Lawyer: MCO arrests 'unjustified', violate Criminal Procedure Code

CORONAVIRUS | A Klang Valley-based lawyer has called out the thousands of arrests made for alleged violations of the government-imposed movement control order (MCO) as largely “unjustified”.

According to Jacky Loi, this is because the Criminal Procedure Code (CPC) does not provide for arrests without a warrant for offences punishable with a prison term of less than three years and for offences that do not fall under the Penal Code.

Under the Prevention and Control of Infectious Diseases Regulations 2020 (PCID, Measures Within The Infected Local Areas) Regulations 2020, those found guilty would be liable to a fine of up to RM1,000, a jail term of up to six months or both.

“Hence, it is clear that violators of the PCID shall not be arrested without a warrant,” Loi told Malaysiakini.

Instead, police should issue bail and summon the MCO violators to attend court on a fixed date to be charged.

"Alternatively, and in appropriate cases, the violators should be offered a compound."

Thus Loi, who is co-chairperson of the Kuala Lumpur Bar Committee Criminal Practice Committee and was commenting in his personal capacity, expressed concern over the high number of arrests.

It has been reported that to date, more than 5,000 arrests have been made as the authorities cracked down on those not adhering to the MCO.

The government imposed the four-week MCO from March 18 to contain the spread of Covid-19 and cut the chain of coronavirus infections.

During the partial shutdown, members of the public are required to stay at home, unless they are heading for permitted work, to purchase food and essential goods; to acquire health and other stipulated essential services and for emergencies.

Jogging, and other forms of outdoor sports or exercise as well as gathering in groups are not permitted.

Justifying use of Section 186

Loi also alleged that the police were using Section 186 of the Penal Code to justify arrests. Section 186 pertains to the obstruction of officers in the discharge of their duties, in this case, while enforcing the MCO.

However, Loi pointed out that Section 22 of the PCID Act 1988 already covered cases of obstruction of duty or disobeying of any lawful order issued by authorised officers. The Act provides for imprisonment of up to two years or a fine or both for the first offence; imprisonment of up to five years or a fine or both for repeat offences; as well as a fine of up to RM200 for every day involved in a continuing offence.

“Most of these arrested persons are eventually prosecuted in court for violating PCID as opposed to an offence under Section 186," he said.

“While I am aware that there are cases where the use of Section 186 is appropriate, its blanket use... to justify these arrests for alleged breach of the PCID is unjustified and unwarranted.

“Both the provisions (PCID Act and Regulations) undoubtedly cover the situation of obstructing authorised officers from carrying out their duties and arrests can only be made with a warrant by virtue of the CPC.

"Using Section 186 is not the solution and will not help in battling the spread of the disease."

Criticisms have mounted over the arrests, with many quarters deeming it excessive and expressing concern over potential overcrowding of prisons and potential health risks.

Last Saturday, it was reported that the Prisons Department had appealed to the courts not to jail MCO offenders as prison overcrowding has made social distancing difficult.

There are currently 73,000 prisoners housed in spaces intended to hold 52,000 inmates.

In response, Chief Justice Tengku Maimun Tuan Mat urged judges to take into consideration prison overcrowding when sentencing those who flout the MCO.

All these led to Putrajaya ordering the Attorney-General's Chambers, the police, and the Prisons Department to sort out the issue of overcrowding in jails.

To date, the coronavirus has sickened 3,793 Malaysians, of which 62 have died while 1,241 have fully recovered. - Mkini