Can a condo management bar a resident from his home if it suspects he is infected with Covid-19?
On January 28, 2021, She who Must be Obeyed told me that Ismail Sabri – the Minister of Defence – had said that condo management bodies were allowed to test their residents for Covid-19 infection and bar them from their homes – I dismissed it out of hand as ‘fake news’: until she showed a Malaysiakini report.
. What the Minister Ismail Sabri said:
I quote Malaysiakini:
‘The management of condominium and residential complexes has the right to require residents to submit to Covid-19 tests and bar those who fail to comply, Defence Minister Ismail Sabri Yaakob said today.’ 1Malaysiakini report dated January 28, 2021 at 7:19pm.
That is a serious error of law.
The right to a power must come form somewhere: it cannot pluck it out of thin air!
There is no power in the Management Corporation or a condo management body to (a) ask their residents to test for Covid-19 and (b) bar a resident from his home because of a suspicion of Covid-19 Infection.
Because the Act that gives only limited powers to condominium management bodies- does not confer these two powers.
The Strata Management Act 2013 (SMA 2013) is the statute that governs the maintenance and management of residential strata properties: e.g. apartments, condominiums, flats, townhouses, and landed strata properties in gated and guarded developments and commercial strata properties.
. A management body cannot exercise powers it does not have.
These management bodies can only exercise powers granted to them by the SMA 2013.
They have no power under that Act to (a) ask their residents to test for Covid-19 and (b) bar a resident from his home because he is suspected of being infected with Covid-19.
. The SMA 2013 does not grant them medical powers of diagnosis, or to demand they be tested, or the power to bar a man from his residence.
. The PCIDA, an act specifically designed to deal with Covid-19, grants no such power.
The very act that deals with Covid-19 situations, the Prevention and Control and Infectious Diseases Act 1988 (Act 342) (‘PCIDA’) grants no such power to the management bodies.
. Emergency powers do not allow this kind of behaviour.
Neither Article 150 of the Federal Constitution – under which the Government has advised the Proclamation of the Emergency – nor the Emergency (Essential Powers) Ordinance 2021, grant any such powers to condo management bodies.
. ‘A man’s home is his castle.’
The maxim that a ‘man’s house is his castle’ is one of the oldest and most deeply rooted principles in the jurisprudence of common law. William Pitt recalls it in one of his speeches:
‘The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!’
[William Pitt, Speech on the Excise Bill (1763) (quoted in Miller v. United States, 357 U.S. 301, 307 (1958)].
If the resident can keep the government out of his home, what more a management body!
. Those who invoke non-existent laws fail to recognise that there are clear guidelines in PCIDA
The PCIDA sets out procedures how those who are suspected of an infectious disease ought to be treated: humanely, with proper medical care, and within the constitutional rights of the patient.
. Article 8(1) of the Constitution prevents the condo management from taking the law into its own hands:
‘(1) All persons are equal before the law and entitled to the equal protection of the law.’
. Article 9(2) of the Constitution foresees and prevents this kind of excess.
‘Subject to any law relating to… public health, … every citizen has the right to move freely throughout the Federation and to reside in any part thereof.’
The phrase ‘subject to… any law’ points to PCIDA and Art. 150, both of which impose no such restriction on a resident, nor grant any such power to management bodies.
Management bodies are not medically-trained. They would not be able to distinguish the left-hand side of a hockey stick from the symptoms of a Covid-19 patient.
If management bodies put up any such notices as suggested by the minister, they risk breaching not only the Constitution, the common law but also criminal law.
Any resident can ask the court for a declaration that such an act is illegal and that it violates his constitutional rights. And he can ask for damages. Are the management bodies prepared to pay such a litigant?
. What if all Condo residents pass a bye-law at an AGM, depriving a man access to his home, and throw him out on the street?
The answer is No. Why?
Because no body of persons can breach another resident’s constitutional rights. The other residents, during an AGM can only act within the law – not outside of it.
. What if the Local Council issues regulation to do all the things YB Ismail Sabri has suggested?
Again, the answer is No. Why? Because no statutory or administrative body can breach a resident’s constitutional rights. The statutory or administrative body can only act within the law – not outside of it.
. Management bodies must act reasonably; humanely and within the law, and comply with the strict procedures set out in the PCIDA
Management bodies must act reasonably by notifying medical authorities.
Our beloved overworked, underpaid and under-appreciated medical teams all across the country have set up proper procedures: they know better. Ask them. Let them do their job.
. Management bodies must comply with the strict procedures set out in the PCIDA
They should allow self-quarantine procedures as set out by the PCIDA and implemented by our medical professionals.
Management bodies should not become kiasu and play the doctor.
You have no idea what that entails; and you can be sued.
. If the Minister is right, where will the residents –and their children – thrown out of their homes – sleep the nights? On the streets?
If we follow the words of the minister, where will suspected Covid-19 resident put up their nights while they seek medical help?
Is the minister prepared to allow them to live at his home?
Statements like these show poor judgement and may create unnecessary hysteria and clamour at a troubled time like this.