KUALA LUMPUR, May 5 — The Ministry of Health (MOH) does not have the legal authority (“punca kuasa”) to enforce a medicine price display order that falls solely under the jurisdiction of the Domestic Trade and Cost of Living Ministry (KPDN), three lawyers said.
Manmohan S Dhillon and Abraham Au both opine that Domestic Trade and Cost of Living Minister Armizan Mohd Ali – who gazetted the Price Control and Anti-Profiteering (Price Marking for Drug) Order 2025 – cannot transfer his power bestowed under Section 3 of the Price Control and Anti-Profiteering Act 2011 (Act 723) over enforcement of the Order to Health Minister Dzulkefly Ahmad.
Section 3 of Act 723 states that the Minister may appoint, from among public officers, a price controller, deputy price controller, and assistant price controllers and other officers.
“MOH officers do not have the authority under the Act and the Order to conduct inspections or investigations, retain documents, access records, conduct search and seizure, or issue summonses to private health care facilities or community pharmacies for not complying with drug price display,” Manmohan, a partner at P.S. Ranjan & Co., told CodeBlue.
“The health minister cannot come up with a price display list; only the domestic trade and cost of living minister can do that. MOH does not have the authority to enforce and punish for price display failures.”
According to the lawyer, the MOH can lend “technical assistance” to KPDN officers enforcing the requirement for private health care facilities and community pharmacies to display drug prices under Act 723.
A drug price display FAQ by the MOH’s Pharmacy Services Programme, he said, does not have the force of law either, but is mere “guidance”.
Manmohan said affected parties can file a judicial review application if the MOH oversteps its jurisdiction by trying to enforce the drug price display order that can only be enforced by KPDN.
Similarly, Au told CodeBlue that the MOH “arguably” has no “punca kuasa” to enforce the drug price display mandate, since the Order was made under Act 723 that falls within the purview of the domestic trade and cost of living minister.
“Enforcement action under the said Act comes within the purview of the Price Controller appointed by the Minister of Domestic Trade and Cost of Living under Section 3 of the same Act. That power appears, on the face of it, non-delegable,” said the partner at GS Nijar Advocates.
Au also said the MOH’s drug price display FAQ doesn’t have force of law, but will provide clarity on the implementation of the mandate and the intention behind the Order.
“However, in view of any inconsistencies between the Order and the FAQ (and there is no ambiguity in the words deployed in the Order), then the Order would prevail.”
Genevieve Vanniasingham, an advocate and solicitor practising at RDS Partnership, said KPDN is the proper enforcement authority over the drug price display order.
“Any action or penalty arising from the Order must be initiated or sanctioned by KPDN or its duly appointed officers. Pursuant to Section 4 of the Order, failure to comply with the provisions of the Order constitutes an offence, punishable upon conviction by a fine not exceeding RM50,000 for individuals or RM100,000 for a body corporate,” Genevieve told CodeBlue today.
The lawyer added that the MOH’s drug price display FAQ does not carry legislative force, as it is not a regulation, subsidiary legislation, or ministerial directive under the Interpretation Acts or Act 723.
“The FAQ may guide interpretation, but it cannot expand, restrict, or impose new legal obligations beyond what the Order provides,” said Genevieve.
“Private health care facilities and community pharmacies should therefore ensure their compliance aligns with the Order’s actual wording. They may of course consider the FAQ’s suggestions, but should form their own judgment and seek legal advice on what the Order requires or proscribes.”
Manmohan told CodeBlue that a drug price display mandate cannot be issued under the Private Healthcare Facilities and Services Act 1998 (Act 586), a piece of legislation under MOH’s jurisdiction, amid calls by doctors’ associations for the use of Act 586 instead of Act 723 on the medical profession.
“That legislation [Act 586] provides for a fee schedule, but it does not provide for the display of drug prices.”
The drug price display order – which compels private health care facilities and community pharmacies to display medicine prices – was made under Section 10 of Act 723 that empowers the minister to gazette orders to require “price marking” for any goods or services which are to be supplied.
Manmohan and Au differed on whether the drug price display order itself – separate from the issue of enforcement – interfered with the right of a registered medical practitioner to prescribe or dispense medicines to their patients as per the Poisons Act 1952 (Act 366).
Manmohan – whose law firm mainly deals with medicolegal cases – believes that the government can apply Act 723 onto doctors and that price transparency actually “enhances” the doctor-patient relationship.
On the other hand, Au raised “potential legal anomalies” from applying the medicine price display order onto private health care facilities that potentially contradicts Act 366, particularly Regulation 3 of the Order that does not differentiate the sale or administration of drugs in the context of providing treatment to a patient, from selling drugs on a retail basis.
Au was among the lawyers who represented two doctors who defeated MOH in the case of Government of Malaysia & Anor v. Dr Vijaendreh a/l Subramaniam & Anor at the Federal Court this year, in which the apex court ruled that doctors had the right to dispense ivermectin.
(CodeBlue will report fuller opinions by Manmohan, Au and Genevieve on the substance of the drug price display order in a separate article.)
MOH Plans To ‘Enforce’ Price Display Without KPDN After Grace Period
At a joint media briefing last Friday with KPDN director-general (enforcement) Azman Adam, MOH deputy director-general of health (pharmaceutical services) Azuana Ramli said enforcement of the drug price display order will be “led” by the MOH.
“Occasionally, KPDN officers will participate [in the enforcement]. But sometimes, they won’t because pharmacy officers sometimes go and enforce other Acts. So this will be led by the MOH, but with assistance and participation from KPDN officers,” Azuana told the press briefing at the MOH’s headquarters in Putrajaya.
Mohd Zawawi Abdullah, director of MOH’s Pharmacy Enforcement Division, explained that the MOH plans to simply add on the task of “enforcing” drug price display to its regular tasks of enforcing other legislations, under the MOH’s purview, during the same visit to private health care facilities and community pharmacies.
“For the first three months, we [MOH and KPDN] will work together. After that, MOH is the one that will do it because we’re not going to be doing work twice or thrice. For example, we inspect clinics and pharmacies for enforcement under our own Acts; don’t tell me that we have to do that on one day, but look at price lists on another day – we’ll do it all together,” he told CodeBlue at the sidelines of the media briefing.
Zawawi added that the MOH will look at whether there is a need to involve KPDN “from time to time” on drug price display, after a three-month educational enforcement period from last May 1. “Generally, inspections will be conducted by MOH officers.”
The MOH plans to “enforce” drug price display through officers in its Pharmacy Enforcement Division who, according to Azuana, were appointed as enforcement officers “under our own Acts”.
“So they will be enforcing this Act [723] too because they are used to inspecting private clinics and community pharmacies. Hence, they might just have additional work to do by also looking at implementation of the drug price display order,” Azuana told reporters.
Officials from MOH and KPDN, who weren’t from the legal divisions of the ministries, insisted at the media briefing that KPDN has delegated power (“turun kuasa”) to the MOH to enforce the medicine price display order under Act 723.
“This Act empowers the [domestic trade and cost of living] minister to delegate power to any party to perform duties under this Act. That process has been completed, whereby the KPDN minister has delegated power to MOH officers, namely the pharmacy division, to perform duties related to the Price Control and Anti-Profiteering (Price Marking for Drug) Order that is currently in force,” KPDN’s Azman told reporters.
“So there should not be any issue with ‘punca kuasa’ because they [MOH] have officially been delegated power from KPDN to enforce this Act.”
MOH’s Zawawi told CodeBlue: “As per the Act, the KPDN minister can delegate power to anyone. Just like how Jakim (Department of Islamic Development Malaysia) handles halal inspections under the Trade Descriptions Act (which is also under KPDN) – same concept.”
Alifah Zainuddin contributed to this report from Putrajaya.
Editor’s note: This article was updated to include comments from lawyer Genevieve Vanniasingham.
