Eliminating Deaths and Abuse in Custody Together (Edict) notes with concern the charge of movement control order violation brought by the government against 24 seminarians of a college in Penang.
Based on news reports, we have pieced together the facts of the case.
On Tuesday, 31 March, the 24 played football together, within the fenced and secured grounds of the Catholic college in which they all live.
A resident of a nearby apartment noticed them playing. He informed the police that they were violating a movement control order prohibition against assembling for the purposes of sports. The police came and arrested the seminarians.
On Thursday, 2 April, the police brought the 24 to court. One photo we have sighted is said to be of three of the seminarians. The three are in handcuffs, chained to each other.
We do not know what transpired at the police station on Tuesday. We do not know if they were detained overnight, we do not know if they posted bail to avoid detention.
We focus on three significant things we know. First, they were charged. Second, they pleaded guilty. Third, they were given a novel sentence.
How do they spread the disease?
First, the 24 were charged
A decision to charge against a law must be based on the purpose of the law. The purpose of the regulation under which the 24 were charged is implicit in its title: Prevention and Control of Infectious Diseases [Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) Regulations 2020].
When people who live together play together, do they spread disease?
If my family and I play a doubles match of table tennis within the grounds of my house, do we spread disease?
The answer to the above two questions is no. If not, every one of us, even family members, must live in isolation: a most severe punishment.
The 24 should never have been charged. They could have been advised to stop exercising in public, as it sets a bad example.
Or, they could have been issued with a “compound” notice/fine – such as for traffic offences. If they even need to be charged in court, the police and deputy public prosecutor could have done so after the current pandemic situation ends.
They could have been given police bail pending investigations until after the movement control order for charges to be levelled against them.
Issuing compound notices would avoid crowding in police stations, cells and courts. Crowds are a clear and present danger in pandemic situations – which is why the movement control order eliminates crowds by mandating social distancing.
Second, the 24 pleaded guilty
We wish they had pleaded not guilty, like Dr Ong Hean Teik whom we wrote about in an earlier statement. We wish they had stood up against plainly bad use of the law. However, we respect the right of every accused person to decide how to plead.
Third, the 24 were given a novel sentence
As we said above, we think the 24 should not have been charged. But they were. And, they pleaded guilty. Therefore, the magistrate had to pronounce a punishment (sentence).
We think the magistrate should have fined them a nominal sum, say RM50 per person. Their “crime” is, after all, victimless.
We do not know what options were presented to the magistrate by defence counsel. All we know is that they were given a novel sentence.
The magistrate sentenced them to do three hours of community service on weekdays for three months, under the supervision of a parole officer, as provided for in the Offenders Compulsory Attendance Act 1954.
In our view, the sentence of over 200 hours of work, not counting travel time, is excessive. Furthermore, it will put the 24 in environments which will expose them to disease unlike the confined grounds of their college.
The case is closed, but the lessons must be instantly learned by the government, especially enforcement officers, the police and the courts.
The purpose of a law must be kept in mind when deciding whether to exercise the powers it confers. The police must not handcuff and chain cooperative persons who have not been found guilty of any crime.
Judges must be willing to award nominal sentences. Edict recognises that we are in uncharted territory.
Enforcement officers are being stretched. They must be given options other than arrest and detention of offenders – options such as compounding offences.
Let it also be noted that Edict supports stringent actions against aggressors like the woman who allegedly kicked, shouted and spat at the police in Petaling Jaya on Tuesday. Public servants must be respected, honoured and defended.
3 April 2020
Khalid Mohd Ismath is executive director for Eliminating Deaths and Abuse in Custody Together (Edict)