Malaysiakini:
Comment | Victimless MCO crimes: The case of 24 Catholic seminarians
by Khalid Mohd Ismath
NGO Eliminating Deaths and Abuse in Custody Together (Edict) notes with concern the charge of movement control order (MCO) violation brought by the government against 24 students (seminarians) of a college in Penang.
Based on news reports, we have pieced together the facts of the case.
On Tuesday, March 31, the 24 played football together, within the fenced and secured grounds of the Catholic college in which they all live.
A resident of a nearby apartment noticed them playing. He informed the police that they were violating an MCO prohibition against assembling for purposes of sports. The police came and arrested the seminarians.
On Thursday, April 2, the police brought the 24 to court. One photo we have sighted is said to be of three of the seminarians. The three are in handcuffs, chained to each other.
We do not know what transpired at the police station on Tuesday. We do not know if they were detained overnight, we do not know if they posted bail to avoid detention.
We focus on three significant things we know. First, they were charged. Second, they pleaded guilty. Third, they were given a novel sentence.
How do they spread the disease?
First, the 24 were charged.
A decision to charge against a law must be based on the purpose of the law. The purpose of the regulation under which the 24 were charged is implicit in its title: Prevention and Control of Infectious Diseases (Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) Regulations 2020).
When people who live together play together, do they spread disease?
If my family and I play a doubles match of table tennis within the compound of my house, do we spread disease?
The answer to the above two questions is “no.” If not, every one of us, even family members, must live in isolation: a most severe punishment.
The 24 should never have been charged. They could have been advised to stop exercising in public, as it sets a bad example.
Or, they could have been issued with a compound notice/fine – such as for traffic offences. If they even need to be charged in court, the police and deputy public prosecutor can do so after the current pandemic situation ends.
They could have been given police bail pending investigations until after the MCO for charges to be levelled against them.
Issuing compounds would avoid crowding in police stations, lockups and courts. Crowds are a clear and present danger in pandemic situations – which is why the MCO eliminates crowds by mandating social distancing.
Second, the 24 pleaded guilty.
We wish they had pleaded not guilty, like Dr Ong Hean Teik whom we wrote about in an earlier statement. We wish they had stood up against plainly bad use of the law. However, we respect the right of every accused person to decide how to plead.
'They should have been fined'
Third, the 24 were given a novel sentence.
As we said above, we think the 24 should not have been charged. But they were. And, they pleaded guilty. Therefore, the magistrate had to pronounce a punishment (sentence).
We think the magistrate should have fined them a nominal sum, say RM50 per person. Their “crime” is, after all, victimless.
We do not know what options were presented to the magistrate by defence counsel. All we know is that they were given a novel sentence.
The magistrate sentenced them to do three hours of community service on weekdays for three months, under the supervision of a parole officer, as provided for in the Offenders Compulsory Attendance Act 1954.
In our view, the sentence of over 200 hours of work, not counting travel time, is excessive. Furthermore, it will put the 24 in environments which will expose them to disease unlike the confined grounds of their college.
The case is closed, but the lessons must be instantly learned by the government, especially enforcement officers, the police and the courts.
The purpose of a law must be kept in mind when deciding whether to exercise the powers it confers. The police must not handcuff and chain cooperative persons who have not been found guilty of any crime.
Judges must be willing to award nominal sentences. Edict recognises that we are in uncharted territory.
Enforcement officers are being stretched. They must be given options other than arrest and detention of offenders – options such as compounding offences.
Let it also be noted that Edict supports stringent actions against aggressors like the woman who allegedly kicked, shouted and spat at the police in PJ on Tuesday. Public servants must be respected, honoured and defended.
KHALID MOHD ISMATH is executive director for Eliminating Deaths and Abuse in Custody Together (Edict)
Based on news reports, we have pieced together the facts of the case.
On Tuesday, March 31, the 24 played football together, within the fenced and secured grounds of the Catholic college in which they all live.
A resident of a nearby apartment noticed them playing. He informed the police that they were violating an MCO prohibition against assembling for purposes of sports. The police came and arrested the seminarians.
On Thursday, April 2, the police brought the 24 to court. One photo we have sighted is said to be of three of the seminarians. The three are in handcuffs, chained to each other.
We do not know what transpired at the police station on Tuesday. We do not know if they were detained overnight, we do not know if they posted bail to avoid detention.
We focus on three significant things we know. First, they were charged. Second, they pleaded guilty. Third, they were given a novel sentence.
How do they spread the disease?
First, the 24 were charged.
A decision to charge against a law must be based on the purpose of the law. The purpose of the regulation under which the 24 were charged is implicit in its title: Prevention and Control of Infectious Diseases (Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) Regulations 2020).
When people who live together play together, do they spread disease?
If my family and I play a doubles match of table tennis within the compound of my house, do we spread disease?
The answer to the above two questions is “no.” If not, every one of us, even family members, must live in isolation: a most severe punishment.
The 24 should never have been charged. They could have been advised to stop exercising in public, as it sets a bad example.
Or, they could have been issued with a compound notice/fine – such as for traffic offences. If they even need to be charged in court, the police and deputy public prosecutor can do so after the current pandemic situation ends.
They could have been given police bail pending investigations until after the MCO for charges to be levelled against them.
Issuing compounds would avoid crowding in police stations, lockups and courts. Crowds are a clear and present danger in pandemic situations – which is why the MCO eliminates crowds by mandating social distancing.
Second, the 24 pleaded guilty.
We wish they had pleaded not guilty, like Dr Ong Hean Teik whom we wrote about in an earlier statement. We wish they had stood up against plainly bad use of the law. However, we respect the right of every accused person to decide how to plead.
'They should have been fined'
Third, the 24 were given a novel sentence.
As we said above, we think the 24 should not have been charged. But they were. And, they pleaded guilty. Therefore, the magistrate had to pronounce a punishment (sentence).
We think the magistrate should have fined them a nominal sum, say RM50 per person. Their “crime” is, after all, victimless.
We do not know what options were presented to the magistrate by defence counsel. All we know is that they were given a novel sentence.
The magistrate sentenced them to do three hours of community service on weekdays for three months, under the supervision of a parole officer, as provided for in the Offenders Compulsory Attendance Act 1954.
In our view, the sentence of over 200 hours of work, not counting travel time, is excessive. Furthermore, it will put the 24 in environments which will expose them to disease unlike the confined grounds of their college.
The case is closed, but the lessons must be instantly learned by the government, especially enforcement officers, the police and the courts.
The purpose of a law must be kept in mind when deciding whether to exercise the powers it confers. The police must not handcuff and chain cooperative persons who have not been found guilty of any crime.
Judges must be willing to award nominal sentences. Edict recognises that we are in uncharted territory.
Enforcement officers are being stretched. They must be given options other than arrest and detention of offenders – options such as compounding offences.
Let it also be noted that Edict supports stringent actions against aggressors like the woman who allegedly kicked, shouted and spat at the police in PJ on Tuesday. Public servants must be respected, honoured and defended.
KHALID MOHD ISMATH is executive director for Eliminating Deaths and Abuse in Custody Together (Edict)
What is good for the goose is also good for the gander. No one is exempt, just because he's a Catholic Indian.
ReplyDeletenothing to do with exemption per se - read the circumstances of the case.
Deleteavoid racial or religious insinuations
How many tabligh attendees who ran away and hid from the authorities and subsequently caught for COV19 tested were charged under the Prevention and Control of Infectious Diseases (Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) Regulations 2020)?
ReplyDeleteSame argument for Dr Ong, my TANK MAN, jogging alone amongst the daffodils in the Taman. How was he spreading any virus?
ReplyDeleteThe seminarians were exercising and keeping fit and should they ever catch the virus (touch wood) their strong lungs will ensure they won't need any ventilator.
The MCO "law" is vague and open to interpretation, gazetted by "a government Malaysians did not vote for" and never passed by Parliament, hence the MCO itself is suspect and can be challenged in a court of law.
The Bishop of Penang Sebastian has apologised for the behaviour of the 24 seminarians. Even though they did not deserve to be charged and sentenced. They did not spread any virus, only set a bad example.
ReplyDeleteGood for them, take responsibility and confess your sins, like what Jesus taught. Turn the Other Cheek....
In South Korea the leader of the super spreader church kneeled, bowed and apologised in public...so humble...
https://www.thestar.com.my/news/regional/2020/03/02/south-korean-sect-leader-apologises-over-coronavirus-spread
Has anyone taken responsibility for the Seri Petaling tabligh attendees who ran away, went into hiding and avoided testing for Covid-19 apologised yet? There have been so many positive cases, I think half of all positive cases in the country are related to this tabligh.
Anyone from PAS, Jakim, Jais, Minister of Religion, mufti, imam, Hadi Awang, Zakar Naik, Doraemon.....anyone take responsibility...??? All gone quiet...?
i practice distancing even at home, this is to protect our family. i am not sure if football enhance risk or not, i think so. penalise the boy as a warning to the rest is fine, no need to insult or shame them.
ReplyDeleteTalking about injustice, Australian PM Scott Morrisson is telling international students to balik kampung.....
ReplyDeleteWhat is our Minister for Education / Higher Education going to do...??
QUOTE
As coronavirus spreads, 'it's time to go home' Scott Morrison tells visitors and international students
By Jano Gibson and Alexis Moran
Prime Minister Scott Morrison has told visitor visa holders and international students the time has come to return to their home countries as the coronavirus pandemic continues.
Mr Morrison said Australia had to focus on its own citizens and residents. He said there would be opportunities for visa holders who have critical skills that can help assist in the coronavirus crisis
There are more than 500,000 international students in Australia, many have lost their casual and part-time jobs due to COVID-19 restrictions
After meeting with the National Cabinet on Friday, Mr Morrison said those in Australia who are here under various visa arrangements and cannot support themselves that "there is the alternative for them to return to their home countries".
"Australia must focus on its citizens and its residents to ensure that we can maximise the economic supports that we have," he said.
UNQUOTE