Hold violators accountable, but they need not be sent to jail – G25

Deserted streets during coronavirus lockdown - Photograph: wjboyz/Flickr

As we enter into the fourth week of the coming into force of the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 (also known as the movement control order), we continue to see violations of the movement control order despite the warnings and public service announcements circulating in the country.

G25 Malaysia would like to applaud the law enforcement officers for their efforts in keeping these violators in check and taking action against those who flout the order.

However, a case-by-case risk assessment needs to be done by law enforcers when receiving a complaint or when coming across violators. The enforcement of the movement control order must be made in line with its ultimate goal of reducing the spread of the virus without unnecessarily burdening the people or police.

The order is not meant to be a punitive measure so each case must be handled with some compassion and sensitivity. Exceptions need to be made from the beginning so that those with valid reasons are not stopped or charged, thus saving valuable resources and time for both the public and the police.

For example, the elderly should be able to go out in pairs when buying groceries as some may need assistance, whether to drive or carry the groceries. The poor or those who have lost their jobs need to be given alternatives or exceptions when finding food or working for money, so long as they do not put others at risk. A measure of compassion is needed in implementing the order while at the same time keeping everyone safe.

Whilst we commend the good work of enforcement officers in enforcing the order, which at times can be a trying task, in view of the fact that the current generation of Malaysians are not used to such a drastic (but necessary) law as the movement control order, we, respectfully, would like to remind the enforcement officers not to be overzealous but to respect Article 5 of the Federal Constitution (no person shall be deprived of his life or liberty save in accordance with the law) and the rule of law in the enforcement of the order.

We say this because we observe that in a number of cases the enforcement officers have been arresting violators of the movement control order and placing them in custody as if the offence is an arrestable offence. Under the Criminal Procedure Code a violation of the order is a “non-seizable offence”, meaning that it is not an arrestable offence. Thus, the enforcement officer cannot arrest the alleged violator on the spot.

Under the Criminal Procedure Code, a violation of the movement control order is only a “summons case” offence, meaning that legal proceedings against the alleged violator could only be by way of a summons. The enforcement officer concerned must apply to a magistrate for a summons to be issued to the alleged violator.

We are, of course, aware of the power of an enforcement officer to arrest a person on the spot under Section 186 of the Penal Code for the offence of obstructing an enforcement officer in the discharge of his function.

However, with regard to the movement control order, we note that in the vast majority of cases it was a mere case of alleged violation of the order per se, and not a case of obstructing the enforcement officer in enforcing the order. Hence, it was not lawful for the enforcement officer to have exercised the power of arrest against the alleged violator.

In addition, we have seen the courts meting out sentences which are excessive and disproportionate to those arrested under the movement control order, such as in the case of the two men in Sungai Siput, Perak, who were arrested for fishing and initially given a three-month jail sentence (which was revoked and replaced with three months of community service only after an application to review the sentence was filed), and the 24 seminarians of General College in Penang who had been self-isolated in their private compound even before the movement control order and were given three months of community service.

Judges need to look at the entire situation which led to the violation to determine whether the arrest was just, and if so, to give an appropriate and proportionate sentence. Their role during this movement control order is to ensure that justice prevails and the poor and innocent do not end up as criminals to victimless “crimes”.

G25 supports the statement by the director general of the Prisons Department who called for community service instead of imprisonment as a way of reducing the risk of overcrowding in jails and thus reducing the spread of Covid-19 to current inmates and the guards.

We are also encouraged to hear that Bukit Aman’s Criminal Investigation Department director has said that the police are prepared to issue compound fines instead of charging violators in court and are now only awaiting the official directive to implement it. We call on the government to issue this directive as soon as possible.

G25 agrees that those who purposely flout the order must be held accountable. However, in the interest of justice and everyone’s safety, they need not be sent to jail. 

Source: themalaymailonline.com