JULY 16 — I stand corrected where I got it wrong in "Power to close factories — does it lie with the state or federal govt?” 

Environmental health officers (EHO) of a local authority are now authorised officers under the Prevention and Control of Infectious Diseases 1988 (Act 342). This follows amendments to Act 342 vide the Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021 [PU (A) 76/2021] — in force from March 11.

Under section 2 of Act 342, authorised officers now include EHO of a local authority who, in turn, is empowered under section 18(1) to do any of the following:

(a) examine or cause to be examined any person found on the premises with a view to ascertaining if the person is suffering or has been suffering from an infectious disease;

(b) examine the premises and any article or animal on the premises with a view to ascertaining if they are contaminated or infected, as the case may be;

(c) order the premises or any part thereof to be disinfected, disinsected and deratted;

(d) order the premises or any part thereof to be closed until the premises have been thoroughly disinfected, disinsected and deratted;

(e) order the disinfection of all contaminated articles and infected or contaminated animals on the premises or, if such article or animal is incapable of being thoroughly disinfected, order its destruction;

(f) do any other act to prevent the outbreak or the spread of any infectious disease; if has reason to believe that there has been a person with an infectious disease on any premises, or that there exist on any premises conditions likely to lead to the outbreak or spread of any infectious disease.

An authorised officer may at any time enter any premises for the purpose of exercising the powers above [Section 18(2)].

"Local authority” is not defined under Act 342 but under section 3 of the Interpretation Acts 1948 and 1967 (Consolidated and Revised 1989) the term means "any municipal council, town council, town board, local council, rural board, sanitary board or similar local authority established by a written law”.

A worker is seen at his station at Mapo Industries Sdn Bhd’s plastic container manufacturing plant in Port Klang July 8, 2021. — Picture by Miera Zulyana

Clearly, therefore, local authorities [read: state governments] have the power to close factories until they are thoroughly disinfected or to prevent the outbreak or spread of Covid-19. But that power is exercised under Act 342 and not the Local Government Act (Act 171).

Act 171 empowers the local authorities to revoke licenses issued by them at any time without assigning any reason. But the powers "are never absolute; the exercise of powers and discretion are always subject to the scrutiny of the Court.” [See Majlis Bandaraya Pulau Pinang v Datin Noorzaina binti Mat Zain & Anor (2019)]

A licensee has a legitimate expectation that its license runs its course until its expiry.

That said, it is also the law that the local authorities’ power under Act 171 may only be properly exercised in relation to matters already prescribed by the same or by the Regulations made under the same. 

It cannot be in relation to matters outside Act 171 — like prevention and control of infectious diseases – and certainly not on matters governed by other legislation — like Act 324 — unless of course there are specific powers to that effect under that legislation. [See the concurring judgement of Federal Court Judge Mary Lim in Maria Chin Abdullah V Ketua Pengarah Imigresen & Anor (2021)]

As the law now stands, there are indeed specific powers under section 18(1) of Act 342 for local authorities to order closure of premises for the prevention and control of infectious diseases — that is, Covid-19.

Do the local authorities know of their powers under Act 342? Are they represented in meetings of the National Security Councils to be briefed on standard operating procedures on enforcement?

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.