The Pontian municipal council’s order shuttering two businesses for 30 days over their improper display of the national flag may contravene their owners’ constitutional right to a livelihood, lawyers say.
They said the local authority’s reliance on the Local Government Act 1976 and its by-laws was misplaced, as these provisions are subordinate to the Federal Constitution — rendering the enforcement action taken arbitrary and legally questionable.
The lawyers said the operators of a minimarket in Pekan Nenas and a dental clinic in Pontian may have grounds to seek a judicial review.
Lawyer Bastian Pius Vendargon said any enforcement action taken by the authorities must not violate the fundamental liberties enshrined in the constitution, the supreme law of the land, particularly as regards the right to life and personal liberty set out in Article 5.
Secondly, the authorities are constitutionally bound under Article 8 to treat all persons as equal before the law and entitled to equal protection.
“Our Federal Court has time and again emphasised that the right to life also includes the right to livelihood,” he added.
Vendargon was responding to Johor state executive councillor Jafni Shukor’s insistence that the council’s actions were not arbitrary and that they were justified under two municipal by-laws.
One empowers the council president to shutter premises for breaches of licensing conditions or local regulations, while another prescribes standards for the display of the national and Johor state flags.
Jafni described the closure orders as a stern warning against carelessness in matters touching on national or state dignity and sovereignty. He also warned of sterner action if such incidents recur.
Vendaragon, however, said the council’s action could be struck down on grounds of arbitrariness and irrationality.
The lawyer noted that the punishment had been meted out without allowing business owners the right to be heard, which was a breach of natural justice and procedural fairness.
He also said the punishment was susceptible to challenge on grounds that it was disproportionately harsh.
“The closure appears akin to using a sledgehammer to kill a fly,” he added.
Lawyer Syed Iskandar Syed Jaafar said the closure of premises would be justifiable if it were made on health and sanitary violations of if a building is unsafe for occupation — being measures intended to protect the well-being of the local community.
However, he said the sanction in the current case appeared to be “unrelated to the complaint”.
Syed Iskandar said the local authority in Pontian may have also exceeded its authority by closing down the dental clinic, as the licence for it to operate is issued by the Malaysian Dental Council and health ministry.
Lawyer Guok Ngek Seong said the aggrieved business owners may initiate judicial review proceedings at any time within three months of the formal communication by the authority of its decision.
“The affected person or group could seek a declaration that the decision is bad at law and ask for it to be quashed,” he said, adding that they could also pursue a claim for damages.
