MCO violations do not warrant arrest, say lawyers

Police say they will be coming down harder on those who violate the movement control order.

PETALING JAYA: Lawyers are urging the police to only issue compounds to those who breach the movement control order (MCO), saying the regulations under which the restrictions are enforced do not allow them to make arrests.

Speaking to FMT, Muhammad Rafique Rashid Ali said the Criminal Procedure Code states that arrests can only be made if a seizable offence is punishable by death or imprisonment exceeding six months.

Under the Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020 governing the MCO, offenders can only be jailed for up to six months or fined RM1,000.

“Violation of the regulations does not allow police to make arrests as it is only a summons case,” Rafique said.

He added that any arrest and detention by police for investigation would be a serious breach of liberty as provided for under Article 5(1) of the Federal Constitution.

This provision states that no person shall be deprived of his life or personal liberty except in accordance with law.

Rafique was responding to news that the police would begin to take sterner action against MCO violators under Phase 3 of the MCO which began yesterday.

“We will not issue compounds anymore. Violators will be detained and prosecuted,” Bukit Aman CID director Huzir Mohamed had said in a press conference.

He added that 14,922 people had been arrested in the first two phases of the MCO, with 5,830 taken to court.

Lawyer KA Ramu said offenders should be issued tickets and given time to pay the compound.

If they settled the compound, he said, they would be admitting to committing the offence.

“They should only be hauled up and charged in court later,” he said, adding that only the court had the power to determine the length of jail term.

Logistically, he added, it would be impossible for the police to produce offenders in court on the same day as investigations would need to be held.

GK Ganeson

Lawyer GK Ganeson said issuing compounds to offenders should be the priority of the police and any other public health officer authorised by the health director-general.

“The aim of the Prevention and Control of Infectious Diseases Act 1988 is to prevent people from being a danger to themselves or others. It does not treat them like common criminals.

“So social distancing principles rule out remand or imprisonment. That leaves us with a fine,” he said.

He suggested that the health minister draw up a range of punishments for different levels of offences.

“A RM1,000 fine for first-time offenders, especially the poor, will appear oppressive,” he said.

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