Malaysia

Can state governments overstep Putrajaya and close factories for fear of workplace clusters?


Lawyer Syahredzan Johan  said that as the mechanisms to close factories during the pandemic fall under Act 342, the matter is outside of the jurisdiction of the local authorities, which are overseen by state governments. — Picture by Miera Zulyana
Lawyer Syahredzan Johan said that as the mechanisms to close factories during the pandemic fall under Act 342, the matter is outside of the jurisdiction of the local authorities, which are overseen by state governments. — Picture by Miera Zulyana

KUALA LUMPUR, July 19 — Factories in the Klang Valley allowed to operate during Phase One of the National Recovery Plan (NRP) have come under close scrutiny by members of the public who blame them for the continued rise in Covid-19 cases. 

Two weeks ago, some even suggested that if the federal government will not close down factories, then state governments and local authorities should step in.

However, there are conflicting reports — depending on who is being asked — about whether states have the authority to shut down factories.

Selangor’s Bandar Utama state assemblyman Jamaliah Jamaluddin told Malay Mail yesterday that state governments and local authorities are looking into ways for them to have more say in the matter in the future.

“There are some unofficial discussions between my office and other state assemblymen and councillors,” she said.

“One of the early ideas we are looking at is if local authorities can add some terms to the licences that they issue or for those being renewed.

“For example, terms based on what percentage of employees of the factory have been fully vaccinated,” she added, when questioned further.

However, Jamaliah said that no official plans have been made to implement the ideas, as meetings are difficult with travel restrictions and the state legislative assembly prohibited from meeting under the ongoing National Recovery Plan.

She added that she and her colleagues have yet to consult with a legal advisor on whether such ideas are feasible and if they clash with federal laws.

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She said that by-in-large the federal government and federal laws would take precedence over any laws that the state government enact.

Explaining the matter further, lawyer Syahredzan Johan recently said that the laws at the crux of the matter were the Prevention and Control of Infectious Diseases Act 1988 (Act 342) and the Local Government Act 1976 (Act 171).

He said that as the mechanisms to close factories — along with most other restrictions — during the pandemic fall under Act 342, the matter is outside of the jurisdiction of the local authorities, which are overseen by state governments.

This is determined by Article 75 of the Federal Constitution, which states that: “If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void”. 

“By-laws made by local authorities should not be contradictory with Act 342. If according to Act 342 certain types of factories can operate, then local authority by-laws cannot ‘overrule’ Act 342,” added Syahredzan.

He added that Act 171 did give local authorities general powers to determine by-laws and the terms of which licenses and permits are handed out, depending on the needs of the respective locality.

However, as the terms of currently valid factory licenses handed out by local authorities do not include any matters pertaining to Covid-19, it would be illegal and unethical to revoke licenses on the basis of the pandemic.

Syahredzan’s views are similar to those of Selangor Local Government, Public Transportation, and New Village Development executive councillor Ng Sze Han and lawyer and former Petaling Jaya city councillor, Derek Fernandez.

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Local news organisation Says quoted Ng as saying that the Selangor state government is doing all it can within what it is allowed to under the law, and that its actions are in line with the principles of “rule of law” and “fair and equitable treatment.”

Rebutting claims that factories were causing a high number of clusters, on June 28, the Ministry of International Trade and Industry’s (Miti) released statistics saying that “manufacturing clusters” had “only” contributed to 9.3 per cent of the Covid-19 cases from June 1 to June 23.

On July 13, the Federation of Malaysian Manufacturers also released a statement saying that media reports had falsely suggested that factories are the cause for rising daily Covid-19 cases, claiming that “only” six per cent of the the total number of cases then could be attributed to factories.



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