Implementation of Movement Control Order (MCO) from John Austin’s Positivism Perspective.

Social IssuesPhilosophy

  • Author Vimala Tharsan And Dr. Nabeel Mahdi Althabhawi.
  • Published January 6, 2022
  • Word count 1,012

Since the announcement by the Prime Minister of Malaysia, Tan Sri Muhyiddin Yassin on the implementation of the Movement Control Order nationwide, many regulations were imposed under the Prevention and Control of Infectious Diseases Act 1988 to curb the Covid-19 pandemic. Some of the restrictions that were imposed to the public was restriction in movement and gatherings, travel bans, closure of non-essential economics activities and prohibition of sports, religious, social and cultural activities. Besides, regulations imposed on people who infected with coronavirus and also their close contacts to be isolated from the public.

This article discusses regarding MCO implementation in nationwide from Austin’s Positivism Theory perspective. Austin defined law as a command laid down by political sovereign which obliges a person or group of people to a course of conduct and enforceable by a sanction. According to Austin, positive law has three main features which are command, sovereign and sanction.

John Austin was a nineteenth century British philosopher who formulated the first systematic alternative to both natural law theories of law and utilitarian approaches to law. Austin’s theory of law provides necessary and sufficient conditions for the existence of law that distinguishes law from non-law. Austin’s particular theory of law is often called the “command theory of law” because the concept of command lies at its core. This can be seen from Austin’s definition of law. He defined law as the command of the sovereign, backed by a threat of sanction in the event of non-compliance. So, the legality from his perspective determined by the source of a norm and the merits of its substance.

The first feature of law from Austin’s perspective is the type of command. According to Austin, commands are expression of desire by superiors to inferiors. Austin thought that all independent political societies, by their nature have a sovereign. If compared to MCO implementation, the government had expressed their desire to implement such Order to the public in order to curb the Covid-19 pandemic. Therefore, the government as the superiors imposes such Order and regulations to the public(inferiors) in order to enhance public health and safety.

The second feature is sovereign. According to Austin, sovereign must be common where only one sovereign can exist in any political society, in that sense, indivisible but can be made up of several components. The power vested in one person or a body of persons. As compared to current situation, sovereign meant by Austin can strongly relates the Prime Minister and his Cabinet. The Prime Minister and his Cabinet made up by several ministries. However, the Prime Minister and his cabinet are executive bodies and not legislative bodies but during this pandemic, they put the law into operation by implementing order and regulations without referring to Parliament because the executive body has power to make subsidiary legislation under Federal Laws.

Then, he added that sovereign is who were not in the habit of obeying any person and in his turn he commanded obedience from the bulk of the people. Austin believed that every legal system should have sovereign who creates law whilst remain unaffected by it. However, in Malaysia, no one has absolute legal immunity including the Prime Minister and his cabinet. It cannot be said that as the executive body has the power to make binding law during Proclamation of Emergency, they are still subjected to the law they imposed. For instance, the Federal Territories Minister Tan Sri Annuar Musa has been compounded for violating the Standard of Procedure to curb the spread of Covid-19. This indicates that everyone including the body of sovereign subjected to the law. This is what H.L.A Hart argued where he stated that laws may have several sources and legislators are very often subject to the laws they create.

Then, the separation of law from morality. Austin viewed that there should be separation of law from morality. This term indicates that an act can be morally wrong but legally correct and vice versa. Austin stated that “The most pernicious laws and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals”. Therefore, an act can be morally wrong but legally correct if the law does not prohibit such act of the person who subject to it. In my opinion, if compared to the current issue, the MCO and its regulations have been implemented without considering which are morally good or wrong. For example, travelling interstate or running a lawful business are not morally wrong, but there were still restrictions imposed on such activities. This shows that considerations of morality were taken away in the implementation of MCO. I strongly believe that avoidance of morality consideration in MCO implementation allows the government to curb the pandemic better and more effectively.

Finally, law backed by sanction. Austin says that sovereignty is the power of affecting others with evil or pain and of enforcing them, through fear of that evil or fashion their conduct to one’s wishes. The presence of physical force was decisive for an imperial ruler to continue to rule over overseas countries. Similar to the present situation, those regulations were backed by sanctions whereas whoever defy the Movement Control Order and the regulations are punishable with an imprisonment or certain amount of find depends on the type of breach committed. For an example, the offences were classified into three categories based on the severity of the violation with fines ranging RM 1500 to RM 10000 to individuals and RM 10000 to RM 50000 for companies. The fines based on the severity increase the effectivity of the Order and also prevent the people from disobey the rules and regulations imposed.

In conclusion, it appears that from the perspective of positivism theory by John Austin, the Government’s implementation of Moving Control Order and regulations are acceptable. However, I believe that Austin’s theory is incompatible with modern political and social scenario of Malaysia as it doesn’t give room to the very basic ideas of democracy, constitutionalism and separation of power.

I am a third year Law Degree student at National University of Malaysia (UKM).

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