LETTER | Conditional MCO: Mixed signals from federal and state governments

LETTER | We are on the second day of the conditional movement control order (MCO) and I, like many other Malaysians, are rather confused about its implementation.

I must admit, and rather embarrassingly so, that my confusion mainly stems from my lack of insight into our Federal Constitution.

When the conditional MCO was first announced by Prime Minister Muhyiddin Yassin, many state governments quickly announced that they would not comply with this ruling. I have always known that there is some form of separation of powers between the state and federal governments. However, I also assumed that this was only in matters related to religion, land and local councils.

That was my layman’s view.

I have now come to learn that the Ninth Schedule in our Federal Constitution contains the Legislative Lists -three lists which define the separation or distribution of legislation. There is the Federal List, the State List and the Concurrent List.

The concurrent list defines areas where both Federal and State can legislate but again, if I am not wrong, the underlying principle in the Constitution is that federal law always takes precedence, based on Article 81.

Now that certain state governments are choosing to directly ignore the federal government's law, is this not in direct violation of the Constitution? It may have simply been a case that the state governments felt that the announcement by the prime minister was merely an advisory as the announcement was made before the regulation was gazetted.

For the purpose of timelines, the announcement was made on the morning of May 1, 2020, while the regulation was only gazetted on May 3, 2020.

This would appear to be the case as Defence Minister Ismail Sabri Yaakob stated on May 4, the day that the conditional MCO came into force, that all states would have to follow the new regulations as it had now been gazetted.

International Trade and Industry Minister Azmin Ali also came out to say that states that do not follow the new regulations could be subject to legal proceedings by industry players. Even after these statements, various states continued to say they will not follow the new regulations.

If this is the case, are the states not going against the Federal Constitution? The very instrument that they are supposed to uphold?

To add further confusion, we have remarks from a prominent politician who said: “The era of the federal government having the final say is over.”

Is this not akin to causing political strife and turmoil as well as blatantly challenging the Federal Constitution?

As a layman and concerned citizen, I am rather troubled. Are the states really allowed to go against Federal law? Which article of the state or Federal Constitution is being referred to when choosing to ignore the conditional MCO regulation?

What exactly are the states basing its decisions upon? It is not enough to say that a meeting was held and a consensus was reached. Do our elected representatives have a full understanding of the Federal Constitution or are they purely making random statements?

The public at large is already confused. The business community has been affected by these mixed signals, especially those having offices in different states. How are they supposed to plan and engage to restart their businesses when there are conflicting views on what they can and can't do?

I am sure even the civil servants operating in different states are unsure whether to follow the federal regulations or state regulations. And let’s not talk about how foreign investors are looking at us.

I implore the politicians and the relevant powers that be to give us facts, not rhetoric, and certainly stop playing politics at this time. Again, I emphasise, make your decisions based on the prevailing laws and not what you think you can do.

And then tell us which law or article of the Federal or state constitutions gives you that power or authority. Gone are the days where we need to accept anything you say as being gospel just because you are in a position of power.

The media should also question politicians which law, regulation or constitutional article they are referring to when they claim they have the right to do something or not to do something. That will give us all some clarity. At the very least it will show whether these politicians have a grasp of the applicable laws in the first place. That is what accountability and good governance according to the rule of law is about.

I still do not know who is right or wrong or who is acting within their allowed powers in this current dispute between the state and federal governments. I am neither a lawyer nor a constitutional expert but rather just a concerned layman citizen.

What I do know however, is that knowledge of the constitution is not just a matter for the lawyers. We should all know and understand our constitution to ensure our rights are protected. And to call it out when it is not.

Several lawyers have spoken up about these anomalies, but we cannot simply leave it up to the legal fraternity. As citizens, we need to ensure that our politicians make decisions and run the country as per the constitution and not at their whims and fancies.

The Federal Constitution is after all the supreme law of this nation.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.