Pandemic rules and the law

The Covid-19 crisis engulfing the nation (and the rest of the world) calls for drastic measures to prevent the spread of the affliction, trace those affected and treat those afflicted.

Measures, such as those under the movement control order (MCO), that shutter thousands of businesses, throw millions out of work and order the bulk of the population to stay at home are, despite their severity, absolutely necessary and unavoidable.

Citizens must obey the rules promulgated. Though we have a constitutional right to censure freely, we must obey promptly. We must also do whatever we can to assist our fellow citizens whose lives are devastated due to this pandemic.

On its part, the government has a duty to listen to constructive criticisms and to be consultative.

It must draw on the rich talent of non-governmental organisations and individuals to understand and tackle this crisis in its manifold dimensions.

The political executive and the bureaucracy must remember that systems in which people participate are systems they are likely to internalise and respect.

Those in positions of authority must also remain cognisant of the rule of law dimension. Power is not inherent. It must be derived from the law and its exercise must remain within the four corners of the enabling legislation.

From the rule-of-law point of view, an executive order, policy, directive, instruction or scheme does not amount to ‘law’ (and thereby require obedience) simply because of expediency, workability or reasonableness. It must be anchored in and derived from legislation or subsidiary legislation.

In turn, the legislation and subsidiary legislation must be grounded in the supreme Federal Constitution, which confers legislative, executive and judicial authority on all functionaries of the state at both the federal and state levels.

Despite the dire circumstances we are in, there is a need to show fidelity to the Constitution and the laws. It will be in the spirit of constitutionalism if every authority issuing an order were to disclose the legal fountain from which the power derives.

For instance, Bank Negara has ordered a six-month freeze on specified loan payments. The Human Resources Ministry has said employers cannot withhold salaries of workers who could not report for work due to the MCO.

Beneficent and beneficial though these orders are, it will enhance their legality and legitimacy if there was clear mention of the provisions of the law under which they were issued.

We need to enact more laws and policies to protect swathes of our population devastated by this stay-home order.

There are businesses whose sources of supply have dried up and who are unable to fulfil their contracts. Parliament should pass laws to give them the shield of the legal doctrines of “frustration” or “force majeure”.

Daily wage earners, part-time workers, hawkers, taxi drivers, refugees, migrant workers, and vegetable farmers face bleak times.

There are human rights dimensions to their plight. Let us note that the constitutional right to ‘life’ includes the right to livelihood and to the necessities of life.

The government facilities for testing for the Covid-19 virus are so over-strained that thousands of people who wish to be examined are being turned away or asked to go to private hospitals, whose fees are exorbitant.

If there ever was a need for price control, here it is! If the price of essential goods can be controlled, the price of essential services should likewise be regulated.

We need innovative laws and policies to meet the worsening crisis.

Lawyer Puthan Perumal has suggested that owing to the magnitude of our problem and its urgency, Parliament should utilise its special powers under Article 102 of the Constitution to authorise extraordinary expenditure by our frontline agencies and personnel.

Regrettably, Parliament is not in session nor is it being summoned to deliberate and legislate despite the exceptional circumstances.

Under Article 55(1), no more than six months can elapse between the last sitting (which was Dec 5, 2019) and the first meeting in the next session (which is scheduled for May 18).

A student has enquired whether on the authority of the Prevention and Control of Infectious Diseases Act 1988, the convening of Parliament can be further postponed.

My reply has to be that an ordinary Act of Parliament cannot violate the commands of Article 55(1). The Speaker of the Dewan Rakyat has to find some innovative way, such as video conferencing, to enable Parliament to sit and deliberate before the six months expire.

The only way out is – and this is not a recommendation – that the Yang di-Pertuan Agong, acting on the advice of the prime minister, proclaims an emergency under Article 150 and then promulgates such Emergency Ordinances under Article 150(2B) as circumstances appear to him to require.

Whatever path is chosen, the Constitution must prevail in times of stability as well as crisis.

Students have also asked whether the federally passed Prevention and Control of Infectious Diseases Act can interfere with people’s freedom of religion to congregate for prayers, and pilgrimages.

My answer is that freedom of religion is subject by Article 11(5) to “any general law relating to public order, public health or morality”.

Another issue raised by some students is that except in relation to the federal territories, Islam is a matter within state jurisdiction and therefore the ban on Friday prayer and tabligh gatherings must be issued by state Islamic authorities and not the federal government.

The answer to this is found in Article 11(5), which applies to all religions and to the federal power over medicine and public health and the prevention of diseases in Schedule 9, List I, Para 14 and List III, Para 7.

If there is any further doubt, then Their Majesties, the Sultans, can resolve the issue by exercising their power under Article 38(2) to deliberate on any matter they think fit and issue instructions to postpone all Muslim religious gatherings till further notice.

In addition, Article 3(2) permits the Sultans to authorise the Yang di-Pertuan Agong to represent them on any matter of Islam.

Due to the approaching Ramadan, there is the likelihood of large Muslim gatherings at nightly ramadan markets.

Many of the faithful may wish to go to the nightly terawih prayers. As head of the religion of Islam in their territories, Their Majesties need to instruct mosques and state local authorities to take the necessary precautions. Islam permits faith and reason to go hand in hand.

Emeritus Professor Dr Shad Saleem Faruqi is holder of the Tun Hussein Onn Chair at the Institute of Strategic and International Studies Malaysia. The views expressed here are entirely the writer’s own.

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