WEBINAR 5: ASIA (OVERVIEW) - Maintaining Democracy and Public Order in the Period of Health Crisis – The Malaysian Experience
Nurhafilah MUSA
18 November 2020
Introduction
The year 2020 was supposed to be the year when Malaysia achieved its Vision 2020, launched 3 decades ago. Instead, Malaysians are battling a pandemic of unprecedented scale, along with political instability and economic uncertainty. Malaysians were already experiencing a very tough time. Nevertheless, the maintenance of the separation of powers is crucial to ensure that democracy, public order and public health are preserved in accordance with the rule of law. This blog post intends to document Malaysia’s experience in maintaining democracy and public order during the COVID-19 pandemic through the use of the Control and Prevention of Infectious Disease Act. The post is divided into three sections. First, a brief snapshot of the Malaysian political scenario is presented. The second section deals with how Malaysia is fighting the COVID-19 pandemic within its constitutional framework. The third and final section concludes with some brief thoughts on how Malaysia should move forward.
Political Context
The Pakatan Harapan (PH), or Coalition of Hope, won the Malaysian 14th General Election in May 2018. It was the first time the ruling coalition, the National Front (BN), lost a general election. After 22 months in power, PH lost its majority due to political maneuvering when one of the parties in its ruling coalition, BERSATU, left PH along with a few members of Parliament.
On 24 February 2020, Prime Minister Tun Mahathir–the seventh prime minister–resigned, causing the whole Pakatan Harapan Cabinet to collapse. According to the Malaysian Constitution, the Yang di-Pertuan Agong (YDPA), as the Head of the State, holds the discretionary power to appoint a Prime Minister subject to certain conditions. The candidate for the office of prime minister must be a member of the House of the Representatives who, in His Highness’s judgement, is likely to command the confidence of the majority of the members of the House.
The Yang di-Pertuan Agong (YDPA) invited all 222 Members of Parliament (MPs) to the Royal Palace over a period of two days. On 25 and 26 February 2020, the YDPA consulted with all 222 MPs to determine who among them was likely to command the confidence of the majority and should, therefore, become the eighth Prime Minister. On 28 February, His Royal Highness issued a statement that none of the MPs had the confidence of the majority of the Lower House and instructed party leaders to put forward their own candidate for Prime Minister.
Negotiations were held between the political parties. to find the right candidate for Prime Minister. The political parties presented names to the YDPA and the Conference of Rulers was convened by His Highness for consultation. On 29 February 2020, Tan Sri Muhyiddin Yasin was named eighth Prime Minister of Malaysia and he was sworn in the following day. On 9 March 2020, Tan Sri Muhyiddin’s Cabinet members from Perikatan Nasional (PN), consisting of UMNO, PAS, BERSATU, GPS, PBS and STAR, were presented to the YDPA. With 114 seats, PN held a slim majority over the Pakatan Harapan’s (PH) 108 seats in Parliament. With the exit of BERSATU from PH, several state governments departed from PH and saw changes in political leadership.
Being a government with a slim majority amidst health and economic crises is not an easy feat. It was crucial that bills be passed in Parliament–especially those dealing with the after-effects of Covid-19 in the economic and financial sector. The PN government managed to sail through two parliamentary sittings in June and July. However, after eight months in power, at the end of October 2020, the Prime Minister sought a declaration of a state of emergency in accordance with Article 150 of the Federal Constitution from the Yang di-Pertuan Agong. No reasons were provided to the public.
Speculation was rife that the reason for the proposal was the third wave of the COVID-19 outbreak that was causing an alarming rise of cases in Sabah and other states in Peninsular Malaysia. Another theory suggested it was to pre-empt the Batu Sapi by-election, which was due in a few weeks’ time and, thus, delay the Sarawak State general election that was set for 2021. There was also speculation that the proposal was made due to the assumption that the PH MPs would not support PN in the tabling of the budget which was due in early November.
His Royal Highness convened the Conference of Rulers for consultation and determined that the PN government was managing the fight against COVID-19 and that there was no need to declare a state of emergency. His Highness advised the members of the parliament to support the tabling of the budget in the interest of citizens who were suffering economic hardship.
Fighting the Pandemic within the Constitutional Framework
The first Covid-19 case detected in Malaysia was on 24 January 2020 among a group of Chinese tourists. Cases climbed steadily throughout February, but with no deaths reported. Between 28 February and 1 March 2020, a large religious gathering involving members of the Tabligh group from all over Southeast Asia took place at a mosque in Kuala Lumpur. This gathering caused a rapid increase in the number of COVID-19 cases in Malaysia. By mid-March, COVID-19 cases in Malaysia reached one thousand with death cases being recorded daily and most cases being traced to this religious gathering.
The sources of the Malaysian federal government’s powers for the management of the COVID-19 pandemic can be found in the Ninth Schedule of the Malaysian Constitution. They are (1) Item 3, Federal List on Internal security which includes public order; (2) Item 14, Federal List on Medicine and Health; and (3) Item 7, Concurrent List on Public Health, Sanitation, and the Prevention of Diseases.
In relation to the maintenance of public order, the National Security Council (NSC) is the government agency entrusted with the national policy, management, and disaster aid. The NSC is granted a mandate under Directive No.20 to coordinate and execute appropriate actions during disasters, including pandemics. The NSC is governed by the National Security Council Act (Act 776).
In relation to health, the Ministry of Health is responsible for medical and health services including, among other things, hospitals, clinics, dispensaries, and the regulation of the medical profession. Operating in a federal system, the Ministry has health departments in all states in Malaysia.
The concurrent management of public health, sanitation, and disease prevention is complex because there is no clear formula to establish the legal demarcations between health and public health. With regards to infectious diseases, section 2 of the Control and Prevention of Infectious Disease Act 1988 (Act 342) defines ‘infectious disease’ as any disease specified in the First Schedule. There are 30 diseases listed in the Schedule, including such diseases as Avian influenza, malaria, and Ebola. On 9 June 2020, the Schedule was amended to include COVID-19.
In early March 2020, less than three weeks after Tan Sri Muhyiddin Yasin was sworn in as Prime Minister, he announced a total lockdown or Movement Control Order (MCO) to curb the spread of Coronavirus through-out Malaysia. The MCO was set for a period of two weeks from 18 March until 31 March 2020. The MCO was declared via Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020, a subsidiary law to Act 342, which declared all of the states in Malaysia as infected areas. The application of the Order was extended five times up to 9 June 2020.
The declaration of an infected area was made by virtue of Section 11(1) of Act 342 which states that if the Minister is satisfied that there is an outbreak of an infectious disease in any area in Malaysia, or that any area is threatened with an epidemic of any infectious disease, he may, by order in the Gazette, declare such area to be an infected local area. Consequently, under Section 11(2) of the same Act, the Minister may, by regulations made under the Act, prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area.
Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020, another subsidiary law to Act 342, was enacted, specifying the necessary measures that needed to be taken. The Regulations prohibits travelling within any infected local area except for official, commercial and health purposes; prohibits travelling from one infected local area to another infected area except with prior written permission of a police officer in charge of a police station and bans any form of gatherings. Essential service premises can operate while non- essential premise can only operate with special permission. Types of essential services are contained in the Schedule of the Regulations. Restaurants may open subject to conditions imposed by the Director General. Any contravention of any provisions of the Regulations is considered an offence which is liable to a fine not exceeding RM1,000 or to imprisonment for a term not exceeding 6 months or both.
Aside from the MCO, the Malaysian Government declared a Targeted/Enhanced Movement Control Order (TEMCO/EMCO) over certain areas with observed spikes in the number of COVID-19 cases. TEMCO/EMCO is done administratively and not via any legal declaration made under Act 342. All locals and visitors in the area are not allowed to go out of the area. Non-resident and outsiders are not allowed into the area. All businesses are closed. Food will be provided for the residents. All roads are closed. Police, Army, National Volunteers Department (RELA) and National Defense Team (APM) oversee the area.
At the end of August 2020, the Prime Minister announced the imposition across Malaysia of a Recovery Movement Control Order (RMCO) based on the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.8) Regulations 2020, with effect from 1 September 2020 to 31 December 2020. The Schedule of the Regulation enumerates prohibited activities, including: sports events, tournaments and other events with large numbers of spectators in attendance, sport events and tournaments involving participants from overseas, activities at pubs and night clubs, and any and all activities where it would be difficult for people in attendance to respect social distancing and comply with the directions of the Director General.
Unfortunately, after the Sabah State Election at the end of September, there was a surge of COVID-19 cases especially in Sabah and Selangor. Thereafter, the Malaysian Government declared a Conditional Movement Control Order (CMCO) that was intended to strike a balance between saving lives and protecting livelihoods. The Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.8) (Amendment) Regulations 2020 was employed to impose controls on movement within Sabah from 3 October 2020 to 16 October. It was later extended to Selangor, the Federal Territories of Kuala Lumpur, Putrajaya and, more recently, to specific areas in Johore and Negeri Sembilan. During the CMCO, most office workers are required to work from home with some exceptions for those who provide essential services. All education institutions and places of worship are closed. Only businesses can operate.
Conclusion
Daily press conferences are being held by the Senior Minister (security cluster) and by the Director General of the Ministry of Health to update the public on security and health issues. Consistent and clear communication have been essential in ensuring the public is aware of the precautionary steps to be taken in fight COVID-19. Despite some political tussles, Malaysian public servants–especially those serving in front line positions–have continued to serve the public. This is an important point in relation to the functioning of the separation of powers in Malaysia. The Malaysian government operated without any cabinet members for about two weeks while waiting for the appointment of a new prime minister and a new cabinet. The situation did not bring chaos because the public service continued to function and serve the people in the name of the Yang di-Pertuan Agong, as Head of State, rather than in the name of the prime minister.
In resolving the political deadlock of February and October, the current YDPA introduced a new way of settling matters of national importance: namely, by way of consultation with the Conference of Rulers. The outcome of these consultations between the Rulers was released in the form of a press statement. The decisions of the YDPA and the Conference of Rulers were welcomed by the public. This process has served as another form of checking and balancing government action in Malaysia.
Despite some calls for a general election in order to return the democratic mandate to the people, surveys of public opinion have shown that most Malaysians prefer to focus on the economy and adapting to the new normal. Moving forward, it would be wise for Malaysia to develop an improved framework for the management of concurrent powers, specifically in matters of public health. The war against COVID-19 demands teamwork. Cooperation between all stakeholders and the public is vital to ensure that this war will be won.
Dr. Nurhafilah Musa completed a PhD at Melbourne Law School, University of Melbourne. She has taught courses in constitutional law, comparative constitutional law, Islamic legal system and Malaysian legal system at the Law Faculty, National University of Malaysia (UKM) since 2005. Her research interests are constitutional law, federalism, law and policy, human rights , family law and Islamic law.