The defiance of MCO, the challenge of striking a balance

MP SPEAKS | First of all, I have to lodge a caveat herein before commenting. I wholeheartedly agree with the existence of the movement control order (MCO). I have no problem in giving my nod if necessary action needs to be taken against anyone who has unlawfully disobeyed the order.

Secondly, my entire comment herein is solely based on Malaysiakini's reports, which I assume to be true as reported.

Be that as it may, my comment would be substantially confined to the issue of justice based on facts duly canvassed in the said reporting.

Yes, in my view, the MCO is definitely a good move, given the turmoil we currently face. Hence, it ought to be respected and duly complied with by all, irrespective of their backgrounds or status. Therein lies the rule of law. After all, it is there to save all of us from this fatal virus.

When the people have been constantly reminded to obey the MCO, yet blatantly ignore such an order, I think the authorities have every right to take any necessary action against them. It is highly reasonable, as far as I am concerned.

Thus, in my view, it is fair to caution, arrest or even indict in court any alleged offender who defies the order.

One may ask why should I comment then? My reply would be this: Yes, we may take action against anyone who disobeys the order. But we must also be fair in taking action against such an offender. 

It is a trite law that the decision-making process must be fair and must be seen to be fair. Fairness is a bedrock of the rule of law.

We should never dispense justice based on emotion or anger. It would severely cloud our judgment. And it would be grossly unfair, as a result. Yes, we may dislike or hate the offender, but we should never deny him or her the benefit of rules of fairness.

Let me give you a few examples. Should the alleged offender be handcuffed? Is it necessary?

Why should excessive bails be imposed on some of the suspects? Is this fair and just?

I am of the view that it would defeat the whole idea of having a bail system in the first place, should the court seek to impose any bail excessively. 

Bail is never meant to punish or penalise. The notion of proportionality is also part of justice.

The bail system is created to secure the attendance, of any suspect who is charged for a crime, in court. In never seeks to penalise. A person is presumed innocent until proven otherwise. This is known as a presumption of innocence. This is a universal principle in any legal system, Islam included.

At this juncture, I don't intend to prejudge the reported cases. In law, the legal fraternity has agreed with this maxim: "Justice must be tempered with mercy." Another maxim reads as follows: "Not only must justice be done, it must also be seen to be done." (R vs Sussex.)

There is another one, "Let justice be done though the heavens fall (fiat justitia ruat caelum). All these legal maxims ought to be adhered to if we are serious in seeing the rule of law reigning supreme in our legal system.

I don't want to speculate on the potential sentence that might be imposed against those who are currently arraigned in court for failing to comply with the MCO.

It is indeed fascinating to await what sentence the court might mete out against a person who allegedly disobeyed the MCO to buy instant noodles. Would the court duly consider such extenuating circumstances? Once again, I don't want to speculate.

In Islam, there is a popular story whereby the second Muslim caliph was reported to have suspended the implementation of the Islamic penal system during a famine season. 

A person who had been accused of stealing was discharged and acquitted simply because he committed such a crime due to hunger. Such a reason, the court held, constituted a reasonable doubt. And doubt invalidates hudud law in Islam.

---

MOHAMED HANIPA MAIDIN of Parti Amanah is the MP for Sepang and a former deputy minister in the Prime Minister's Department. - Mkini