MALAYSIANS wait with bated breath for an emergency ordinance on public health protection.
Make no mistake – the Covid-19 pandemic is an emergency, but of the public health kind.
Following the international spread of the novel coronavirus 2019-nCov, which was later officially named as SARS-CoV-2019 (severe acute respiratory syndrome coronavirus 2) from China to 20 other countries, on January 30, 2020, the World Health Organisation (WHO) director-general declared that the outbreak of the disease caused by the virus constitutes a Public Health Emergency of International Concern (PHEIC).
The disease had been, by then, officially named Covid-19.
A PHEIC is a formal declaration by WHO of an extraordinary event which is determined to constitute a public health risk to other states through the international spread of disease and to potentially require a coordinated international response.
It is formulated when a situation arises that is “serious, sudden, unusual or unexpected”, which “carries implications for public health beyond the affected state’s national border” and “may require immediate international action.” Member states have a legal duty to respond promptly to a PHEIC.
Member states, including Malaysia, have dutifully responded to the PHEIC, with many indeed resorting to emergency measures following declarations of public health emergency. These states, however, have not resorted to declaring states of emergency like one under Article 150(1) of the federal constitution. As I have written earlier, these states adopted instead the “legislative model” of dealing with an emergency “by enacting ordinary statutes that delegate special and temporary powers to the executive”.
So, I disagree with Ramasamy Palanisamy that “emergency measures are (not) needed to combat the deadly pandemic.”
But I do agree with him that a state of emergency that suspends “Parliament and state assemblies, which essentially means that the present government would not be challenged” on the exercise of the vast emergency powers that are now conferred on it by the proclamation is not needed.
I have considered the exercise of the prime minister’s 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 required in order to pass a new legislation on public health would have sufficed.
But now that the country is under a state of emergency – whether necessary or otherwise – an ordinance on public health is still a call on the executive. This is one law – if not the only one – that must be promulgated by the Yang di-Pertuan Agong (YDPA).
As Umno president Ahmad Zahid Hamidi duly said, emergency laws promulgated while the proclamation of emergency is in force should only be used to battle the Covid-19 pandemic. This would be in line with the rationale given by Prime Minister Muhyiddin Yassin while announcing the proclamation on Tuesday.
Sarawak’s Protection of Public Health Ordinance is much later to the federal law, Prevention and Control of Infectious Diseases Act and may be looked at. New Zealand’s Covid-19 Public Health Response Act is one of the most recent of a commonwealth country’s legislative response to the pandemic and may be adapted as an emergency ordinance. Like similar legislation passed under public health emergency, it has a sunset clause: if the Act is not repealed sooner, it is repealed on the date that is 2 years after the date of its commencement.
The country now waits with bated breath for an emergency ordinance on public health protection. – January 13, 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.