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POLICE AND THE USE OF FORCE DURING MOVEMENT CONTROL ORDER



During this Movement Control Order ("MCO"), we have a Cardiologist went jogging alone, a lady yelled 'idiots' at the police, a group of T20 and expats went exercising in Mont Kiara - all charged in court, or at least arrested by the police. Also, we have news about people going out in pair, more than radius of 10km. Ironically, even our own Prime Minister has been caught doing that when he went for shopping with his wife (read here).


Then, we see Indian police using cane or bamboo batons (also known as 'lathi') to beat people up. We find it funny as first. It serves as an entertainment during this cabin fever MCO. However, things are getting absurd when we see our own police force starting to imitate the same, some police were caught asking civilians to do push up, and some even crossed the line by caning minors who have violated the MCO (watch the video here). For starters, the act of Indian police had already invited some criticism within its country and internationally, and we see no reason why our police should emulate the same (read here). This is not something new for the Indian police to use 'lathi', and the Human Rights Watch used to criticise the abuse made by the Indian police, at least, since 2009 (read here).

Lathis are not regular sticks. The cane is soaked, dried and then oil is applied to it – it goes through a treatment process to make it a deadly weapon. - AFP

And people are starting to over-blame those who violates the MCO and petitioning to ask the judges to put them behind bars. This is wrong, and even the Director General of Prison Department concurs that those MCO violators should not be put behind bars (read here). Prison Department, in their letter to the Chief Registrar of the Federal Court, suggests that those who violated the MCO be allowed to do compulsory social work under the Offenders Compulsory Attendance Act 1954 as punishment instead of sending them to jail.

We need to be clear on this:
Police are the peacemakers. Their job is to enforce the laws in place. 
Lawyers are the gatekeepers. Their job is to ensure the laws are properly enforced.
Judges are the guardians, to guard against injustice.

Everyone has their own role to play and it shall not and cannot be muddled.

Section 11(4) of the Prevention and Control of Infectious Diseases Act 1988 ("PCIDA") grants the ‘authorised officer’ to use force. And the ‘force' certainly shall not include asking people to do push up, let alone beating people up. There are enough cases to interpret this. Plus, police canning people is a form of punishment, which is not the power confer upon the police under any circumstances. Indeed there are some stubborn people, but there are relevant legal procedures in place, use that, and just that. Authorities are advised to engage their wisdom in exercising their discretion. Again, we need to emphasise, yelling at the police is an offence and wrong, but not a heavy offence, and it carries most probably a RM100 fine at the maximum under section 14 of the Minor Offences Act 1955. Running in the park, during this MCO period, is not the same as a murderer or a rapist. If any section that warrants a prison sentence or fine, fine is ought to be imposed. This is a trite law. So, we should stop urging the police to use unauthorised means to curb the public movement, and we shall also stop appealing to the judiciary to send someone to jail for minor offences like we has mentioned above. Law and order is an integral part of a society, even in the time of battling this COVID-19 pandemic, it should not be neglected. As a matter of fact, we are relying on the very law and order to fight this war. For instance, making the law, having essential services only to run, letting armed forced and police to keep people obedient are all founded on the law and order.

Yes, we need to appreciate the police working for us during this hard time, but when they acted outrageous, we need to call them out, before it starts getting out of hand. 

If we exercise our leniency in allowing the police to abuse its power, and the judiciary fails to exercise its role to be the guardian of the law just because we are facing an unprecedented virus, we are subject to a slippery slope.


We might think this is trivial for now, just like what we thought when we first encounter COVID-19. We never foresee the spread and expect the harm it brings. So, if we continue to pay no heed to the imminent danger of the destruction of the law and order, when the virus is gone, it will also ensue. We will then have hard time to restore it to what we once had which is what we much needed. The rule of law shall not be broken, disregarded or turned a blind eye to under whatsoever situation, not even during this global epidemic. It prohibits us to go into unnecessary wars, it stops us to penetrate social order, it limits the clash between the people and the government. It is the core within a civilised and modern society. It is quite surprising that many lawyers also fell for that public bandwagon of fully blaming those MCO violators, too. If the doctors are the last line of defence against viruses; lawyers are the last line of defence against injustice. We learned the lesson of underestimating the elephant in the room before it starts stomping around. The price is high and we cannot afford to have history to repeat itself.


* 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

cklew@haemelew.com

+603-8408 9189 (Ext: 102)

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