Police officers check vehicles at a roadblock to ensure that people abide by the movement control order in downtown Kuala Lumpur, Malaysia, March 19, 2020.  © 2020 AP Photo

(Bangkok) – Malaysian authorities should stop jailing violators of the country’s movement control orders, which places all detainees, prison staff, and society at greater risk of Covid-19, Human Rights Watch said today. The government should instead use the newly created facilities for lockdown violators to help reduce the overcrowding in its prison system.

Malaysian authorities have arrested more than 15,000 people for contravening the movement control orders put in place on March 18, 2020 to control the spread of Covid-19. Initially the authorities sent alleged violators to jail, but later shifted to on-the-spot fines after the director-general of the Prison Department objected, raising concerns that prison overcrowding already made social distancing “impossible.” But on April 15, the government again shifted tack, and Senior Minister Ismail Sabri Yaacob announced the government would criminally prosecute those violating the control orders, and convert 13 police academies into detention centers.

“Jailing people for disobeying movement control orders is counter-productive to reducing the spread of the coronavirus,” said Phil Robertson, deputy Asia director at Human Rights Watch. “The Malaysian authorities should understand that protecting the country’s entire population from Covid-19 means reducing its crowded prison population, not putting more people behind bars.”

Since mid-April, police have arrested hundreds of people for breaching the movement control orders and detained them in police lockups. While the courts sentenced some with fines or requirements to perform community service, many others received jail sentences ranging from two days to several months. Those who cannot pay the fines have also been imprisoned. Forty-one Myanmar nationals arrested for having a party spent six days in a police lock-up before being fined and transferred to a crowded immigration detention center. A university student was sentenced to seven days in jail and a fine of RM1000 (US$230) for leaving her house to take a cake to her boyfriend. She faces an additional two months in jail if she fails to pay the fine.

Thus far, Malaysia has confirmed almost 5,700 cases of Covid-19 and 96 deaths. International guidance says the most important approach for detention centers to prevent transmission is to impose “social distancing,” defined as allowing two meters of separation at all times among detainees and staff, including during meals and within cells. It is also critically important to isolate people at high risk, those testing positive or with symptoms consistent with Covid-19, and their close contacts. However, such measures are not feasible in Malaysia’s overcrowded prisons and detention centers.

Countries around the world have already experienced Covid-19 outbreaks among prison populations. On March 25, the United Nations Subcommittee on the Prevention of Torture said governments should “reduce prison populations and other detention populations wherever possible,” taking full account of non-custodial measures provided for in the UN Standard Minimum Rules for Non-custodial Measures, known as the Tokyo Rules. The UN high commissioner for human rights, Michelle Bachelet, has also called on governments to reduce detainee populations as part of overall efforts to contain the Covid-19 pandemic.

Malaysia, which has not announced any jail or prison releases to reduce overcrowding, should immediately take steps to do so, Human Rights Watch said. The government should provide alternatives to detention for inmates held for low-level, nonviolent offenses, giving priority to people in the following at risk categories:

  • People with higher health risks, such as older people, pregnant women and girls, and people with disabilities, that may place them at greater risk of Covid-19 complications and people with compromised immunity or chronic conditions such as heart disease, diabetes, lung disease, and HIV. Health assessments should determine whether their health can be protected if they remain in detention. Prison officials should also take into account factors like time served, the gravity of the crime, and the risk a person’s release would represent to the public;
  • People with caregiving responsibilities accused or convicted of nonviolent crimes, including women and girls incarcerated with their children and prisoners who are primary caregivers to children;
  • People convicted of crimes who are close to the completion of their sentences; and
  • Other people whose continued detention is unnecessary or disproportionate.
People held in pretrial detention whose profile fits these categories and are suspected of committing low-level, non-violent crimes should also be released on bail or other similar arrangements.

By taking these steps, Malaysia could then use the additional detention facilities created for movement control order violators to reduce overcrowding in its existing prisons, Human Rights Watch said. Doing so will enable the government to better protect those already in custody, prison staff, and the surrounding community.

“By flouting Malaysia’s movement control order, people are putting others at unnecessary risk and should face consequences, but jailing them is not the answer,” Robertson said. “The Malaysian government should be moving quickly to reduce and disperse its jail and prison populations to prevent a Covid-19 outbreak that would have disastrous results, both inside the prison system and outside of it.”