legitimacy, in effect from 18 to 31 March 2020.
Different guidelines in different states?
Can there be different guidelines from state to state? Again, under normal circumstances, this is perfectly fine. But because we are now operating under the MCO, as long as any of the local government guidelines are inconsistent with the MCO, the federal MCO will prevail. This is because ‘public health’ comes under the Concurrent List in the Federal Constitution, meaning that both federal and state governments have the authority over the prevention of diseases. And Article 81 of the Constitution says that state government authority should be exercised not to impede upon the federal government’s authority.
For example, the Ministry of Housing and Local Government has released a set of FAQs regarding the operations of the markets under the Movement Control Order (MCO). If the state or local governments’ regulations on markets are inconsistent with the federal government’s, the latter will override the former.
Regulation of vehicles
Finally, there are also messages sent regarding the requirement for only one passenger at a time within a vehicle. Senior Minister Datuk Fadillah Yusof said on 21 March 2020 that only one person can represent the family to go out and run essential errands. Section 31(2)(b) of the Prevention and Control of Infectious Diseases Act 1988 permits regulations on the “movement of any vehicle… to prevent the outbreak of infectious diseases.”
Because police comes under the “Federal list” of the Federal Constitution, they have the authority to regulate and monitor all vehicles as authorised officers throughout the country. This is police jurisdiction, and state or local governments cannot override the police in their actions.
Different police controls in different states?
Can the police impose different rules in different places? This depends on the definition of “infected area” under the Prevention and Control of Infectious Diseases Act 1988. The Attorney General’s Chambers had gazetted all states and three federal territories as infected area under the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020, but this applies only between 18 and 31 March 2020. If in the future, the area that is “infected” changes, it is possible that different rules can then be imposed in different states. However, this is subject entirely to the discretion of the federal government.