YET another controversy.This time it is the new ministerial order, which allows ministers returning from any official visit abroad to be under only three days of observation or home surveillance.While the medical fraternity has raised the “science and evidence” for the three-day observation instead of 10, the legal fraternity are raising the constitutionality of the order.The order is contained in the Prevention and Control of Infectious Diseases (Exemption) Order 2021 made on February 2, officially gazetted on February 8 and in force from February 9 to August 1. http://www.federalgazette.agc.gov.my/outputp/pua_20210208_PUA%2046.pdfParagraph 2 states the subject to paragraph 3, “the Minister exempts the Cabinet of Ministers who returns from any overseas official visit from the application of section 5 of [Act 342].”Paragraph 3 states that “the Cabinet of Ministers who returns from any overseas official visit shall undergo observation for three days or undergo surveillance until be discharged without danger to the public.”Now, section 15(1) of Act 342 states that an authorised officer “may order any contact to undergo observation in such place and for such period as he may think fit, or to undergo surveillance until he may be discharged without danger to the public.”Section 2 of Act 342 defines “contact” as any person who has been or is likely to have been exposed to the risk of contracting an infectious disease, including any person arriving from an infected area.Given that the Covid-19 has been declared a public health emergency of international concerns by the World Health Organisation, infected areas exist outside of Malaysia.As such, every person who returns or travels to Malaysia is a contact without differentiation, be him or her an ordinary citizen or minister or international visitor.Under the federal constitution, Article 8(1) guarantees that a person in one class should be treated the same as another person in the same class. The principles attaching to the constitutional guarantee of equality before the law were laid down by the Federal Court more than 40 years ago in the case of Datuk Haji Harun Bin Haji Idris v Public Prosecutor , which the Federal Court in the case of Letitia Bosman v Public Prosecutor and another appeal  had occasion to enumerate as follows:1. The equality provision is not absolute.2. The equality provision is qualified. Specifically, discrimination is permitted within Clause (5) of Article 8 and within Article 153.3. Article 8 itself envisages there may be lawful discrimination based on classification.4. The first question for consideration: is there classification? If there is and subject to other conditions, the law is upheld. If there is no classification, the law is struck down.5. Discriminatory law is good law if it is based on “reasonable” or “permissible” classification, provided that:the classification is founded on an intelligible differentia (difference capable of being understood), which distinguishes persons that are grouped together from others left out of the group; andthe differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.6. In considering Article 8, there is a presumption that an impugned law is constitutional, a presumption stemming from the wide power of classification, which the legislature must have in making laws operating differently as regards different groups of persons to give effect to its policy.By the looks of it, the new ministerial order stands to be challenged on whether it is discriminatory and if so, whether it is lawful as being reasonable and permissible. While it must be presumed that the legislature understands and correctly appreciates the needs of its own people, its laws must be directed to problems made manifest by experience and that any discrimination is based on adequate grounds.Now, since Harun’s case, and as Federal Court judge Nallini in Letitia Bosman’s case duly observed, “Malaysian constitutional jurisprudence has developed so as to recognise that statutory provisions may be struck down on the grounds of proportionality.” The “proportionality test” was expounded in 2006 by the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia  in the following terms:“When interpreting the other parts of the constitution, the court must bear in mind the all-pervading provision of Article 8(1). That article guarantees fairness of all forms of state action. It must also bear in mind the principle of substantive proportionality that Article 8(1) imports. In other words, not only must the legislative or executive response to a state of affairs be objectively fair, it must also be proportionate to the object sought to be achieved. This is sometimes referred to as the doctrine of rational nexus. A court is therefore entitled to strike down state action on the ground that it is disproportionate to the object sought to be achieved.”Put simply, a legislation or executive action must not only be objectively fair but must also be proportionate to the object sought to be achieved. This was affirmed by the Federal Court in 2015 in Public Prosecutor v Azmi bin Sharom . Less than two years later, another Federal Court in Public Prosecutor v Gan Boon Aun  said:“(T)he test to be applied is whether the modification or limitation pursues a legitimate aim and whether it satisfies the principle of proportionality.”So it looks like the new ministerial order stands to be challenged on grounds of fairness as well bearing in mind that Article 8(1) imports the principle of substantive proportionality.If what is needed to stop the spread of Covid-19 is the people obeying the laws, then the people must be satisfied that the laws are not only fair, but rational and founded on an intelligible differentia.This simply means that if the law is differently applied and enforced, the difference must be capable of being understood. – February 10, 2021.* Hafiz Hassan reads The Malaysian Insight. * This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.
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