Legal experts have called on a dental clinic in Pontian, Johor to appeal a 30-day closure order issued by the district municipal council after it accidentally displayed the Jalur Gemilang upside down at its premises.
Although Clause 49(2) of Johor’s Business and Trade Licensing By-laws 2019 empowers the state’s municipal councils to shutter any premise that violates its licence conditions, lawyers said the penalty imposed on the clinic appeared harsh and disproportionate given the nature of the offence.
Lawyer Derek Fernandez said closures are typically reserved for violations that pose a risk to public health, safety or harmony.
“Closing down or suspending operations of a business is a serious matter, and there must be a very good basis for doing so,” the former Petaling Jaya city councillor said.
“There must be a sufficient nexus between the breach of a condition and the closing of the premises to justify why such action is needed, failing which it may be open to legal challenge. It is best if the licensee appeals to the council as a first step.”
Fernandez added that in cases where errors can be rectified immediately, a warning by the authorities and an instruction that the owner correct the mistake should be sufficient.
Former Malaysian Bar president Salim Bashir said a fine would have been a more appropriate sanction in the circumstances of the case.
“More so when it involves a professional licensee offering medical services, which is also subject to its own professional body regulatory supervision,” he said.
“The business owner could challenge the council’s decision in court through a judicial review.”
Skudai DAP leader Dr Boo Cheng Hau condemned the council’s action as ultra vires the Local Government Act 1976, asserting that flag-related regulations lie within federal jurisdiction and fall under police enforcement.
Constitutional law expert and Universiti Malaya adjunct professor Philip Koh said the legal validity of such enforcement depends on the “pith and substance” of the law.
“A practising professional is still subject to local government regulation, but there must be a distinction when a disproportionate penalty is imposed for an unintentional act,” he said.
On Aug 21, the Pontian municipal council issued a 30-day closure order to a dental clinic after it was found displaying the Jalur Gemilang upside down.
Pontian municipal council president Abdul Azim Shamsuddin previously stated that all licensed premises are required to display either the Jalur Gemilang or the Johor state flag correctly during designated periods, including Merdeka month.
