There are voices within the legal fraternity doubting the police’s power in arresting all Movement Control Order (“MCO”) violators without warrants.
It is settled that our current MCO is a product of the Prevention and Control of Infectious Diseases Act 1988 (“PCIDA”). The government has invoked section 11(2) of the PCIDA to make regulations where it gives rise to the all three (3) phases of MCO starting from 18 March 2020 to 28 April 2020.
The relevant regulations were namely (phase 1 - from 18 March to 31 March):
Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 [P.U. (A) 87/2020];
Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020[P.U. (A) 91/2020]; and
Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) Regulations 2020 [P.U. (A) 99/2020].While for phase 2 - from April 1 to April 14, the following laws were in force:
Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) Order 2020 [P.U. (A) 98/2020];
Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.2) Regulations 2020 [P.U.(A) 109/2020];
Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.2) (Amendment) Regulations 2020 [P.U. (A) 112/2020]; and
Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) (No. 2) Regulations 2020 [P.U. (A) 111/2020].And presently, for phase 3 - from 15 April until 28 April, the following laws are in force:
Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 2) Order 2020 [P.U. (A) 116/2020];
Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 3) Regulations 2020 [P.U. (A) 117/2020]; and
Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) (No. 3) Regulations 2020 [P.U. (A) 118/2020];(collectively, all of the above-mentioned laws shall be referred to as “relevant Regulations”).
Where the relevant Regulations provide that the MCO violators can be fined not exceeding the amount of RM1,000.00, or imprisonment for a term not more than 6 months, or to both.
Section 2 of the Criminal Procedure Code (“CPC”) expressly distinguishes the seizable offence (arrest without warrant) and non-seizable offence (arrest with warrant). Meaning to say, police can arrest one without warrant if the police suspect he/she committed a seizable offence, and vice versa.
It begs the question, is violating MCO a seizable offence?
First Schedule of the CPC shed some lights on this. Although the offence and penalty provided by the relevant Regulations are within the ambit of none other than PCIDA and PCIDA only, and the First Schedule of the CPC mainly concerned about offences codified under the Penal Code, the last section of the First Schedule of the CPC provides for ‘offences against laws other than Penal Code’, where it states police shall not arrest without warrant for any offences punishable with imprisonment for less than 3 years.
In other words, breaking the MCO is not a seizable offence and police cannot arrest one without warrant.
However, there is a trick in this.
Section 269, 270 and 271 of the Penal Code provide for similar nature of offences to the one made in the relevant Regulations, and the CPC allows the police to arrest without warrant for offences under section 269 and 270 of the Penal Code.
Furthermore, in some cases whereby the public obstruct the police in carrying their duties would apparently in breach of section 186 and/or section 187 of the Penal Code, and section 186 is a seizable offence.
This is a loophole in law. The police could arrest the public under seizable offences, but the charges framed in the Court later might be non-seizable offences.
The other school of thought would be that the burden for the prosecutor to prove under sections 269, 270, and 271 of the Penal Code is higher than those under the relevant Regulations. Hence the change in the section happened.
As it is always the prosecutor’s discretion in deciding which charge to press against the accused, the section used by the police during arrest often differs from the charge later. This is a common occurrence in Malaysia.
Although most of the MCO violators, if not all, are charged under the relevant Regulations in place instead of the Penal Code, there is no law to prohibit the police to reasonably suspect and arrest the public under one section/Act but charge him/her under another.
It seems obvious that the police are circumventing this loophole in the current MCO situation. It remains open for the legal fraternity to argue whether this is an abuse of law or a wrongful arrest. This can only be tested in the Court of Law.
Stay at home, stay healthy!
* This article serves as a general information only, and shall not in any way be treated as a legal advice. If you require any legal advice or further information, please contact us.
Written by:
CK Lew
+603-8408 9189 (Ext: 102)