Hafiz Zubir & Co.

THE LEGAL UNCERTAINTIES IN THE SURGE OF ARRESTS FROM DISOBEYING THE MOVEMENT CONTROL ORDER. WHAT NOW?

THE LEGAL UNCERTAINTIES IN THE SURGE OF ARRESTS FROM DISOBEYING THE MOVEMENT CONTROL ORDER

The outbreak of Covid-19 in Malaysia has been unprecedented. The Movement Control Order was imposed in order to implement the social distancing policy but it is not safe from the uncertainties that comes with it. For most of the general public, people are unsure of the legal issues that have recently sprung out from the enforcement of the MCO. Most notably the thousands of arrests made in the recent weeks that came from people being charged with violating the Movement Control Order.

First and foremost, it’s important for us to understand the essential law that allows the government to impose the MCO in the first place. The MCO was imposed by virtue of the Prevention and Control of Infectious Disease Act 1988 (PCIDA) specifically section 11(2) of the Act which allows the government to make regulations pertaining the prevention and control of the infectious disease. Any MCO violators would can be fined a maximum amount of RM 1,000 or imprisoned for 6 months or both.

Since the strings of arrests ranging to the thousands, the most concerning problems are the uncertainties of the legal protection for the MCO violators. Reported news of people being arrested without warrants and sent to jail along with the new issue of overcrowding jails.  Section 2 of the Criminal Procedure Code established the seizable offences (arrest without warrants) and non-seizable offences (arrest with warrants). This begs the question whether or not MCO violators can only be arrested with warrants or without?

The First Schedule of the CPC has provided clarification for offences against other laws than the Penal Code (In this regard, offences under the MCO Regulations) where it states that the police shall not arrest a person without a warrant for offences punishable with imprisonment under three years. Therefore, simply put police officers cannot arrest MCO violators without a warrant since it is only punishable with six months imprisonment. Instead, the police should issue bail and summon the MCO violators to attend court to be charged.

The uncertainties take into factor when there are alternative charges that can be imposed on the MCO violators. It is reasonable for the MCO violators to be charged for the offence directly under the Regulations however there are no laws that restrict the police from arresting the violators for one charge and later charge him/her for an alternative charge. Which brings forth the issue of the police in arresting these violators without warrants. Such alternative charges are those offences described Section 269, 270, and 271 of the Penal Code. Which is similar to the action of violating the MCO yet the offences described in Section 269 and 270 does not require a warrant for arrest under the Criminal Procedure Code. Section 269 describes:-

Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.

In other alternatives, section 186 and/or 187 of the Penal Code allows for police to arrest these violators without warrants under the offence of obstruction of police and omission to assist the police when bound by law to give assistance. The problem with this regard is that PCIDA also have its own law on the offence of obstruction of a public servant which is Section 22. Since this offence is an offence outside of the realm of Penal Code, by virtue of the First Schedule it is not a seizable offence. Yet it has been reported that police are charging both Section 186 of the Penal Code and Section 22 of the PCIDA concurrently. These alternatives provide the police with loopholes to arrest these violators without warrants as long as the charges are seizable offences and later frame a different charge in court.

At this juncture, these uncertainties remain unresolved until the Court finally decides the proper legal standard operating procedures. However all is not lost, it is vital that you know your rights that will help you upon being arrested by the police. We generally advise that you consult a lawyer as early as possible, such as, as soon as the police contact you to have an interview with you at the police station, or to give your statement for investigation. Certainly, you or your relatives should consult a lawyer upon arrest. It is very crucial that you know your rights and what to say or do. It is equally important to know what not to say or do. Having the right advice at the right time can have a very significant impact on the outcome of the investigations, charge and trial.

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