KUALA LUMPUR: A case by case risk assessment needs to be done by law enforcers when receiving a complaint or when coming across violators of the Movement Control Order (MCO).
The G25 (Group of 25 Eminent Malays) said the enforcement of the MCO must be made in line with its ultimate goal of reducing the spread of the Covid-19 infection without unnecessarily burdening the people or police.
Applauding law enforcement officers for their efforts in keeping violators in check and taking action against those who flout the MCO, it said the order was not meant to be a punitive measure, as such, each case must be handled with some compassion and sensitivity.
“Exceptions need to be made from the beginning so that those with valid reasons are not stopped or charged, thus saving valuable resources and time for both the public and the police,” they said in a statement today.
Citing an example, the G25 said the elderly should be able to go out in pairs when buying groceries as some may need assistance, whether to drive or carry the groceries.
A measure of compassion is needed in implementing the MCO while at the same time keeping everyone safe, the group said.
“Whilst we commend the good work of enforcement officers in enforcing the MCO, which at times could be a trying task, in view of the fact that the current generation of Malaysians are not used to such a drastic (but necessary) law as the MCO, nevertheless, we, respectfully, would like to remind the enforcement officers not to be overzealous but to respect Article 5 of the Federal Constitution (no person shall be deprived of his life or liberty save in accordance with the law) and the rule of law in the enforcement of the MCO."
The group said according to their observation, a number of cases saw enforcement officers arresting violators of the MCO and placing them under custody as though they committed an arrestable offence.
The group said under the Criminal Procedure Code (CPC) a violation of the MCO was a "non seizable offence", meaning that it was not an arrestable offence. This meant that enforcement officers could not arrest the alleged violator on the spot.
Under the CPC, a violation of the MCO was only a summons case offence, which meant that the legal proceeding against the alleged violator could only be by way of a summons.
The enforcement officer concerned must apply to a Magistrate for a summons to be issued against the alleged violator.
Touching on the power to arrest a person on the spot under section 186 of the Penal Code for the offence of obstructing the enforcement officer in the discharge of his function, the G25 noted that in a vast majority of the cases, it was a mere case of alleged violation of the MCO per se, and not a case of obstructing the enforcement officer in enforcing the MCO.
“Hence it was not lawful for the enforcement officer to have exercised the power of arrest against the alleged violator,” they said.
On the courts meting out sentences, the group said some of the sentences were excessive and disproportionate for violating the MCO.
They cited the cases involving two men in Sungai Siput, Perak who were arrested for fishing and initially given a 3 months jail sentence, which was revoked and replaced with 3 months of community service.
Another case cited by the group involved 24 seminarians of the General College in Penang who had been self-isolating in their private compound even before the MCO but were given 3 months of community service after they were arrested for playing football within the college's grounds.
“Judges need to look at the entire situation which led to the violation to determine whether the arrest was just, and if so, to give the appropriate and proportionate sentence. Their role during this MCO is to ensure that justice prevails and the poor and innocent do not end up as criminals to victimless ‘crimes’," they said.
The G25 added that it supported the statement by the Director General of Prisons who urged for community service instead of imprisonment as a way to reduce the risk of overcrowding in jails and thus reducing the spread of Covid-19 to current inmates and prison guards.
“We are also encouraged to hear that Bukit Aman’s Criminal Investigation Department (CID) Director has said that the police are prepared to issue compound fines instead of charging violators in court and are now only awaiting the official directive to implement it. We call on the government to issue this directive as soon as possible,” it said.
The group also expressed their agreemnt for those who purposely flout the MCO to be held accountable, however, in the interest of justice and public safety, the MCO violators need not be sent to jail.