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EDICT’s response to the Attorney General’s media statement

This statement is EDICT’s response to allegations made against us by Attorney General (AG) Tan Sri Idrus Harun in his statement dated 27 April 2020, posted on the website of the Attorney General’s Chambers (AGC).

While drafting this statement, three news reports entered our inboxes. The first is titled “Deputy health minister, Perak exco fined RM1,000 each for breaching MCO” (link). The second is titled “Single mum jailed 30 days for breaching MCO wants sentence revised” (link). The third is titled “Terengganu MB off the hook for MCO violation, says cops” (link) – this report adds that the “No Further Action” decision was made by the Public Prosecutor (AGC).

We also write against the background of another news report, titled “Over 20,000 arrested for violating MCO since 18 March” (link). The report also says: on 25 April alone, 505 people were remanded and 72 were released on police bail.

Do those reports show that the equality principle enshrined in Article 8 of our Federal Constitution is being adhered to and upheld?

Now, we come to the AG’s statement.

First, we note that the AG has responded to our 9 April statement, not to our open letter to him on 4 April, which we referenced in our 9 April statement. In our open letter, we asked him to address six specific concerns. His statement does not address those concerns.

Second, we note that he says we claimed the AGC “has failed to issue any guidelines to prosecutors to ensure even-handed implementation and enforcement of the Movement Control Order (MCO).” We deny that we made such a claim.

What we wrote is: “Many have asked us [four days after our open letter] whether the AG has issued any guidelines. We have not been contacted by the AG. We have not received any feedback which indicates any change in the process of enforcement. We conclude that to-date, the AG has not addressed the concerns we raised.”

Third, he refers to internal mechanisms. He makes no reference to any public responses on his part to address the public outcry over various aspects of the implementation of the MCO – unlike the Chief Justice, the two Chief Judges and the Director General of Prisons.

Fourth, he says “it must be remembered that some matters, like remands and sentencing, are not powers within the purview therefore control of the Attorney General.”

We respectfully point out that we did not say DPPs make remand applications in MCO cases. As provided for in Section 117 of the Criminal Procedure Code, it is police officers who most often make remand applications. Our point is that these cases do not need remand.

The Federal Court agrees with us. We note that it’s website says: “The purpose of remand is to give more time to the police to complete the investigation and to decide whether there is enough evidence to charge the suspect for the suspected offence” (link). Is it not obvious that remand is not necessary for compoundable offences?

Since the Investigation Papers come to the AGC for prosecutions, we think it only reasonable to expect – 40 days into the MCO – that the AG will issue directives or guidelines to the police not to apply for remand in such cases. This is especially warranted as support for the social distancing policies which the authorities have identified as critical for curbing the pandemic. It is also public knowledge that, even in normal times, detainees are not subjected to medical examinations prior to incarceration in lockups.

We also ask why some should be remanded and others not – for example, why was there no remand for the Deputy Health Minister and the Perak Exco member in the cases we mentioned at the outset?

Fifth, the AG did not touch on the case of the shop assistant whose prosecution under section 233 of the MCMC Act we mentioned in our statement.

What was the urgency of prosecuting her during the MCO? This question is especially pertinent since – as we also pointed out – according to a Parliamentary reply, in the 12 months till October 2019, 153 cases were investigated under section 233, but none were prosecuted.

Do the “guidelines” the AG refers to in his statement address the issue of non-MCO prosecutions? He does not say.

Sixth, in our statement we also referred to a DPP making comments on social media that caning by the police of MCO suspects is supported by law. Do the “guidelines” the AG refers to in his statement address the issue of DPPs making such comments on social media? He does not say.

Seventh, we note that the AG says “… DPPs, as well as PDRM and the Courts, have been working hard under novel conditions while potentially exposing themselves to the risk of infection.” We would add that they – and others such as defence lawyers – are unnecessarily exposed because of seeming inadequacies in the “guidelines” which result in pressing for court appearances and jail sentences when other options are available.

Eighth, we remind the AG that in our open letter we recognized that we are in uncharted territory. We offered collaboration. We even encouraged prosecutions for flagrant breaches of the MCO and of people who abuse enforcement officers.

Ninth, in our statement (9 April) we explicitly stated that we feared there would be erosion of public confidence in the administration of justice if the concerns we raised are not addressed. Our purpose is always to be constructive.

Tenth, we stress that we are very conscious of our duty as citizens to cooperate with those who hold public office. We abhor conjecture and diatribe. We deny that our statement contained any elements of conjecture, diatribe or lack of grounding in facts. We are adamant that any statement we make must be fact-based. We are always willing to support what we say with evidence/sources when requested.

We end with a further reminder. Thousands are being arrested and remanded for compoundable offences. The Federal Constitution endows the AG with great powers which he can exercise to calm the public in this pandemic. With the greatest of respect, we say that he must do so and be seen to be doing so.


(picture: Terengganu Chief Minister and Former Terengganu Chief Minister with their supporters break the MCO)


EDICT

29 April 2020

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