States have leeway not to implement CMCO, say lawyers

KUALA LUMPUR (May 4): State governments have the power to defer the federal government's directive to implement Conditional Movement Control Order (CMCO) effective today, according to lawyers.

Six states, namely Selangor, Negeri Sembilan, Kedah, Penang, Sarawak and Sabah, have announced different plans on the relaxation of the movement control order (MCO) since yesterday. And that has created confusion in the business communities in the respective states and the public. 

Former Federal Court judge Datuk Seri Gopal Sri Ram told theedgemarkets.com that the states can choose not to abide by the federal government-announced CMCO.

“What they cannot do is to violate the regulations. But they (the states) can choose not to take advantage of the leeway granted,” the former senior judge said.

Lawyer Rafique Rashid Ali said the states have the right to do so, as the Federal Constitution under the state lists that states have control over public health, sanitation (excluding sanitation in the federal capital) and the prevention of diseases.

“To the question [of] whether states can choose not to adopt the CMCO, the answer is yes. This is by virtue of the states having domain or control with their respective local administration, municipal councils, corporations, local, town and rural board, and relevant local government agencies.

“States also have control over state works and water. In addition, under the Federal Constitution, the concurrent lists spell out amongst others public health and the prevention of diseases can come under the state's purview,” he told theedgemarkets.com.

Another lawyer Keppy Wong opined that while the MCO is imposed under the Prevention and Control of Infectious Disease Act 1988, the power is conferred to the federal government and not state government.

“It thus follows that the lifting of MCO is also a federal power. However, in terms of running of businesses and opening of shops, they are licensed by the local council and thus under the state.

“But the federal government still retains exclusive power in other aspects such as in relation to controlling the movement of people, transport, curfew, travelling, and others,” Wong explained.

Last Friday (May 1), Prime Minister Tan Sri Muhyiddin Yassin announced the relaxation of the MCO with the implementation of the CMCO effective today, which among others allow restaurants to cater to dine-in customers with reduced capacity, several sectors of the economy to open up and people to do their jogging in parks but they are required to adhere to social distancing practices.

However, some states, particularly Selangor, Negeri Sembilan, Kedah, Sabah, Sarawak and Penang, have imposed certain conditions before deciding on allowing businesses to resume operations today.

According to reports, only Terengganu Menteri Besar Datuk Seri Dr Ahmad Samsuri Mokhtar announced that the state is allowing economic activities to resume tomorrow by implementing the CMCO, but would withdraw such relaxation if there is violation of the standard operating procedure.

Terengganu is among the states that have not recorded any new Covid-19 cases for the past several days.

In Selangor, Menteri Besar Datuk Seri Amirudin Shari announced that the state still does not allow eateries to cater to dine-in customers, but they could cater to take-away customers. Meanwhile, Negeri Sembilan decided to maintain a ban on recreational activities, and Perak is maintaining a ban on park visits.

Penang Chief Minister Chow Kon Yeow said the state will only allow businesses to resume on May 8 and not today. 

Kedah Menteri Besar Datuk Seri Mukhriz Mahathir has deferred the decision to relax the MCO tomorrow until its state security working committee meets on Tuesday.

“Kedah would not compromise on the safety and welfare of the people. For the time being, continue to stay at home and practise social distancing,” Mukhriz said.

Likewise, in Sabah, Chief Minister Datuk Seri Shafie Apdal also said the state would not be implementing CMCO.

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