Open letter from EDICT to the Attorney General of Malaysia, Tan Sri Idrus bin Harun
Rationalize enforcement of the COVID-19 Movement Control Order
We are sure that when you accepted your appointment as Attorney General, you did not imagine you would have to provide legal leadership to the nation during a pandemic.
During a pandemic, major limits on movements must be enforced, rapidly, with little time for training. Cases of excessive use of force, resistance to rightful authority and unequal treatment will be legion. The AG must monitor and respond to developments by providing guidance.
In the spirit of collaboration, we offer you some analysis and suggestions.
Yesterday, Defence Minister Datuk Seri Ismail Sabri Yakub said that as of 2 April 2020, 4,189 people have been arrested and 1,449 of them have been charged for violating the Movement Control Order (MCO) which came into effect on 18 March 2020 (The Star).
There have been many news reports of persons being arrested, brought to police stations and subsequently charged and sentenced in courts.
Today is day 18 of the MCO gazetted by your chambers. The MCO classifies many actions as offences. Those who have been charged include children and adults. They comprise various strata of our society, ranging from expatriates in Mont Kiara to teenagers in Kelantan.
We have seen photos and videos of persons arrested for MCO offences – principally for being in public places outside of prescribed hours and for attending assemblies for prohibited purposes such as recreation.
People are herded together in contravention of the social distancing rule of leaving one metre of space between individuals and the screening rule that persons who cough or sneeze must wear masks. Enforcers have (publicly) caned some persons and have made others do squats.
Alleged MCO violators are handcuffed and chained together – unlike politicians such as Najib Tun Razak and Tengku Adnan Tengku Mansor when they are brought to courts, albeit on other charges.
It has also been widely reported that Prime Minister Tan Sri Muhyiddin Yassin and Minister Hajjah Zuraida Kamaruddin have violated the MCO, but have not been charged. (The PM went shopping with his wife; the Minister participated in a public assembly.)
A 61-year-old cardiologist was brought by police to a courtroom in handcuffs. Students at a college in Penang were handcuffed and chained together when they were brought to a courtroom.
Prosecutors mercilessly press for high fines and magistrates award them.
Poor fishermen with families to support have been fined RM1,000. Some are in prison because they could not afford to pay the imposed fines.
The police are unreasonable in setting bail. A Form Six student, with no prior convictions, who, out of hunger, went to purchase a packet of instant noodles, is languishing in Marang prison because his family cannot raise the bail which was set at RM800.
There is also what appears to be selective policing and prosecution for breaching the MCO.
A doctor who attempted to reason with enforcement officers was charged for an MCO violation 11 days after the alleged infraction, while Minister Zuraida who participated in a public assembly is allowed to roam freely, just like PM Muhyiddin who went shopping with his wife.
Your chambers has been diligent in gazetting various laws and notices. These have enabled the implementation of pandemic control measures. Yet, it appears that you have not issued clear directives and guidelines to the police and prosecutors on how the measures should be enforced.
The COVID-19 pandemic has put our nation in uncharted territory. There is mounting evidence that the government, through enforcement officers, is using the crisis as an opportunity to exercise coercive power.
There are also reports of persons who flagrantly violate the MCO and even reports of abuse, by the public, of police and other enforcement officers.
In these difficult times, we ask you to exercise your powers under Article 145 of the Federal Constitution to ensure proportionality and uniformity in the implementation of the MCO regulations. We ask you to uphold Article 8, which makes all persons equal under the law. We ask that you:
Direct the police to be mindful of the social distancing rules and therefore avoid marshalling people to police stations for filing of charges and to courts for prosecution.
Direct the police and prosecutors to continue prosecution of persons who flagrantly abuse the police and other enforcement officers.
Direct the police to investigate and file charges against enforcement officers who take actions which amount to humiliation or punishment.
Direct the police and prosecutors to defer prosecutions of alleged MCO offenders till the pandemic is over – so as not to further burden the already crowded lockups and prisons.
Direct prosecutors not to press for maximum penalties for first-time offenders.
Direct the police to treat all persons who are charged alike. No cooperative accused person should be handcuffed or chained when brought to court.
We urge you to fearlessly exercise your constitutional power to curb actual and potential abuse of power.
We continue to wish you well as you seek to fulfil the unique and onerous responsibility which you have chosen to bear.