By Ida Lim | Malay Mail

Police and Armed Forces personnel conduct checks on vehicles at a roadblock at Bandar Sri Menjalara June 1, 2021. — HARI ANGGARA

For the past five months, Malaysians have been living with both the COVID-19 pandemic and the risk of being asked to pay up to RM10,000 for breaches of government rules designed to curb the spread of infections.

But is the maximum RM10,000 amount for individual offenders still in place, following new developments yesterday? 

Before we dive into the views by lawyers who spoke to Malay Mail, here’s a quick recap of the basic facts you need to know:

How did we get here?

Initially, RM1,000 was the maximum amount that Malaysians had to pay in 2020 if they wanted to avoid being charged in court for COVID-19 standard operating procedures (SOP) breaches. 

This RM1,000 amount is stated under Section 25 of the Prevention and Control of Infectious Diseases Act 1988 (Act 342).

But on January 11, 2021, Malaysia was placed under a nationwide state of Emergency, which then resulted in new laws — known as Emergency Ordinances — being created. (Depending on how you count it, you could say there were six Emergency Ordinances and an additional Ordinance to amend one of them. So six or seven.)

The Emergency Ordinances introduced provisions, such as those that gave new temporary powers to the government as long as the Emergency is in place, or amended existing laws such as Act 342.

One of the most memorable Emergency Ordinance provisions was the increase of the original maximum amount of RM1,000 to compound COVID-19 related offences, to the new maximum figures of RM10,000 for individuals and RM50,000 for companies. This took effect from March 11.

But after protests from Malaysians who felt RM10,000 was too high a burden for individual offenders to pay, the government later announced that the actual amount that has to be paid will vary from RM1,500 for first-time offenders and minor offences to RM3,000 to RM4,000 for more severe offences and RM5,000 to RM10,000 for the most serious offences. Companies were to also be offered a range of compound amounts such as RM10,000, RM20,000 and RM50,000, depending on severity of offences. To top that off, discounts were also offered for quick payment within a week or two weeks.

The maximum RM10,000 amount for individual offenders has however stayed on firmly in the public’s mind, which brings us back to the new development yesterday.

Datuk Seri Takiyuddin Hassan speaks during a press conference on the Emergency Ordinance in Putrajaya March 12, 2021. — HARI ANGGARA

What the law minister said

On Day One of the five-day special sitting where the Emergency Ordinances were to finally be tabled in the Dewan Rakyat, Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Takiyuddin Hassan unexpectedly told MPs there that the government would not seek to extend the Emergency beyond its August 1 expiry date and had also decided to revoke all Emergency Ordinances from July 21.

Yesterday was July 26, just six days away from the Emergency ending this Sunday.

Would Takiyuddin’s announcement of the July 21 revocation mean that all Emergency Ordinances — including the compound amounts of up to RM10,000 (individuals) and up to RM50,000 (companies) for COVID-19 SOP breaches — were no longer enforceable from July 21 onwards?

A general view of Istana Negara in Kuala Lumpur. — BERNAMA

Wait a minute… it’s not a simple ‘yes’ or ‘no’ question

First of all, can the Malaysian government even revoke or cancel the Emergency Ordinances just by announcing it in Parliament? 

As of midnight (or at the end of July 26), there was no written public announcement by the federal government to confirm what Takiyuddin had said. Most importantly, there was no Gazette by the federal government on the official federal legislation website as of midnight too.

Lawyer New Sin Yew highlighted the fact that the Emergency Ordinances were promulgated by the Yang di-Pertuan Agong (YDPA), which he said meant the government could not act on its own to revoke the Emergency Ordinances.

“Firstly, any revocation must be signed by the YDPA. It was the YDPA who promulgated it so it should be the YDPA who revokes it. Cabinet cannot act unilaterally and bypass the YDPA,” he told Malay Mail yesterday.

“If the YDPA had revoked it then it needs to be published in the Gazette for it to take effect. It will only take effect and come into operation from the date of the publication in the Gazette. Until these are done, it cannot be said that there has been revocation,” he explained.

As for when the revocation of Emergency Ordinances would take effect, New said it would only take effect from the date of the publishing of the Gazette of the Agong’s revocation decision.

New however said the published Gazette could state that the revocation of the Emergency Ordinances takes effect on an earlier date, which means the cancellation of the Emergency laws would take place retrospectively. 

For example, if such a Gazette of the Agong’s decision was published on July 26, it may mean that the Emergency Ordinances are cancelled on July 26, unless another date is stated.

If such a hypothetical Gazette published on July 26 states that the Emergency Ordinances are revoked from the date of July 21 onwards, it would mean that any government actions — such as issuing notices of compound for RM10,000 to individual SOP offenders — from July 21 onwards would be invalid.

In the current situation where there is only the law minister’s announcement and no Gazette to revoke the Emergency Ordinances, New confirmed that the authorities such as the police can continue to use the powers listed under these Ordinances now.

As of July 26, there were no Gazettes published online by the government to notify the public of the revocation of the 2021 Emergency Ordinances.

Karen Cheah Yee Lynn, co-chair of the Bar Council’s Constitutional Law Committee, similarly stressed that the revocation of Emergency Ordinances are not valid unless such cancellation has been gazetted.

“Revocation of any ordinances/orders/regulations made by way of law and through the proper channel of gazetting, can only be deemed to be legally, properly and validly revoked upon the relevant Gazettes being made to revoke them. Not by way of a verbal announcement made in Parliament by the Law Minister. 

“If a decision was made by the Cabinet on 21 July 2021, the Gazette should have and could have been effected the day after, akin to how the usual announcements made by the government on the PACOIDA (Prevention and Control of Infectious Diseases Act) were made with a Gazette following a day or two thereafter.

“In any event, lawyers usually wait to sight the Gazette as that is the point in time in which it becomes legally and validly effective. There is no necessity to keep silent on such a monumental decision without informing the rakyat, and only wait for a Parliamentary sitting to announce the same, springing a surprise. Any attempts to backdate the effective date in a Gazette would also be seen as a lack of transparency and accountability,” she told Malay Mail.

“Due to the lack of transparency and accountability, and the delay in announcing such an important decision without proper justification as regards the undue delay, this has led to lapses in time in which the rakyat and enforcement officers who were just going on with their usual daily lives and duties, did not have the benefit of having proper context — all because the government failed to apprise the nation of a fundamental piece of information.  

“This is a complete failure and shows their lack of respect to the rule of law, causing unnecessary unproductivity, grief and emotional distress to everyone,” she added.

When asked about the validity of the government’s actions or decisions or exercise of powers under the Emergency Ordinances during the July 21 to July 26 period and whether the public could challenge them (including notices for the maximum RM10,000 compound amount) in court, Cheah said this would ultimately depend on what the Gazette (when there is one) to revoke the Emergency Ordinances say.

“This depends on the nature of offence and the wordings in the Gazette. If the effective date of such revocation is backdated in the Gazette, and the offence relates to one that falls under the EO, then those compounds and fines can be challenged,” she said, noting that is why the wordings and effective date in such a Gazette is important as there would otherwise be much left to speculation.

Cheah agreed that the Emergency Ordinances are currently still valid and can be relied upon by the government even during the period from July 21 onwards as there is no Gazette of the revocation yet, saying: “That is the legal status quo for now until we see the Gazette. Yes.”

A general view of the Federal Court in Putrajaya December 14, 2020. — YUSOF MAT ISA

Can the public challenge the government’s EO actions since July 21?

Lawyer Muhammad Rafique Rashid Ali bluntly described the verbal announcement of the revocation of the Emergency Ordinances to be “illegal” and unconstitutional, as it did not go through the proper pathways to take effect.

“My first view is basically whatever is being declared by the law minister in Parliament is unconstitutional, simply because the Ordinances as well as the Proclamation of Emergency can only be revoked either by His Majesty or Parliament and that has not happened, because there wasn’t any vote taken in Parliament this morning (July 26),” he told Malay Mail.

He explained that the Agong’s revocation decision would need to be gazetted, while the alternative route involves tabling a motion to be debated and voted upon by both the Dewan Rakyat and Dewan Negara before it is then gazetted.

Even though the Emergency Ordinances have not been validly revoked, Rafique argued that the authorities such as the police cannot continue to rely on the provisions under the Emergency Ordinances as the government has said these were revoked.

“This has led to severe confusion among the rakyat and it’ll also lead to issues when it comes to enforcement, because what is the police supposed to do? Where are they supposed to refer to now?”

As for notices for compound amounts that were issued in reliance on Emergency Ordinances from July 21, Rafique said court challenges could be done: “We do not also know whether compounds issued are still valid, so my advice to the public is to contest each and every compound received from July 21, because the government did not notify of this revocation until today, so whatever happened from July 21 until today (July 26), the public is entitled to contest.”

He also suggested that the government pay back what it has collected from notices for compounds issued from July 21 onwards in reliance of the Emergency Ordinance provisions.

Lawyer Datuk Gurdial Singh Nijar said the Yang di-Pertuan Agong — being the person who made the Emergency Ordinances under the Proclamation of Emergency — has the “power” to revoke it on the advice of the Prime Minister.

“The YDPA’s announcement must state when the ordinance ceases to have effect. The announcement must be made before or at the time of the revocation. This is so that all measures vis a vis the ordinance(s) will cease to then have effect. If this process is not followed any such revocation is unlawful,” he said.

While saying that there is no need to gazette such a decision by the Agong and appearing to indicate that an announcement would be sufficient, Gurdial said: “But we do not see the announcement by the government of the YDPA’s revocation.”

Gurdial pointed out that the notices for compounds issued by the authorities for COVID-19 SOP breaches are actually under the Prevention and Control of Infectious Diseases Act which is still in force, clarifying that they are not issued under the Emergency Ordinances.

He said this means that notices for compounds for COVID-19 breaches would still be valid: “Therefore will continue to have effect as nothing to do with Emergency Ordinances.”

Gurdial, however, confirmed that there are some new offences that were created under the Emergency Ordinances, citing the fake news offence as an example. (This is contained in the Emergency Ordinance, where for example, creating or spreading fake news on COVID-19 could result in a maximum RM100,000 fine or imprisonment.)

While saying that the Emergency Ordinances and actions taken under them currently still remain valid as yesterday’s revocation announcement does not take lawful effect, Gurdial agreed that the authorities could still act on the fake news offence under the ordinance or issue notices of compounds for up to RM10,000 for individuals or up to RM50,000 for companies.

“Yes. But it can be challenged as acting in bad faith. A party that Is the government or its agencies cannot approbate and reprobate,” he said.

He explained that such government actions could be subject to lawsuits by the public, indicating that the government could not on one hand say the Emergency Ordinances are revoked but on the other hand also enforce the Ordinances or exercise powers listed under the same Ordinances. 

“Since it says Emergency Ordinances revoked, it can’t take action. If sued it can’t possibly defend itself by saying it was acting unlawfully! Under the law a party cannot rely on its own wrong to justify its action. All this is predicated on fact that YDPA did not revoke. If he did in fact revoke, then of course the compounds etc under the Emergency Ordinances after 21st July illegal in any event,” he said.

Malay Mail understands that Takiyuddin’s Dewan Rakyat announcement of the revocation of “all Emergency Ordinances” were in reference to all seven items here created in the year 2021 (six, plus an amendment): 1. Emergency (Essential Powers) Ordinance 2021 and its amending ordinance 2. Emergency (Essential Powers) (Amendment) Ordinance 2021, 3. Emergency (Essential Powers) Ordinance (No. 2) 2021, 4. Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021 (this is the one that introduced the maximum RM10,000 figure), 5. Emergency (Employees’ Minimum Standards of Housing, Accommodations and Amenities) (Amendment) Ordinance 2021, 6. Emergency (Offenders Compulsory Attendance) (Amendment) Ordinance 2021, 7. Emergency (National Trust Fund) (Amendment) Ordinance 2021.

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