I REFER to the report titled “Lawyer accuses Muhyiddin of breaching rule of law on MCO”, where Nahendran Navaratnam said the prime minister’s announcement that almost all businesses can operate starting today is in breach of the law governing the movement-control order.

With due respect, I beg to differ.

The current MCO is governed by the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (No. 4) Regulations, which was published on April 28. The regulations are effective April 29 to May 12.

Made by the health minister and in exercise of the powers conferred by Section 11(2) of the Prevention and Control of Infectious Diseases Act 1988 (Act 342), which is the principal legislation, the regulations are subsidiary or secondary.

It is a rule of interpretation that subsidiary legislation may at any time be amended, varied, added to, revoked, suspended or revived by the person or authority by which it was made. In Malaysia, this is contained in Section 22 of the Interpretation Acts 1948 and 1967 (Act 388).

This means that if what has been referred to as the “conditional MCO” is to have the force of law or legal effect, No. 4 will have to be amended or varied, or revoked for new regulations to be published in the gazette and made effective May 4.

If that is not done, it means that the regulations will continue to have the force of law until May 12 – it is status quo. The PM’s announced measures do not have the force of law until and unless they are “anchored in and derived from legislation or subsidiary legislation”.

I can do no better than refer to eminent Professor Shad Saleem Faruqi who writes succinctly: “It is noteworthy that executive orders, instructions, directives, policies, plans and schemes do not amount to law unless derived from and authorised by a law. This means that the power of the executive is not inherent. It must be backed by some law and its exercise must remain within the four corners of the enabling legislation. From the constitutional and rule-of-law point of view, an executive order, policy, directive, instruction or scheme has no force of ‘law’ just because of its expediency, workability or reasonableness. It must be anchored in and derived from legislation or subsidiary legislation.”

I do, however, agree with Nahendran that with the National Security Council (NSC) issuing SOPs for businesses to open and the International Trade and Industry Ministry also appearing to be approving the opening of businesses on terms imposed by them, there have been confusion and uncertainties “while little is known of what the Health Ministry has to say about all this”.

Under the NSC Act 2016, the council is undoubtedly authorised and empowered to control and coordinate government entities on operations concerning national security, and to issue directives on matters concerning national security.

Since the Covid-19 pandemic is widely accepted as concerning national security, NSC does have a role to play. But as stated above, directives do not amount to law unless derived from and authorised by a law.

As alluded by Nahendran, it should be remembered that the main legislation that governs and provides for measures to prevent and control the pandemic in the country is Act 342. The power lies with the health minister to make regulations to prescribe the necessary measures.

This is why all four regulations governing the MCO are made under Section 11(2) of the said act.

So, let’s wait and see, will it be the conditional MCO or status quo? – May 4, 2020.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.