Wednesday, January 13, 2021

MCO won’t work without emergency powers, says former apex court judge

Former Federal Court judge Gopal Sri Ram says the emergency move is legally and medically justified, dismissing claims that it will undermine basic freedoms.

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Former Federal Court judge Gopal Sri Ram has welcomed the declaration of a Covid-19 emergency, saying it is not only legally and medically justified but could have been implemented last year when it was first proposed.

Sri Ram also disagreed that the movement control order (MCO) was adequate to fight the pandemic, saying it could only be effective when complemented with the state of emergency.

He said recent experience had proven that it is not easy to control people’s movements in efforts to minimise the spread of the virus.

“Citizens are very difficult to control. You tell them you don’t go to Ipoh, they will go. You tell them please don’t go to Johor Bahru, that is the place everybody will go, because they want to find out why they have been told not to go there,” Sri Ram told MalaysiaNow.

Yesterday, Pakatan Harapan leaders accused Prime Minister Muhyiddin Yassin of seeking wider powers through the emergency move, saying the MCO was an adequate tool to help authorities fight the surge in Covid-19 infections which have so far killed 559 people.

“We feel that existing laws including the MCO that was announced yesterday (Monday) are adequate to mobilise all resources and strength to fight this pandemic,” said a joint statement signed by DAP’s Lim Guan Eng, PKR’s Anwar Ibrahim and Amanah’s Mohamad Sabu.

But Sri Ram said it was proven that the MCO had failed on its own.

“MCO alone cannot work because without emergency powers and control over the affected areas, the government cannot function.

“The hospitals are overloaded. There must be powers to comandeer private hospitals or private buildings and have them converted to hospitals – give them power,” he added.

Sri Ram also dismissed claims that the state of emergency would infringe fundamental liberties.

“No, it does not because notwithstanding any ouster in Article 150(7), fundamental rights are immune from being violated,” he told MalaysiaNow, referring to a provision in the Federal Constitution.

Under Article 150(7), laws enacted during an emergency cannot be challenged in court.

“MCO alone cannot work because without emergency powers and control over the affected areas, the government cannot function.”

Sri Ram said despite this, fundamental freedoms cannot be violated, thanks to the basic structure of the constitution.

He added that details of the emergency proclamation had been clearly spelt out.

“Nobody’s freedom of speech has been taken away, nor has there been any ordinance so far passed which bars freedom of speech, nothing.”

Likewise, he said, there have been no ordinances that curtail press freedom or allow for the detention of people without court process.

“And no ordinance has been passed which can be classified as noxious,” he said.

The state of emergency announced yesterday came amid a spike in Covid-19 cases which has seen daily numbers entrenched in the four-figure range.

The move came just as the MCO took effect at midnight last night, bringing stricter control over public mobility to curb the virus spread.

Muhyiddin had said that the state of emergency which was agreed to by Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah would not lead to military rule, adding that civilian institutions including the judiciary would operate as usual.

He said all elections would be put on hold, but assured that the general election would be called as soon as the special bipartisan emergency committee is satisfied that the health situation is under control.

Sri Ram felt the emergency order was a practical solution to prevent any disruption in the running of the government, amid threats by some politicians to withdraw their support for the ruling bloc.

“It would be in the best interest of the health of the people.

“The government must be able to function,” he added.

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