Movement control order: Arrest and release immediately, probe and prosecute later

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We need to avoid congestion in cells and prisons - File photo: themalaymailonline

Malaysians Against Death Penalty and Torture (Madpet) is appalled with all the arrests, detentions and the charging in court of all those violating the movement control order as Malaysia battles the spread of the coronavirus.

People are asked to stay at home, not move around and not gather in numbers even for sport and to practice social distancing. But then it is the police and the enforcement officers – by detaining violators and charging them in court – who are breaking what is intended by the movement control order.

Breach of movement control order’s intentions

When people are found to have breached the order, the police should just arrest them, get their identity and contact particulars and release them on police bail without a surety, just on a personal bond.

Later, after the coronavirus threat has passed, police can summon them to the police station for investigation and proceed with 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 movement control order – social distancing, amongst others.

The suspects, the arresting and transporting officers, later those in the police station, including cell mates are put at risk of infection. Remember, the cells in Malaysia are generally not individual cells but cells which hold many other detainees – which are usually not just crowded, but overcrowded.

When people are arrested and detained, then their lawyers will also have to come to represent these suspects. And if the police intends to detain them 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 these suspects are going to be charged, again they are transported to court with others, placed in holding cells with others, and then moved to court. Here again, there will also be a judge, court staff, lawyers and others who will come close to one another.

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The risk of anyone involved in this administration of justice process being infected with Covid-19 is high, and certainly against what the government intended when they put the movement control order in place.

So, when people are arrested for breaching the movement control, in terms of moving around, gathering in numbers for sports or prayers or similar offences, the police should just arrest them, get their contact details, and immediately release them. The due process of the administration of justice can always proceed after the movement control order and the coronavirus 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 they may abscond, then their 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 with nearly 1,500 charged in court, said Defence Minister Datuk Seri Ismail Sabri Yaakob.(Malay Mail, 2 April 2020).

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

Prisons Department director general Zulkifli Omar also expressed worries about the potential spread of the coronavirus 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” (The Malaysian Insight, 4 April 2020).

The minister has 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 April 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 movement control order violators can be offered a compound, and if they pay the compound offered, that will be the end of it. If not, they will charged in court, tried and sentenced according to the law.

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Compounds will not also not prevent the violation of the intentions behind the movement control order, as those arrested will still have the right to consult and be represented by their lawyers. The detainees will still be arrested and taken to the police station, possibly held in cells, whilst the compound process takes place.

Compounding offences may not ensure justice

The compound process is an administrative – not a judicial – process, in that the police decide 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 incomes and jobs. Note, it is also possible the arrests themselves were wrong and/or the suspects are innocent – as could be the case of a couple who went shopping together in Sabah’s southwestern Sipitang and who were then jailed four days and fined RM300 each (Star, 3 April 2020).

However, if an employer or company breaches the movement control order 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 Moverment Control Order Regulations.

Likewise, ministers or other government officials who, in breach of the law, ‘allowed’ certain business not providing “essential services” 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 an 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 movement control order, 24 Catholic seminarians were sentenced to three months of community service (The Star, 3 April 2020).

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As such, Madpet advocates arrest and immediate release, where further investigation and prosecution will happen only after the end of the movement control order and this coronavirus threat.

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

Madpet calls on the police to practise social distancing in police cells and all who are to be detained in police cells ought to be first tested to make sure that they are not infected by the coronavirus.

Madpet agrees with the Prisons Department and says that new detainees during this movement control order 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 move in and out are the staff, steps should be made to protect the existing prison population from the coronavirus.

During this period when Malaysia is facing the coronavirus threat, where already 3,483 persons have been infected and 57 have died, normal procedures and practices of the administration of criminal justice must also be abandoned in favour of the observance of the intention of the movement control order – which advocates staying at home and social distancing.

Justice will still be served, as all who breached the law wil still be investigated and prosecuted to the full extend of the law later.

Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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