The Malaysian Bar is disturbed by accounts of excessive sentences and cases of disparity in sentencing between ordinary people and those with influence, in relation to persons who have violated the movement control order.
We acknowledge that the range of sentences handed down may well be within the ambit of the law, but the power of the court to hand down sentences must be exercised judiciously in order to avoid any travesty of justice.
The Malaysian Bar urges the court to temper justice with compassion, especially when we are not dealing with instances of violent crime. Reformative considerations must be foremost in the mind of the court when handing down sentences to those who violate the movement control order.
Section 25 of the Prevention and Control of Infectious Diseases Act 1988 gives the director general of health the discretion to offer compounds for any offence under this act or any regulations made under this act. We urge the director general of health to exercise this discretion conferred by law.
The government has stated that since the beginning of the movement control order until 25 April 2020, a total of 20,011 people have been arrested for violating the movement control order. It is not clear how many of these people have been imprisoned.
Incarcerating someone in a crowded place will make it more difficult to contain the transmission of the Covid-19 virus. While violating the movement control order should not be taken lightly, sending violators to jail is a cure that is worse than the disease.
Putting people in jail may send a deterrent message to the public, but it adds to the problem of Covid-19 transmissions in courts and prisons.
The courts must administer justice with compassion and give due consideration to all mitigating factors that gave rise to the offence. It is justice that we must pursue and not simply punishment.
Salim Bashir is president of the Malaysian Bar
This piece dated 28 April 2020 is reproduced from here and has been edited for style only.