I REFER to the Malaysian Health Coalition (MHC) letter that strongly supports the 10 suggestions in the Open Letter to the Prime Minister (dated January 7, 2021) signed by 46 health professionals, including several MHC members. 

Kindly allow me to add to the proposed 10 urgent and critical actions in the open letter. Consider this the 11th action.

I call it the “legislative” action – the goalkeeper in football or wicket-keeper in cricket, if you like.

Yes, as I have written before, the law matters. Even in times of crisis or emergency. 

Even if the government were to act on the proposed 10 urgent and critical actions – or any action for that matter – it must take cognizant of the “rule of law dimensions”. These are not my words, but the words of Prof Shad Faruqi. A week after Prime Minister Muhyiddin Yassin made an official speech and exercised the executive powers under Prevention and Control of Infectious Diseases Act 1988 (Act 342) to declare that the entire country would be on a movement-control order (MCO) starting March 18, 2020, the eminent professor wrote:

“From the rule-of-law point of view, an executive order, policy, directive, instruction or scheme does not… require obedience simply because of expediency, workability or reasonableness. It must be anchored in and derived from legislation or subsidiary legislation.”

“Despite the dire circumstances we are in, there is a need to show fidelity to the [federal] 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,” he adds.

Many governments ­– including Perikatan Nasional (PN) – have responded to the pandemic by taking extraordinary – even unprecedented – measures. They were necessary and unavoidable.

But the use of wide-ranging and over-arching executive powers, which are emergency-like, to authorise surveillances, closures of workplaces and restrictions on movements and gatherings, among others, has raised concerns over the rule of law, which impact on the legal and constitutional order as well as personal freedoms and liberties.

Commendably though, these governments did not resort to declaring states of emergency like one under Article 150(1) of the federal constitution. Instead, they employed what have been identified as the “legislative model” of dealing with an emergency “by enacting ordinary statutes that delegate 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)

This allows for executive powers responding to an emergency like the Covid-19 pandemic to be placed on a clear legislative footing.

I hereby humbly call for a new legislation to support the proposed 10 urgent and critical actions that would, among others

- prevent, and limit the risk of, the outbreak or spread of Covid-19 (taking into account the infectious nature and potential for asymptomatic transmission of the disease);

- avoid, mitigate, or remedy the actual or potential adverse effects of the Covid-19 outbreak (whether direct or indirect);

- have enforceable measures that are effective.

Strong rule of law requires that rules and regulations are enforced effectively and without improper influence by public officials or private interests.

Act 342, which is the principal legislation that provides for the prevention and control of infectious diseases in the country, has remained the same since its enactment in 1988 and is much outdated and antiquated. Like many public health laws, as the law is often referred to, Act 342 is outmoded in ways that directly reduces its effectiveness and conformity with modern standards. Indeed, it does not reflect contemporary scientific understandings of infectious diseases (e.g., surveillance, prevention and response) or legal norms for protection of individual rights.

Only the prime minister has the power – under Standing Order 11(3) of the Dewan Rakyat – to call for a special Dewan Rakyat sitting ahead of schedule if the public interest requires.

For the sake of the country.

As such, the nation will pray hard that the prime minister will announce that his government will undertake the 11 actions plus the three additional actions as suggested by MHC to prevent the country “from slipping into Covid-19 intensive care”. – January 8, 2021.

* 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.