Is the Movement Control Order Legal?

Is the Movement Control Order Legal?

On Friday night, former Law Minister Datuk Liew indicated that he could mount a challenge to determine the legality of the Movement Control Order (MCO). He went on to label MCO as an illegal act and claimed he “didn’t think” that the Attorney-General Chambers have gazetted Covid-19.

Wait, hang on YB. I urge you to flip open the Prevention and Control of Infectious Diseases Act (PCID) 1988 and check out the First Schedule (Section 2) Item 24, it clearly states: “Any other life threatening microbial infection”. Shouldn’t that suffice? Or would you rather have Parliament list down all the infectious diseases in the world? 

And threatening to take the government to court over legality of the Movement Control Order? 

As a legally trained person, you should be aware that the whole purpose of having subsidiary legislation is so that certain powers/orders can be passed without having to go through Parliament.

For instance, take the Agricultural Marketing Authority (Fruits Export Licensing) Regulations 1990 — do you expect our MPs to debate endless food and agricultural export regulations in Parliament?

I agree that when it comes to laws restricting fundamental liberties, Parliament is the sole body in the Federation that can create such laws. The Federal Court has laid that out in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 CLJ 343 (this case also determined that an amendment to the state constitution of Kelantan which prohibited party-hopping, was inconsistent with freedom of association enshrined in Article 10(1)(c) of the Federal Constitution, but that is a story for another day) 

Also under Article 9 (2) of the Federal Constitution, freedom of movement can be restricted by any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders. Would the PCID not fall under the definition of one of these laws? 

The Federal Court in Ang Ming Lee & 34 Ors v Menteri KBPKT & Anor has confirmed that if Parliament intends to delegate its powers to an authority such as a Minister, only the Minister alone can exercise that power. This Minister (or any other authority) cannot then delegate further powers to any other person.   

And when Parliament passed the PCID Act 1988, Parliament specifically allowed its powers to be delegated to the Minister under Section 11(2) of PCID Act 1988. The Minister may then prescribe measures to be taken to control or prevent the spread of Covid-19.

Last I checked, MCO regulations One through Six were all issued by the Minister under Section 11(2) of PCID Act 1988; therefore, MCO is unmistakably valid in the eyes of the law.

Read more: Former law minister hints at taking govt to court over legality of MCO.

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