The Background

On 01.05.2020, the Prime Minister announced the Conditional Movement Control Order (CMCO). In essence, from 04.05.2020 onwards, various economic and social activities would be allowed subject to observance of specified conditions and standard operating procedure.

On 03.05.2020, the Sarawak State Government announced that it was deciding against implementing the CMCO “until the state government’s study on the implications of reopening economic activities had been completed“. Thereafter on 04.05.2020:

  • six States, i.e. Sabah, Kedah, Pahang, Penang, Kelantan and Sarawak, decided not to follow the move;
  • three States, i.e. Selangor, Perak and Negri Sembilan, said it would limit the number of businesses allowed to resume operations and restrict dine-ins at restaurants and sports and recreational activities.

On the same day i.e. 04.05.2020:

a. Umno vice president Datuk Seri Mohamed Khaled Nordin sat in the proverbial political pundit chair and announced rather colourfully that:

The days of the Federal Government laying down the law of the land may well be over

the Star

b. International Trade and Industry Minister, Datuk Seri Mohamed Azmin Ali, declared that:

“State govts may be sued (by various parties, particularly industry players) if they don’t comply with CMCO“.

NST

c. Senior Minister for Security and Minister of Defence, Datuk Seri Ismail Sabri Yaakob, came out saying that:

“… it was “wrong in the eyes of the law” for people to follow the fourth phase of the MCO from April 29 to May 12 — which had generally closed non-essential businesses and banned people from travelling beyond 10km from their homes — as MCO 4 has now been replaced with the federal CMCO (or MCO 5) that allowed the reopening of the economy, and free movements and social activities for people, except for mass gatherings and travelling to other states.”

“All states and districts are subject to Act 342 and the regulation gazetted for this fifth MCO.”

Star Online

The stage was therefore set for unsubstantiated reports about billion dollar lawsuits from companies and an anonymous quote from the Attorney General’s Chambers office that:

… state laws cannot supersede federal laws … States can issue guidelines and may even have their own laws but they cannot conflict with federal laws.

FMT

The Issue

Whether States Governments can:

  • refuse to implement the Federal Government’s CMCO (“A Complete Refusal“); or
  • opt to implement further restrictions to the Federal Government’s CMCO. (“A Partial Refusal“)

Whether States Governments can refuse to implement the Federal Government’s CMCO

Federalism in Malaysia

Malaysia is a country with a federal constitutional framework. This means the power to govern is constitutionally divided between the:

a. Federal Government; and
b. State Government.

There may be further ‘layers of government‘ that may divide things further between districts, cities etc. but the major ones which govern Malaysia on a:

a. national level i.e. the Federal Government; and
b. state level i.e. the State Government.

By that definition, Malaysia has 14 governments made up:

a. One Federal Government; and
b. Thirteen State Governments.

The above, in summary, is the federal system of government that we have in place in Malaysia.

The constitutional ‘dispute resolution mechanism’ for State and Federal Governments

Due to this federal system of governance, conflicts can arise and a strategy was required to deal with those conflicts.

The framers of the Federal Constitution overcame that hurdle by creating the following mechanism to remove or minimize conflicts i.e. by:

  • assigning exclusive jurisdiction to the respective Governments on some matters. The clearest example of this would be List 1 and List 2 of the 9th Schedule in the Federal Constitution. List 1 sets out all the law making powers exclusive to the Federal Government whereas List 2 are those that are exclusive to the State Government.
  • assigning concurrent jurisdiction in other matters i.e. List 3 of the 9th Schedule in the Federal Constitution where both Federal and State Government have overlapping or concurrent powers to enact laws.
  • giving supremacy to one government’s act.

Thus far, no State has said that it is relying on a particular law passed pursuant to its legislative competence on “Public health, sanitation (excluding sanitation in the federal capital) and the prevention of diseases” as the reason for “A Complete Refusal“. Put another way, the present scenario is not one where there is some State legislation in conflict with the federal law.

Even if there was, broadly speaking, the short answer is that State Governments cannot completely refuse to implement the Federal Government’s CMCO pursuant to either a purported legislative authority or executive authority.

Three Articles of the Federal Constitution are relevant to identify and put forth the general principle that can be no Complete Refusal i.e.:

  • Article 4;
  • Article 75; and
  • Article 81.

Article 4 provides as follows:

Supreme law of the Federation

(1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Federal Constitution

whereas Article 75 and Article 81 respectively states that:

Inconsistencies between federal and State laws

75. If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

…

Obligations of States towards Federation

81. The executive authority of every State shall be so exercised —
(a) as to ensure compliance with any federal law applying to that State;

Federal Constitution

Let us firstly identify the federal law in question i.e. the Prevention and Control of Infectious Diseases Act 1988. In terms of its legislative history, this was when the Bill was being read in 2008 by Dato’ K. Pathmanaban in Parliament:

Rang Undang-undang ini juga akan memberi kuasa undang-undang yang menyeluruh kepada Menteri Kesihatan untuk mencegah kemasukan penyakit-penyakit berjangkit ke dalam negeri dan mencegah serta mengawal penyakit-penyakit berjangkit dari merebak di dalam negeri.

Pada masa ini setiap negeri di Semenanjung Malaysia serta Sabah dan Sarawak ada mempunyai undang-undang sendiri untuk mencegah dan mengawal penyakit-penyakit berjangkit. Undang-undang ini adalah di dalam berbagai bentuk ordinan dan enakmen yang telah digubal lama dahulu sehingga peruntukan-peruntukannya tidak lagi sesuai atau memenuhi keperluan pada masa ini. Juga memandangkan tidak ada satu daripada undang-undang ini yang lengkap dan seragam untuk seluruh negara, maka Rang Undang-undang baru yang lengkap dan seragam perlulah digubal.

Parliament, Parliamentary Debates, House of Representatives, 30 June 2008, 3339, (Dato’ K. Pathmanaban)

In other words, the Act was intended to consolidate a number of pre-Merdeka State Ordinances and was passed pursuant to “Concurrent List” contained in List 3 of the 9th Schedule of the Federal Constitution.

The Act and the Orders as well as the Regulations passed within it purports to permit or prohibit the following:

As a consequence:

  • if any State law is inconsistent with the above federal law, the State law shall, to the extent of the inconsistency, be void as per Article 75;
  • any State executive authority must be exercised so as to ensure compliance with the above federal law.

Conclusion

Given the above, the States of Sabah, Kedah, Pahang, Penang, Kelantan and Sarawak would likely be acting unconstitutionally if they pursued a Complete Refusal. (Although it may be appropriate to ask at this juncture whether ” A Complete Refusal” can nevertheless be sanctioned if the Federal Government was acting unconstitutionally in some way.)

Whether States Governments can opt to implement further restrictions to the Federal Government’s CMCO

Under this limb, in essence, States contend that there can only be Partial Compliance and it is necessary to implement further restrictions – irrespective of whether this is attained by existing/new State legislation or by State executive action – to ‘supplement‘ the CMCO. Is this constitutional?

The arguments on Article 75 above applies once again. In summary, if the existing/new State legislation is inconsistent with the federal law, then it is void to the extent of the inconsistency.

That aside, where State executive action is concerned, Article 81 of the Federal Constitution is similarly applicable once again and which provides as follows:

Obligations of States towards Federation

81. The executive authority of every State shall be so exercised—

(a) as to ensure compliance with any federal law applying to that State; and

(b) as not to impede or prejudice the exercise of the executive authority of the Federation.

Federal Constitution

In other words, State executive action must comply with federal law and “not impede or prejudice” federal executive authority.

So, if States merely executed A Partial Refusal, there may be sufficient room for States to:

  • act in the interest of their State residents; and
  • still remain within the lawful parameters of Article 81.

Conclusion

In summary:

  • if the Federal Government acted constitutionally, A Complete Refusal would be unconstitutional; and
  • if the State Governments complied with federal law and merely executed A Partial Refusal which does “not impede or prejudice” federal executive authority, A Partial Refusal is likely to be constitutional.

All it takes now is for States to take a page from Ol’ Blue Eyes, plan each charted course and each careful step along the constitutional byway and perhaps end up doing things their way.

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