IT is reported that Prophet Muhammad said: “If you hear of an outbreak of plague in a land, do not enter it; but if plague breaks out in a place while you are in it, do not leave that place.” (Bukhari #5728)

It was a seventh century movement control order, if you like.

The Prophet is also reported to have said: “Do not graze a sick herd with a healthy one.” (Bukhari #5771; Muslim #2221)

By analogy, do not put a sick person with a healthy person. It was another seventh century order on isolation and quarantine.

Bukhari and Muslim are two of the greatest Muslim compilers and scholars of Hadith (the recorded corpus of the sayings and acts of the Prophet Muhammad). Their chief works are accepted by Sunni Muslims – i.e. those following the majority tradition – as second only to the Quran as both a source of religious law and a sacred work. 

Based on the above, Plantation Industries and Commodities Minister Mohd Khairuddin Aman Razali should not have left Malaysia for Turkey – both being infectious disease areas under international and national laws – and should have isolated and quarantined himself upon his return to Malaysia – irrespective of whether he was issued with Form 14B by an authorised person under the Prevention and Control of Infectious Diseases Act 1988 (Act 342).

Similarly, people returning to Peninsular Malaysia from Sabah following the state general election should have observed self isolation and quarantine as both long have been – for centuries now – precautionary measures to prevent the spread of infectious diseases.

As far back as July, Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah had decreed that Malaysians must not be complacent when it comes to observing standard operating procedures (SOPs) designed to stem Covid-19. The king had expressed concern about the increase in new coronavirus cases and detection of fresh clusters.

“Al-Sultan Abdullah urges the people not to lose focus, and to always be disciplined and comply with the SOPs, including quarantine orders,” Comptroller of the Royal Household Ahmad Fadil Shamsuddin said in a statement. 

The king reminded the people that the country would suffer a second wave then if the people lost focus. True enough, the country did not only suffer from a second wave but a worsening third wave that has kept the director-general of health and front-liners sleepless. https://www.themalaysianinsight.com/s/281270

Last Friday, reports emerged that the cabinet had decided to “request” of the king a proclamation of emergency. 

In the lead up to the king’s decision not to proclaim a state of emergency under Article 150(1) of the federal constitution, proponents of the proclamation were heard saying that a state of emergency to handle the ongoing Covid-19 pandemic was not exceptional to Malaysia as many countries had declared one in response to the global health crisis.

Several countries have indeed invoked emergency powers. However, many of these countries employ what have been identified as the “legislative model” whereby emergencies are handled through ordinary legislation – not the constitution – delegating “special and temporary powers to the executive.” (see John Ferejohn and Pasquale Pasquino, The law of the exception: A typology of emergency powers [2004] 2 IJCL 210)

It allows close legislative supervision of the exercise of powers by the executive and sets a timely ending to these powers.

The approach can be seen in common law jurisdictions or countries.

Take the example of Australia, in particular Victoria, which was the first Australian state to record a Covid-19 case – an air passenger from Guangdong, China who arrived in Melbourne on January 19.

This set off a chain reaction as Australia’s federal, state and territory governments implemented emergency plans to combat the spread of the virus. Travel restrictions were imposed and national coordination arrangements implemented.

On March 16, Victoria declared a state of emergency under the state Public Health and Wellbeing Act 2008. Two days later on March 18– the same day the movement control order in Malaysia was imposed –  Australia’s governor-general declared a ‘human biosecurity emergency’ across Australia under the federal Biosecurity Act 2015.

These declarations conferred extraordinary powers on the state chief health officer and the federal health minister respectively to issue directions that successively locked down Victoria and Australia’s society and economy to minimise the rate of infection.

The pandemic therefore marks the first time that the emergency powers have been activated under the two legislation – one a state law and the other a federal law. On August 2, a “state of disaster” was also declared in Victoria under the Emergency Management Act 1986 – another state law – which gives the police greater power to enforce public health directions.

The Australian constitution does not provide the federal government with a general emergency power like Article 150(1) of the federal constitution. Rather, special “emergency powers"are provided for in ordinary legislation, many of which are state legislation. This defines the conditions under which specific kinds of emergencies may be declared.

The legislation comes with built-in safeguards. Victoria’s Public Health and Wellbeing Act 2008, for example, provides safeguards against the powers impinging upon individual liberties, including that: infectious disease management be governed by principles respecting personal rights; measures which least restrict the rights of a person should be chosen; and public health orders are subject to appeal, requiring a review by the chief health officer within seven days.

The act was also assessed as compatible with the state’s Charter of Human Rights and Responsibilities.

Importantly also, the act provides that the longest state of emergency enforceable is four weeks, which may be extended for a period of up to six months.

By comparison, once a proclamation of emergency under Article 150(1) is gazetted, “the floodgates are lifted and legislative and executive powers of the federal government gush forth in exuberance. The executive acquires plenary law-making powers. Parliament’s legislative powers broaden. The federal government acquires power to give directions to the states irrespective of the federal-state division of powers.” (See Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia [2008] at p 676)

Importantly, unlike under the Victorian legislation, a proclamation of emergency under Article 150(1) has no fixed duration.

Now, if the proponents of emergency are amenable to a state of emergency to handle the Covid-19 pandemic, perhaps they should urge the minister for law to amend Act 342 to provide for the health minister to declare a public health emergency, as the case is in Australia, New Zealand and Singapore, among others. These countries share much the same legal traditions as Malaysia.

Or perhaps legislate anew: a public health legislation to replace Act 342, which is very much outdated to safeguard public health against new and emerging infectious diseases. 

A seventh century order has to take new form. It was not observed even by the most religious among the people.

A 1988 law too has to take new form because it is ill-equipped to deal with new and emerging infectious diseases.

These are among the reflections for Maudidur Rasul. – October 29, 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.