COMMENT | Implement 'arrest now, prosecute later' during MCO

COMMENT | Malaysians Against Death Penalty and Torture (Madpet) is appalled with the mitigation of those detained for breaching the movement control order (MCO).

People are asked to stay home, not move around, not gather in numbers even for sports, and to practice social distancing. However, the police and enforcement officers are breaking all that is intended by the MCO by detaining violators and charging them in court. 

Breach of MCO intentions

When a person is found to have breached the MCO, the police should only arrest, get the particulars and release them on police bail without a surety, just on personal bond. 

Later, after the Covid-19 threat has passed, the police can order them to the police station for investigation and proceed with charging them in court, if needed. 

If the police detain them, then it is certainly a violation of the very intention of the MCO – social distancing, among others. The suspects, the arresting and transporting officers, all those in the police station, are put at risk of infection. Lockups hold many other detainees, which are usually overcrowded.

When a person is arrested and detained, then the lawyer(s) will have to come to represent the suspect. If the person is going to be charged, the suspect is transported to court with others, placed in holding cells with other suspects, and then moved to court. There will also be judges, the court staff, lawyers and others who will come close to one another. 

Thus, the risk of those involved in this process being infected with Covid-19 is high and against what the government intended when they put the MCO in place.

Malaysia has gazetted the Prevention And Control Of Infectious Diseases (Compounding Of Offences) (Amendment) (No 2) Regulations 2020 [PU(A) 111/2020], which makes 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 MCO-breakers can be offered a compound, and if you pay the compound offered, that will be the end of it. If not, you will be charged in court, tried and sentenced according to the law.

No one above the law

The compound process is an administrative, not a judicial process, in that the police will 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 have lost income and jobs. 

However, if an employer/company breaches the MCO 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 its owners, among others, as per the penalty prescribed in the MCO regulations.

A person, who was ordered to self-quarantine, or someone in an area classified as "Red" or "Orange", where the risk of infecting others is much higher, also may need a more deterrent sentence.

As such, Madpet advocates arrest and immediate release, where further investigation and prosecution will happen only after the end of the MCO and/or the Covid-19 threat.

We also call on the police to arrest but not detain other criminal suspects, 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 Abdul Razak, former deputy prime minister Ahmad Zahid Hamidi and many others.

Madpet also calls for the police to practice social distancing in lockups, and test the suspects to make sure they are not infected with Covid-19.

We concur with the Prison Department that any new detainees should be placed in quarantine for at least 14 days, and should be tested before being allowed to join the existing already overcrowded prison population. 

During this period when Malaysia is facing the Covid-19 threat, normal procedures and practices of administration of criminal justice should be abandoned in favour of the observance of the intention of the MCO.

Justice will still be served, as all who breached the law, but only later.

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