Suhakam Uncovers Slew Of Human Rights Violations From Covid Lockdowns

Suhakam’s 2020 report says it’s “generally counterproductive” to use criminal law to enforce public health measures for infectious disease outbreaks. “Many individual rights have been affected, with substantial losses”, due to the 2020 MCO during Covid.

KUALA LUMPUR, June 2 – The Human Rights Commission of Malaysia (Suhakam) has revealed a series of alarming human rights violations arising from Covid-19 lockdown measures in 2020, according to its annual report.

The national human rights body’s 2020 annual report dedicated an entire chapter to the impact of the Movement Control Order (MCO) in 2020 that was implemented to prevent and control the spread of Covid-19. Suhakam’s findings revealed several areas where human rights were compromised during this period of the three-year pandemic.

One of the major concerns highlighted by Suhakam was the use of criminal law and incarceration as a means to enforce public health measures. The report argued that such an approach was counterproductive and raised issues of equality and access to justice.

“Using criminal law to enforce public health measures was generally counterproductive. This was because overzealous enforcement of criminal laws forced individuals already fearing arrests and stigma, such as undocumented migrants, to hide from seeking health testing and treatment,” said Suhakam in its report.

The report also raised concerns about the arrest and detention of MCO offenders and migrants. Suhakam questioned the legitimacy of on-the-spot arrests during roadblocks and patrols, stating that such arrests were not lawful as the offence was not an arrestable offence. 

The commission suggested that the action taken against offenders should be in the form of summons rather than immediate arrest.

“Although offences under the MCO Regulations are compoundable by virtue of Act 342, their legality may still be subject to judicial oversight. Issuing an excessive compound to more vulnerable MCO offenders may also raise questions of equality. Only the courts have the inherent power to hear criminal matters and review executive action in these circumstances,” the report stated.

Suhakam’s report was focused on the nationwide MCO beginning March 18, 2020, until the relaxation of the lockdown by end September 2020. The MCO was implemented under the Prevention and Control of Infectious Diseases Act 1988 (Act 342) and Police Act 1967.

MCO violators were subject to fines of up to RM1,000 and/ or jailed up to six months.

Access to justice and effective remedies for victims and survivors of rights violations during the MCO was another area of concern highlighted by Suhakam. The report noted delays and backlogs in the administration of justice, legislature, and human rights protection, as these were not listed as essential services under the MCO regulations. This hindered the timely provision of legal remedies for those affected.

“The judiciary played an important role in upholding the rule of law, addressing human rights abuses, and providing access to remedies, especially amid the executive government’s exercise of emergency or extraordinary powers,” it stated.

The report also noted that domestic violence cases surged to more than 25 per cent during the MCO. Suhakam pointed out that limited access to temporary shelters and the reliance on criminal investigations and court-issued protection orders under the Domestic Violence Act 1994 further compounded the problem.

Based on its findings, Suhakam put forward several recommendations to address the human rights violations during Covid-19 lockdowns. These included ensuring accountability for rights violations, conducting a judicial review of the National Security Council’s (NSC) role in managing Covid-19 responses, reevaluating the use of criminal law and custodial punishment as a public health response, implementing multi-stakeholder policies for prison reforms, and coordinating legal aid programmes to improve access to justice and remedies.

“The National Security Council’s constitutionally challenged exercise of extraordinary powers to enforce Act 342 and Covid-19 official responses in Malaysia cannot be normalised and should stand judicial scrutiny. Many individual rights have been affected, with substantial losses, following the enforcement of the MCO,” Suhakam said.

“The effectiveness and efficiency of criminal law and custodial punishment in preventing and controlling infectious diseases in Malaysia and migrant workers and undocumented migrants, should be reassessed. 

“This evaluation should inform the development of holistic and more inclusive measures to respond to future outbreaks, with minimum impact on civil rights.”

Vulnerable Groups Had Difficulty Accessing Information From MOH, Media Censorship Prevented Free Flow of ‘Critical’ Covid Information

Suhakam’s 2020 annual report also addressed the impact of Covid-19 on freedom of speech. While misinformation and disinformation during the pandemic led to an increase in stigma and discrimination against specific individuals and groups, the country also had to deal with reports of false cures and distribution of government aid, further complicating the situation.

The Quick Response Team, established under the Malaysian Communications and Multimedia Commission (MCMC), has been monitoring and verifying viral news related to Covid-19, with authorities opening 274 investigation papers on alleged fake news, as of November 2020. 

However, Suhakam warned that measures to combat fake news should not infringe upon the legitimate exercise of the right to freedom of expression, protected by the Federal Constitution of Malaysia and the Universal Declaration of Human Rights (UDHR).

“In the effort to suppress the creation and spread of fake news, it is important for the government to ensure that measures do not trample on the legitimate exercise of the right to freedom of expression that is protected by both Article 10 of the Federal Constitution of Malaysia and Article 19 of the UDHR). 

“As such, Suhakam underscores that the right to freedom of expression may be restricted but only as provided by law and strictly necessary and proportionate to achieve legitimate aims, including public health, public order, and morality,” the report noted.

Prior to the outbreak of Covid-19, Malaysia had already experienced restrictions on free speech and access to information, often enforced through censorship and criminal penalties under Section 233 of the Communications and Multimedia Act (CMA) 1998 (Act 588) and Section 505(b) of the Penal Code, Suhakam noted. 

The legality of Section 233 of the CMA has been questioned as it criminalises online speech even if it is intended to merely “annoy,” leading to its use against human rights defenders. Additionally, Section 505(b) of the Penal Code criminalises any statement, report, or rumour that is likely to cause public fear or alarm, or offend “public tranquillity.”

“Under this provision, the truth of the statement is deemed irrelevant, meaning that even accurate reporting may be considered offensive if it disturbs ‘public tranquillity.’

“Censorship and criminal sanctions have heightened the fear among the media, journalists and the public in enabling free flow of Covid-19 critical information,” Suhakam added.

Suhakam’s observations on freedom of speech and information during the Covid pandemic also included challenges, such as limited accessibility of information provided by the Ministry of Health (MOH) for vulnerable groups due to language barriers and lack of access to media and the internet. 

The human rights commission outlined a series of recommendations aimed at safeguarding freedom of speech and improving access to reliable information.

One of the key recommendations was for senior political leaders and influential figures to lead by example and refrain from engaging in disinformation campaigns, spreading misinformation, gender stereotyping, or promoting intolerance and hatred towards any national, racial, or religious groups, including migrants and refugees. 

“Influential figures responsible for the most dangerous forms of these expressions should be held accountable,” Suhakam stated.

To make reliable information on Covid-19 more accessible, the government should engage social influencers and community leaders. The importance of reaching vulnerable groups such as persons with disabilities (PWD), indigenous peoples, rural communities, migrant workers, and refugees, was emphasised.

The information should be tailored to address the specific needs of each community, considering factors such as native language, internet accessibility, and literacy levels.

Suhakam also called for legislative reforms to restore the balance between freedom of speech and restrictions imposed by existing laws. The government is urged to undertake overdue reforms by amending the Communications and Multimedia Act 1998 and repealing the Sedition Act 1948 (Act 15). The focus of these reforms should be on enacting clearly defined and proportionate laws that regulate expression. Restrictions should only be applied in limited and exceptional circumstances to achieve legitimate objectives.

The report further recommended the adoption of federal-level legislation on freedom of information. This recommendation follows the lead of state laws in Penang and Selangor and aims to ensure access to public information throughout Malaysia. 

“To this end, the Official Secrets Act 1972 (Act 88) and the Whistleblower Protection Act 2010 (Act 711) should also be amended and calls to reinstate the repealed Anti-Fake News Act 2018 (Act 803) should be resisted,” Suhakam stated.

Suhakam also suggested leveraging business and human rights to promote digital and media literacy, disseminate reliable information on Covid-19, combat hate speech, and address misinformation. The government is urged to collaborate with private social media and tech companies in these efforts.

“In turn, these private companies should work with the government to respect human rights under the UN Guiding Principles on Business and Human Rights,” the report read.

Suhakam’s 2020 report was tabled in the Dewan Rakyat last May 25. It is scheduled to be debated in the House next Tuesday.

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