The AG Needs To Step Up To The Plate And Clarify Matters
Updated: Apr 13, 2020
EDICT is alarmed by a news report yesterday that Defence Minister Ismail Sabri, speaking for the National Security Council (NSC), said “Those who breach the MCO this time will be arrested and charged in court under Section 24 of the Prevention and Control of Infectious Diseases (PCID) Act 1988.”
Ismail is also reported to have said “We will leave it to the police to decide if there will be any more compounds.” According to him, the police decided to press charges rather than compound offences because more people are violating the Movement Control Order (MCO).
People breach the MCO for a variety of reasons. Some we note do so out of sheer desperation to find some ways and means to feed their families as a result of being out of work.
EDICT is alarmed by Ismail’s statements for several reasons.
First, as we have pointed out previously, there are many cases where a warning or advice would have sufficed, rather than a compound or arrest.
Second, in some cases the courts have handed down prison sentences of three months and, in other cases people have gone to jail because they could not afford the fines imposed – and families go hungry while breadwinners are incarcerated.
Third, the prisons department has warned that a major COVID-19 crisis could develop in prisons due to further overcrowding of our already crowded prisons.
Fourth, the Chief Justice of Malaya, the Chief Judge of Sabah and Sarawak and a retired senior judge have asked the judiciary to be sensitive to overcrowding and excessive sentencing.
Fifth, the provision of the law which Ismail referred to stipulates fine and imprisonment as sentence. There is no limit set on the fine. The imprisonment is up to two years, for a first offence. Our Deputy Public Prosecutors press for maximum sentences, and our magistrates and sessions court judges often agree with them. It seems highly likely that more MCO offenders will be imprisoned, and for longer periods – unless the Attorney General provides clear guidance.
We are in a pandemic. Movement restrictions must be imposed, and have been imposed. Some do not comply. Many must be warned and if necessary, some must be punished.
However, the pandemic does not mean we must ignore well-established justice practices. One of those practices is that mitigating factors must be taken into consideration when sentencing. It is also well-established that sending thousands to prison now will worsen the effects of the pandemic.
We call upon the NSC to listen to good medical advice, prison officers, serving and past members of the judiciary and the general public.
We further put on record our alarm over another over-reaction by the police: Muhd Izwan, a youth, was arrested yesterday, allegedly for venting his frustration in these difficult days. He is said to have posted comments on social media directed at “PM.” People should be arrested and investigated for actual crimes committed. Never for their thoughts nor for any perceived crimes.
These are difficult times and we are in uncharted territory. But we must never lose sight of the fact that our character as a nation has been to counsel before we press criminal charges. The pandemic must not be allowed to change our national character.
The government, through the NSC, should urge the police to set an example of mercy and level thinking. The police must, even in a pandemic, uphold the spirit of the Federal Constitution and adhere to its guarantees. They must not use the law as an instrument of blunt force. The Government should never "leave it to the police". The government needs to set out clear policies and issue directives to the police.
We once again remind the Attorney General that at times like these, the nation and its citizenry look up to him for guidance and confidence that the spirit of the law as enshrined in the Federal Constitution is complied with.
We therefore urge the Attorney General of Malaysia to step up and make his voice heard, exercise the powers entrusted to him under Article 145 of the Federal Constitution and rein in the police and prosecutors.