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)
