The Attorney General Must Rein In Prosecutors
On 4 April, EDICT wrote an open letter to Attorney General (AG) of Malaysia, Tan Sri Idrus Harun.
In the letter, we laid out concerns with the enforcement of the Movement Control Order (MCO) by the police and by prosecutors. We asked the AG to issue directions to temper justice with mercy and to assure even-handed implementation.
The letter was widely disseminated via social networks. It was also reported in local and international media. Four days have passed. Many have asked us 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.
We are however delighted that Chief Judge of Malaya, Justice Tan Sri Azahar Mohamed, and Chief Judge of Sabah and Sarawak, Justice Datuk Abang Iskandar Abang Hashim, have directed High Courts to expedite hearings of revisions (appeals) of all MCO-related sentences.
We are also delighted that the Chief Justice, Tan Sri Tengku Maimun Tuan Mat, has urged judicial officers to consider the risk of transmission of COVID-19 in prisons when handing down sentences.
EDICT also takes this opportunity to congratulate Prisons Department director-general Datuk Seri Zulkifli Omar who wrote to the Chief Justice expressing his concerns about overcrowding of prisons. We celebrate and support his call for offenders to be sentenced to community service.
As we said at the outset, we are not aware of any actions by the AG which we can similarly affirm.
Sadly, we have to bring to his attention two matters which signal the urgent need for him to issue guidelines to abate disrepute brought upon the justice system by misguided MCO enforcement.
We note the case of 20 year old shop assistant Nursahira Mohd Mizuar, who, on 31 March, began serving a prison sentence. A sessions court judge sentenced her to three months in prison (in addition to a fine) after she, unrepresented by counsel, pleaded guilty to “making and initiating offensive communications” and “insulting the police” on social media.
According to news reports, the youth was venting the anger she felt over a COVID-19 operation in Batu Menunggul, Pendang, Alor Star.
The youth was charged under Section 233 (1) (a) of the Communications and Multimedia Act.
According to a Parliamentary reply, in the 12 months till October 2019, 153 cases were investigated under section 233, but none were prosecuted. This statistic makes the jail sentence imposed upon Nursahira, and the judge’s refusal to postpone it pending appeal, more remarkable.
EDICT has also noted that, a Deputy Public Prosecutor, on social media, has defended and goaded on policemen who take it upon themselves to punish MCO offenders through caning and other means. He claims to base his instigation upon the Prevention and Control of Infectious Diseases (PICID) Act – which he reads without regard for the Constitution and other laws such as the Police Act!
EDICT reminds the Attorney General that the Federal Constitution imbues and entrusts him with immense power under Article 145, partly in order that excesses such as we are seeing now will be curbed.
EDICT urges the Attorney General to use those powers to abate any disrepute which may have been brought upon our justice system by misguided MCO implementation, overzealous prosecutors and interpretation of the PCID Act without regard for its context.
EDICT trusts that the Attorney General will recognize the need to avert any possible erosion of public confidence in our justice system. We hope he will spring into immediate action to uphold the Rule of Law and ensure that the spirit of the Federal Constitution is adhered to by all parties.
9 April 2020