Arrest and release immediately, investigate and prosecute later during Covid-19 MCO(MADPET)

Media Statement – 4/4/2020

Arrest and release immediately, investigate and prosecute later during Covid-19 MCO

MADPET(Malaysians Against Death Penalty and Torture) is appalled with all the arrests, detentions and the charging in court that are all violating the Movement Control Order(MCO) as Malaysia battles the spread of Covid-19. 

People are asked to stay at home, not move around, not gather in numbers even for sport and to practice social distancing, but then it the police and the enforcement officers by their arrest of persons, detention and charging in court are breaking all that is intended by the MCO.

Administration of Justice in breach of intentions of MCO

When a person is found to have breached the MCO Order, the police should just arrest, get identity and contact particulars and on the spot release them on police bail without a surety, just on personal bond. Later, after the Covid-19 threat has passed, police can summon them to the police station for the purpose of investigation, and proceed with the charging them in court, if needed. Now, the priority is to just make them go back home and stay there.

If the police arrest and detain them, then it is certainly a violation of the very intention of the MCO – social distancing, amongst others. The suspects, the arresting and transporting officers, later those in the police station, including lock-up mates are put at risk of infection, and be mindful that our lock-ups in Malaysia are generally not individual cells, but cells which hold many other detainees, which are usually not just crowded, but over-crowded.

When a person is arrested and detained, then the lawyer/s will also have to come to represent this suspect, and if the police intend to detain these suspects for more than 24 hours, then there will also be a Magistrate, lawyers and prosecutors who may have to make their way to the police station for the remand proceedings. If the person is going to be charged, again the suspects are transported to court with others, placed in holding cells with others, and then moved to court. Here again, there will also be judge, the court staff, lawyers and others who will come close to one another. The risk of anyone involved in this administrative of justice process being infected by Covid-19 is high, and certainly against what the government intended when they put the MCO in place.

So, when anyone arrested for breaching the MCO, in terms of moving around, gathering in numbers for sports or prayers or such offences, the police should just arrest, get their contact details, and immediately release – the due process of the administration of justice can always proceed after the Covid-19 MCO and/or threat is behind us. Photos and videos of the breaches could also be evidence, and this is very possible for almost every other person, including the police, has a smartphone which can do this. For foreigners, if there is worry that they may abscond, then passports could be held in some appropriate cases, if need be.

Over 4,000 people have been arrested by the police thus far during the ongoing movement control order (MCO) with nearly 1,500 charged in court, said Defence Minister Datuk Seri Ismail Sabri Yaakob.(Malay Mail, 2/4/2020).

As of April 1, 378 people had been given custodial sentences for breaching the MCO.

The Prisons Department director-general Zulkifli Omar also expressed worries about the potential spread of the virus that may threatened the lives of current inmates and staff.  “Apart from adding on to the already crowded prisons, the Prisons Department is concerned that they could become the source of Covid-19 outbreaks in prison as their health status are not known,”(Malaysian Insight, 4/4/2020)

The Minister just gazetted  the Prevention And Control Of Infectious Diseases (Compounding Of Offences) (Amendment) (No. 2) Regulations 2020 [PU(A) 111/2020], which came into force on 1/4/2020, which basically made all ‘offences under the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 2) Regulations 2020’ into compoundable offences. 

This means that all MCO law-breakers can be offered a compound, and if you pay the compound offered, that will be the end of it. If not you will charged in court, tried and sentenced according to the law.

Compounds will not also not prevent the violation of the intentions behind the MCO, as anyone arrested will still have the right to consult and/or be represented by a lawyer, the detainee will still be arrested and taken to the police station, possibly held in lock-ups, whilst the compound process takes place.

Compounding Offences of MCO violations, an Administrative procedure, may not ensure Justice

The compound process is an administrative, not a judicial process, in that the police decides on who will be offered a compound and how much, not the courts. For the rich, a compound of RM500 or RM1,000 is nothing at all, but not so for the poor, many of whom who have lost income and jobs. Note that there is also the possibility that the arrest itself was wrong and/or the suspects are innocent – as could be the case of a couple, who went shopping together in Sabah’s south western Sipitang, who was jailed four days and fined RM300 each(Star, 3/4/2020).

However, if an employer/company breaches the MCO and continues operating, hence putting workers at risk, they certainly do not deserve a compound. Justice demands that they be given a deterrent sentence possibly imprisonment for all its Directors,  ‘…manager, secretary or other similar officer of the body corporate…', as per the penalty prescribed in the MCO Regulations.

Likewise, if Ministers or other government officials who, in breach of the law, ‘allowed’ certain business not providing ‘essential service’ to operate, without the explicit written approval of the Director General of Health ought to given a deterrent sentence. No one is above the law.

A person, who was ordered to self-quarantine himself, or someone in area classified as ‘red’ or ‘orange’ where the risk of infecting others is so much higher, also may need a more deterrent sentence.

A mere fine of RM1,000 or less may not even be a deterrent, compared to hours of community service instead of going to prison. For violating the MCO, 24 Catholic seminarians were sentenced to three months of community service (Star, 3/4/2020).

As such, MADPET advocates arrest and immediate release, where further investigation and prosecution will happen only after the end of the MCO and/or this Covid-19 threat.

MADPET also calls on the police to arrest but not detain other criminal suspects not MCO violators, save for those suspected of committing the more serious crimes. After all, we all know that detention or remand is unnecessary for investigation as what did happen in the recent cases of our former Prime Minister Najib Razak, former Deputy Prime Minister Zahid Hamidi and many others.

MADPET also calls for the police to practice social distancing in police lock-ups, and that all that are to be detained in police lock-up ought to be first tested to make sure that they are not infected by Covid-19.

MADPET also agrees with the Prison Department, and says that any new detainee at this MCO period should maybe be placed in quarantine for at least 14 days, and ought to be tested prior to being allowed to join the existing already overcrowded prison population. Noting also, that the only persons in prison that moves in and out are the staff, steps should be made to protect existing prison population from Covid-19.

During this period when Malaysia is facing the Covid-19 threat, where already 3,483 persons have been infected and 57 have died, normal procedures and practices of administration of criminal justice must also be abandoned in favour of the observance of the intention of the MCO, which advocates ‘stay at home’ and social distancing. Justice will still be served, as all who breached the law, will still later be investigated and prosecuted to the full extend of the law.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)