Upside-down Malaysia, Johor flags: Does Pontian Municipal Council have the power to order a 30-day closure of premises?

Recently, instances of the Jalur Gemilang being hung incorrectly made headlines nationwide, putting a damper on our country’s 68th Merdeka Day celebrations. After an upside-down Malaysian flag erected by a hardware store in Kepala Batas, Penang, got all the media spotlight, Malaysians’ attention then shifted to the south of Peninsular Malaysia, specifically to Pontian.

There, two separate premises went viral for hanging flags upside-down: The Jalur Gemilang at a private dental clinic, and the Johor state flag at a minimarket. In both instances, the Pontian Municipal Council (MPPn) acted swiftly.

The flags were immediately taken down and corrected. Furthermore, both premises were given a notice of closure for 30 days within 24 hours of the offences being committed.

However, not everyone is a big fan of the 30-day closure order, most notably Deputy Communications Minister and Kulai Member of Parliament (MP) Teo Nie Ching, who found the order to be excessive. She further urged MPPn to review the decision.

With that in mind, one question many have asked is whether MPPn actually has the authority to order premises within its jurisdiction to be closed for 30 days. Moreover, is putting up flags incorrectly a sufficient reason for such orders to be implemented?

Well, join us as we explore the relevant laws and by-laws on the matter in depth below to find the answer.

The power given to local authorities, such as MPPn, to make by-laws under the Local Government Act 1976

In Malaysia, local authorities such as MPPn have the power to make, amend and revoke by-laws, a law that only applies within their respective jurisdictions. A by-law is a subsidiary legislation, which is considered a written law under Article 160(2) of the Federal Constitution.

In MPPn’s case, its authority to make by-laws is conferred by Section 102(s) of the Local Government Act 1976 below:

Meanwhile, Section 103 of the same Act prescribes that a by-law will only come into effect when it is confirmed by the State Authority and published in the Gazette:

Circling back to the subject matter at hand, MPPn ordered the closure of the two aforementioned premises in Pontian through the Business and Trade Licensing (MDP) By-Laws (UUK) 2019, a by-law that was confirmed by the Johor State Authority and published in the Gazette.

The power of MPPn president to issue a notice of closure for offences relating to the flying of flags

Specifically, UUK 49(2) of the Business and Trade Licensing (MDP) By-Laws (UUK) 2019 below empowers the MPPn president to order the immediate closure of any premises that violate any term of the license or by-laws via a written notice.

Furthermore, UUK 49(3) establishes that no premises can resume operations before the end of the closure notice issued, unless they received permission from the MPPn president. UUK 49(4) However, the by-law said that during the closure period, the owners of the premises can submit a written appeal, but further decisions are subject to the discretion of the MPPn president.

Meanwhile, UUK 45 of the by-law below prescribes that it is an offence for premises that don’t fly the Jalur Gemilang and Johor state flags in accordance with the proper protocol.

Furthermore, the protocol for the hanging of the Malaysia and Johor flags was established in a circular issued in 2018. Among others, it established the correct way to display the Jalur Gemilang, Johor state flag and Johor district flags, as well as when to erect them.

For the latter, the circular said that for Merdeka Day celebrations, the flags should be flown 2 weeks before August 31 and taken down on 17 September every year. Of course, hanging the Jalur Gemilang and Johor state flag upside-down is clearly against the protocol.

Therefore, there shouldn’t be any doubt about the authority MPPn possesses to issue the 30-day closure notice to both premises.

Moving forward, let’s all take these cases as a reminder to be more attentive when flying the Jalur Gemilang and state flags.

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