AAS: Federal health law prevails over state’s amid Covid-19

Ranbir Singh Sangha -file pic

KUCHING, May 4: The Advocates Association of Sarawak (AAS) holds that the federal law prevails if there is a contradiction with state laws during outbreaks of infectious diseases.

The association is urging the Sarawak government to immediately request the federal government to defer the application of the Conditional Movement Control Order (CMCO) in Sarawak.

AAS president Ranbir Singh Sangha made these remarks in a statement in reference to a Sarawak Disaster Management Committee (SDMC) press release on May 2, which states that Sarawak will not follow the CMCO in re-opening certain economic activities and sectors as announced by Prime Minister Tan Sri Muhyiddin Yassin recently.

According to Ranbir, there are two laws relating to public health which are applicable in Sarawak — on the federal side is the Prevention And Control of Infectious Diseases Act 1988 (Act 342) or PCID Act, while on the state side is the Protection of Public Health Ordinance 1999 (Cap. 30) (PPH Ordinance).

“Under section 11(1) PCID Act, the federal Minister of Health by order in the Federal Gazette, declares any area in Malaysia to be an infected local area if he is satisfied that there is an outbreak of an infectious disease in such area, or that any such area is threatened with an epidemic of any infectious disease.


“Further, under section 11(2) PCID Act the Federal Minister of Health may, by regulations made under the PCID Act, prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area,” Ranbir revealed.

On March 16, 2020, the prime minister announced a nationwide MCO commencing March 18, 2020 under the PCID Act and the Police Act 1967.

This, according to Ranbir, was enacted into law on March 18, 2020 when in exercise of his powers under section 11(1) PCID Act, the Health Minister declared all states and federal territories in Malaysia as an “infected local area” under the Prevention And Control of Infectious Diseases (Declaration Of Infected Local Areas) Order 2020 [PU(A) 87/2020].

The operation of PU(A) 87/2020 has been extended to May 12, 2020 via the PCID (Extension of Operation) (No 3) Order 2020 [PU(A) 87/2020].

“Corollary to this, the Health Minister ordered various control measures pursuant to his powers under section 11(2) PCID Act. The current control measures under MCO (Movement Control Order) Phase 4 are gazetted as the PCID (Extension of Operation) (No 3) Order 2020 [PU(A) 87/2020].

“Considering the CMCO announced by the Prime Minster on May 1, the AAS expects an imminent amendment to PU(A) 133/2020 to be gazetted to implement the revised control measures effective May 4, 2020.

“In Sarawak, Section 15 PPH Ordinance prescribes that when any area in the state has been declared an ‘infected local area’ under section 11(1) PCID Act, the State Minister having responsibilities for public health may by order regulate the movement into and from the infected local area.

“He/she may also prescribe such measures or actions to be taken by the Sarawak Director of Health, public health officer, any state government officer, or any person within or residing in the infected local area, to prevent the spread of the infectious disease or necessary for its eradication.

“Nonetheless, Section 15 of the PPH Ordinance also contains a crucial proviso, that is, the provisions of any order made by the State Minister under the same shall not be inconsistent with the PCID Act or any regulations made under 11(2) PCID Act.

“In other words, if there is any inconsistency between the federal law and state law, the federal law shall prevail,” Ranbir emphasised.

On March 17, 2020, the Chief Minister announced a state-wide MCO in line with the national MCO. Even prior to this announcement, the SDMC had as early as Feb 1, 2020 announced various control measures to mitigate the spread of Covid-19 in the state, and continues to announce various control measures for Sarawak, in addition to those announced by the federal government.

“The AAS is unaware whether the State MCO and SDMC’s corresponding control measures have been gazetted as Orders as required by Section 15 PPH Ordinance.

“Even if SDMC’s control measures have been gazetted and have the force of law in Sarawak, SDMC’s decision to maintain the status quo and not to follow the CMCO measures may be inconsistent and thus prohibited under Section 15 of the PPH Ordinance once those CMCO measures are gazetted by the federal government.”

Ranbir asserted the effectiveness and success of the MCO depends on its enforcement and that the Royal Malaysia Police only enforces MCO by virtue of Section 5 of PCID Act and policing is limited to current regulations.

“Sarawakian MCO offenders were charged only under PU(A) 133/2020. After CMCO is gazetted, the police will enforce them. That being the case, how will the state government enforce the status quo or SDMC’s measures if they do not have the force of law in Sarawak?

“As such, the AAS urges the state government to immediately request the federal government to defer the application of the CMCO in Sarawak until such time as SDMC may decide on the re-opening of the economic activities and sectors in Sarawak to suit Sarawak circumstances,” Ranbir disclosed. — DayakDaily