Since the implementation of the Movement Control Order (MCO) on March 18, strict measures have been put in place to ensure the public comply with what have been gazetted in the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 to contain the spread of the infectious Covid-19 pandemic.
The Regulations stipulates that “any person who contravenes any provision of these Regulations commits an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.” In times of economic hardship with many businesses halting operations, along with the crash of stock and oil markets, as well as a potential jail term that further adds to the overcrowding of prisons, concerns are raised whether the punishment is too harsh or untimely.
During a global health pandemic, while it may seem comforting to some to have strict criminal sanctions in place, as a response to a public health crisis, it is important to recognise the effectiveness of these responses. The penalties, especially contemplating imprisonment during such a time of “social-distancing” is harsh and excessive.
It is good to note that the Malaysian government has now considered refraining from imposing custodial prison sentences. Sending people to holding centres and prison could increase the chances of transmission of inmates, people in lock-ups. At this time, States must instead be considering releasing people from pre-trial detention, prisons and to stop arrests and detention for minor criminal offences. It is important to reconsider the role of prisons within Malaysia, and the effectiveness of imprisonment as a sentence. While it may, for some, provide some form of public retribution or redress for wrongs committed, how much impact will it make in providing for the reform and rehabilitation to the inmates, and reintegration into their communities?Another aspect to consider when assessing the criminal penalties is that they must, to comply with the requirement of international human rights law, pursue a legitimate aim, be necessary and proportionate and for a limited period of time. There must also be a connection between these penalties and the aim, namely: to decrease transmission of Covid-19 and realise the right to health of individuals and society at large. Such penalties must also be based on scientifically sound evidence and reviewed regularly.
As it stands, offenders are to pay RM1,000 fines with a ticket, but failure to pay a fine will place a person at risk of a much higher penalty or prison sentence in the event the person is charged in court. In my opinion is making the breach of MCO a criminal wrong, in general is excessive and will have the impact of stigmatising the illness and feeding into the fear of transmission.
We must remember that the Courts have a discretion in meting out sentences for non-compliance of the MCO regulations.
So it can impose a fine, or send the offender to prison. Separately, the police can also issue compounds instead of charging the offenders. So this gives wide discretion to the Courts and the authorities to deal with offenders. We hope that the authorities can exercise this discretion wisely; a one size fits all approach would not be suitable. An affluent jogger caught for flouting the MCO cannot be treated in the same way as a person who goes out to find food for his family, for example. For the latter, a nominal sum can be imposed merely as a deterrent.
While complying with the MCO is important to tackle the Covid-19 pandemic, any arrest, detention and criminal prosecution should be a last resort as these measures may not be the necessary and proportionate means of enforcement, particularly for minor offences where detention can intensify the public health risks we already face. However, lately the authorities seem to have taken a less harsh approach by mostly compounding the offence i.e. issuing a fine of RM1,000 instead of criminal prosecution. I would certainly urge the authorities to use more discretion in ensuring compliance with the MCO, such as more public education and where necessary, issuing a warning. These are difficult times and there are many communities who will not be able to even pay the fine, and as a result would end up in prison or cause them more hardship.
While I certainly don’t encourage a harsh response by arrest and detention, by the Inspector-General of Police’s own admission the compliance rate with the MCO has been extremely high, up to 99 percent. Hence the authorities must always review their approach daily, to ensure that they enforce the MCO in a balanced and fair manner. If they can ensure compliance without arrest and detention, all the better. A fine may be more appropriate but they should also look into the background and socio-economic factors of the violators as we don’t want a situation where they are punished excessively. Times are hard on everyone.