Can enforcement officers use force against MCO offenders?

No: unless it is to achieve the ‘3 Mechanisms’ to prevent the spread of the contagion. And any force used must be reasonable and proportionate. Can offenders be caned, or made to do squats? What do you think?

The answer depends very much on what force they used, and for what purposes.

Enforcement officers are there to ensure that the people are not a danger to themselves or to others. But how far can they go?

[1].  April 03, in Kunak, Sabah

On that day, a group of people were publicly caned by an enforcement officer: see here.

Sabah police chief Zaini Jass, while promising to ‘investigate’ the officer, apparently made light of it. He said that while the man’s action had been ‘unwarranted, …there was no intention to abuse.’

He commented that ‘the five youths were lucky as they were not detained but only given a ‘moral lesson’.

Apparently, according to the report, Zaini noted that,

‘[From] a moral point of view, it was to teach the public, especially the young, to abide by the MCO’.

Is this right?

To answer that question it will be a good idea to look at the parent Act, the Prevention and Control of Infectious Diseases 1988.1‘PCIDA’

[2]  Has the Minister declared the Covid-19 Virus contagion as an ‘infectious disease’ under the PCIDA?

On April 05, several senior lawyers questioned why the 2020 Regulations made under the PCIDA have yet to declare the Covid-19 virus pandemic as an ‘infectious’ disease: see here.

On the day the Government introduced the Movement Control Order on March 18, I brought this to the nation’s attention: and also suggested a solution – see here.

The Government still has not done so.

The legal consequence of this is serious – but that is another story for another day.

[3].  Minister’s power to declare an area as ‘infected Local Area’

Next, where there is an outbreak of an infectious disease in any particular area – or if the Minister (presumably the Health Minister) thinks that any particular areas are threatened with an epidemic of any infectious disease – the Minister must first ‘declare’ such an area to be an infected local area.2under  section 11

[4].  We saw earlier the Minister has power to authorise any person to help him – ‘authorised officers’

This includes healthcare professionals or personnel, police officers, members of the armed forces, and other enforcement officers: e.g. immigration, customs or JPJ officers.

For each of these departments to act under the powers of the Minister, they need to be so declared.3section 3, PCIDA

[5].  Two sections in PCIDA grant powers to use ‘reasonable force’

These are sections 11 and 15.

[6].  Section 11: can use force to ‘control or prevent the spread of the disease’

By the powers under the PCIDA the Minister may make regulations under the Act – but for what purpose?

The Minister may determine what measures are necessary to ‘control’ or’ prevent’ the spread of the disease in that local area. One such step is the MCO.4This is in section 11(3) of the PCIDA

While the MCO is continuing, an authorised officer may ‘direct’ citizens living in that area to subject themselves to (a) to treatment or immunisation; (b) to isolation observation or surveillance; or (c) any other measure the enforcement officer ‘considers necessary’ to ‘control the disease’.

These are the ‘section 11(3) ‘mechanisms’.

[7].  The Three Mechanisms: 

The Act and the Regulations seek to achieve Three Mechanisms. They are: –

(1). treatment or immunisation,

(2). isolation or surveillance; or

(3). other measures necessary, e.g. social distancing or self-quarantine.5See section 11(3) of the PCIDA

[8].  Reasonable force may be used to achieve the Three Mechanisms of section 11(3)

When an enforcement officer issues instructions to achieve the three aims, and people refuse to obey them – then the enforcement officer may use reasonable force to make them ‘comply with’ any ‘directions issued’– that is to say directions for ‘any measure’

If during the MCO, a police officer does – without a good reason – things outside of these Three Mechanisms, he breaks the law.

[9].  The second power is in section 15: Medical personnel may use reasonable force

Section 15 is enacted for a different purpose.

This provision allows, presumably, a medical officer to ‘direct, or order’ any ‘close contact’ – meaning a person suspected to have been afflicted with the contagious disease – to ‘undergo surveillance observation’.

If that person refuses, then the authorised officer – in this case, a healthcare professional may use necessary force to ensure compliance with his order.

[10].  What was the purpose of the March 18th and April 01 MCOs?

After the outbreak of the coronavirus, the Minister invoked the MCO by a set of new Regulations.

The first came into effect for the duration of March 18 to 31st.6this was under the first of a series of 2020 regulations, which I refer to here as ‘Regulations 2020 (No.1)’  The second set of Regulations were issued to take effect from April 01 to 14th.7Which I refer to here as ‘Regulations 2020 (No.1)’

Under those regulations, the government tried to minimise exposure to the risk of the coronavirus infection.

And so the movement of individuals came to be controlled.

Large gatherings were banned.

Yet it allowed people to go out, at designated times, to purchase food, daily necessities, and medicine. It allowed essential Service personnel almost total freedom.8Regulation 6, 2020 Regulations [No.1]

[11].  Do the Regulations empower enforcement officers to use force?

Although the Act grants the rights to use reasonable force for limited purposes – as we saw earlier – regulation 7 and 11 do not empower anyone – and this includes both enforcement and authorised officers –  to use any force at all.

Regulations 7 and 119The first set of regulations covered March 18 to 31, 2020.  The second set of regulations covered April 01 to 14) merely make it an offence to contravene any of these regulations.

[12].  Every disobedience is not a crime: an offence only takes place when the Three Mechanisms are breached

Just because a person disobeys an enforcement officer does not mean an offence under the Act or the Regulations has taken place. The suspect’s behaviour must breach the Three Mechanisms of the law.

[13]. Ignorant, mulish, often quarrelsome MCO offenders

There may be circumstances in which citizens may disobey, argue, or quarrel with enforcement officers: for examples see here, here, and here.

No one can blame the police for what happened afterwards.

Depending on what the situation is, the law authorises enforcement officers to use ‘reasonable force’ to make citizens comply with ‘the Three Mechanisms’.10See paragraph 7 above

If the enforcement officers think it is proper, or the situation warrants it, those who disobey the Movement Control Order (MCO) may be arrested.

Or the officers may subdue them with reasonable force.

[14].  What is ‘reasonable force’?

The legal concept of ‘reasonable force’ is related to the idea of ‘proportionate force’.

One does not use a hammer to stop an ant.

Suppose a police officer is in the course of carrying out MCO duties.

When told to return home, a citizen turns violent and attacks the police officer.

In those circumstances, the law enforcement officer – or an ‘authorised officer’ –  must use proportionate force to defend himself.

Any physical power used must only be to ensure compliance with the Three Mechanisms.

[15]. Use of responsive force must be ‘modulated’:  but don’t be ridiculous and expect officers to be lily-livered pansies

Again, depending on the ferocity of the attack, an officer’s response must be modulated. This requirement cannot be taken too far.

By the time the officer takes a step-by-step approach, the offender may have escalated the situation to life-threatening levels. An officer can defend himself. He is not guilty of a crime.11Sections 102 and 105 Penal Code

If a man were to quarrel with an officer without threatening force, certainly it will do no good to assault him.

If such a man is a suspected ‘contact’ – a person either infected with the coronavirus or has been in touch with someone who has – and is a danger to himself and others – then enforcement officers can use reasonable force to isolate him.

In each situation, the police need to analyse what could be the best response: after all, they are trained professionals.

Law enforcers and ‘authorised officers’ need not be perfect, only reasonable.12 If any person, law enforcer or otherwise, uses ‘reasonable’ force, the law accepts it as ‘justified in every sense’.(Smith and Hogan, ‘Criminal Law, 11th Ed., David Ormerod, 2005, p.42). No one can sue him for a civil wrong: e.g. for a tort action, which is an action for a civil wrong.  Nor can criminal proceedings be brought against him. On the other hand, if a person uses unnecessary force, he can be sued in a civil court. This is because it is not in fact ‘reasonable in the circumstances’. That does not mean he commits a crime. What is important is, what did he himself believe? Such a person may be excused from criminal liability if he had used ‘reasonable force’ in a situation as he believed them to be’. In Northern Ireland, Kelly, a soldier, shot at a vehicle. When charged, he intended to arrest its occupants. He believed, on reasonable grounds, that they were escaping terrorists. He thought that if they escaped, they who would probably continue to commit terrorist acts. The court held that his use of force was not reasonable to make an arrest. But the court thought it was justified because ‘it was reasonable to prevent a crime’: (Kelly v. Ministry of Defence [1989] NI 341) Since the belief is subjective, even if the situation was opposite to what the accused believed, he would still be convicted. In Dadson (1850) Den. 35, Dadson was a constable. He was employed to watch a copse to stop people from stealing wood from it. The victim, V, stole wood. He was about to make off with it.  Dadson called out, and asked V to stop, but he fled. Having no other means of bringing him to justice, Dadson fired and wounded him in the leg. Dadson was charged with shooting at a with intent to cause him grievous bodily harm. Dadson’s defence was that it was lawful for him to wound an escaping felon. True it was that V had been repeatedly convicted of stealing wood, but Dadson did not know that. How could Dadson believe a thing he had no idea of? He was convicted on that ground: (Dadson (1850) Den. 35.  See also ‘Smith and Hogan, Ibid, p.42).  The United Kingdom Criminal Law Revision Committee explains when the use of force is reasonable: (Cmnd 2659, paragraph 23). The Committee recommended that to be reasonable, even if the use of force had caused harm it needed two qualities: (1). it was necessary to prevent the crime (or make arrest); and (2). One may cause harm to avert the evil of the crime.  But this cannot be taken too far. Even killing will be justifiable to prevent the victim from unlawful killing or grievously injuring someone. A law enforcement officer may arrest a person even if there is a risk of causing harm to the victim: for, if the victim is left at liberty, he may cause greater harm to others: (Smith & Hogan, Ibid, p. 334). The question what amounts to force which is reasonable in the circumstances is one of fact – and not a point of law: (Reference under Section 408A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1of 1975) [1976] 2 All ER 937, at 947, House of Lords, per Lord Diplock).

They need only respond according to the situation.

[16]. Law enforcers are not required to use a jeweller’s scale to measure reasonable force

‘In circumstances of great stress’, said the English judge, Geoffrey Lane J, no reasonable person could ‘measure’ the required minimum degree of force ‘to a nicety’.

A violent and abusive driver was on the road. He was causing a highway obstruction.

Police officers intervened.

They used a considerable degree of force.

Lane ruled it was justified.

He said,

‘[In] the circumstances one did not use jeweller’s scales to measure reasonable force …’. 13Reed v, Wastie [1972] Crim LR 221

[17]. Do not confuse the right to use reasonable force with the right to punish

This is self-evident.

Enforcement is to achieve the Three Mechanisms.

And these mechanisms are there to protect the people from being inflicted with the coronavirus: the Three Mechanisms do not place extra powers in the hands of the enforcers of the law.

[18].  Administering ‘self-help justice’

And so assaulting offenders, canings, or administering corporal punishments, e.g. forcing a person to do ear-holding squats, rolling on the pavements etc., is not only improper, it is positively illegal, and often, a crime in itself.14Sections 349, 350, 351, 352 and 357 of the Penal Code

[19]. Who may determine if a person is an offender – and punish such offenders?

Only the court, and that too only after all the due process and legal formalities are complied with.

The power to punish does not lie in the hands of any enforcement officer.

[20].  What fate befalls all these ‘self-help enforcers’?

Those who take it upon themselves to ‘punish’ MCO offenders make a grave error.

They can be sued for assault.

A victim may lodge a disciplinary complaint against them.

[21].  Try to understand the almost impossible role of law enforcement officers and Authorised Officers

Enforcement and authorised officers need to be treated with respect.

They are at the front lines, exposing themselves to the risk of being infected by the coronavirus.

Confinement stresses the nation.

Tempers flare.

When confronted by irate citizens, confrontational language and behaviour is to be expected – but cannot be dismissed, as it has been done in Sabah.

Obedience to the Three Mechanisms will ease the stress on enforcement officers.

We have much to learn from the Japanese and the South Koreans.

[22].  Three reasons why people still disobey the law: poverty, ignorance or brazen indifference

While the parts of the nation are submerged in battling the virus, all across the nation, daily-wage earners are casting about desperately for a meagre income.

Should not the Ministry of Communications and Multimedia have taken greater steps to inform all and sundry, in all corners of the nation, of the danger of the pandemic, and of the Three Mechanisms, and what steps need to be taken? Has the Ministry done that?

The Minister in charge of the  Ministry of Women, Family and Community Development has the responsibility for ‘social welfare’: she needs to provide for the poorer sections of the nation: destitute children, women, families, the elderly, the infirm, and the homeless.

Before the officer assaulted these men, why were their needs not ascertained, and why were they not assisted by the Minister in charge – or her officers?

If the poor and needy need to get out to get food or medical supplies, what steps are being taken by the Department of Social Welfare to assist them?

[23].  And now back to Kunak, Sabah – since when have we, as a nation, descended to barbarism?

Why assault the poor and needy?

How did the police officer reach the conclusion that a person who disobeys an MCO is a criminal deserving public caning?

Does the PCIDA allow caning?

What do you think?

To preserve the law, its enforcers need to obey it.

And 99.99% of our law enforcers are decent, hard-working people, risking their lives. But it is a minuscule proportion that makes us wonder:

‘Granted that the coronavirus pandemic is fatal, but since when have we, as a nation, descended to barbarism?’

[24].  Be kind ‘the poor in your midst’

A Great Being said:

‘O ye rich ones on earth! The poor in your midst are My trust; guard ye My trust, and be not intent only on your own ease.’ – Bahaullah.15Hidden Words No. 54 (Part-II-Persian)

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