How to reduce prison overcrowding and curb spread of Covid-19

Malaysia’s prisons and detention centres remain a breeding ground for the transmission of Covid-19. On Nov 3, 2020, health director-general Dr Noor Hisham Abdullah reported a total number of 1,054 new Covid-19 cases in the country, out of which 310 originated in prison clusters and temporary detention centres alone, translating to roughly 29.4% of all local cases.

These statistics exhibit the severity of the plight in Malaysian prisons, with the root of the issue stemming from the fact that these facilities are currently dangerously overcrowded, making social distancing virtually impossible.

On Oct 6, prisons director-general Zulkifli Omar recognised the problem of overcrowding in state prisons and announced that the department will move to grant a release on licence to minor offenders sentenced to less than a year of imprisonment, with less than three months left to serve.

According to the Prisons Department’s statistics as of Oct 5, there are approximately 11,018 inmates eligible for release under this procedure.

If implemented promptly, the scheme would undoubtedly be a welcome mechanism in tackling the overpopulation crisis in local prisons.

However, at the time of writing, there have been no reports of any one prisoner being released through this system. Efforts to contact the prison headquarters to clarify this matter were unsuccessful.

To stem Covid-19 transmission among inmates, the department also decided to move minor drug-related inmates to temporary prison facilities at National Service Training Programme centres.

According to department statistics, a total of 2,800 minor drug offenders were to be transferred. While we recognise that this move will ease overpopulation in certain prisons to some degree, we stress that this measure alone will not be sufficient in curbing the transmission of Covid-19, given the magnitude of the problem at hand.

At present, a large proportion of detainees represent foreign nationals being held for various offences under the Immigration Act. A representative from the Semenyih Immigration Detention Centre confirmed that the facility is currently operating at overcapacity, with an influx of foreigners being detained and remanded into custody.

When asked about the source of this overpopulation dilemma, the representative cited international Covid-19 restrictions as being the main challenge, stating that the Malaysian Immigration Department was currently facing difficulty in remitting these foreigners back to their home countries.

The statement raises the crucial question: in times of an unprecedented health crisis such as this, why were these foreign nationals marshalled, arrested and taken into custody in the first place?

This stagnancy of foreign prisoners is only made worse by the imposition of corporal punishment.

Malaysia’s Immigration Act imposes six strokes of the cane, fines and up to five years’ imprisonment for people who are deemed to be in Malaysia irregularly. A growing number of offenders are currently being held in detention not only to serve out their sentences; many are also forced to remain in custody well past their prescribed sentence solely to await the enforcement of corporal punishment, namely caning.

The imposition of this punitive penalty drastically increases the time inmates are being held in Malaysian prisons, thus further contributing to the problem of overcrowding.

During an inspection of the Semenyih detention camp in 2003, Suhakam observed that authorities had to delay the deportation of migrants who had been caned in order to allow scars to heal.

In unprecedented times such as this, where overcrowding in prisons is a recognised contributor to the spread of Covid-19, we urge the authorities to suspend the enforcement of corporal punishment on minor offenders, and in particular cease to implement canning where the offences involved are merely administrative in nature (i.e. immigration offences).

Under international law, immigration detention is only meant to be used as a last resort and where it is necessary, reasonable, and proportionate to a legitimate government objective. In the present global public health crisis, migration-related detention and subsequent judicial corporal punishment is not only unreasonable, but simply unjustifiable.

In view of this, the Malaysian government should urgently amend legislation to treat immigration violations as administrative offences rather than crimes punishable by prison or corporal punishment, and refocus their efforts on the repatriation of these individuals.

Recommendations

1. Parole

The relevant authorities may consider releasing eligible inmates on parole under Part IVA 46A of the Prisons Act 1995.

Parolees are required to report to a parole officer at such time and date as their parole officer may from time to time direct and to reside at a residence specified in their parole order, among other restrictive conditions. Violation of parole conditions may result in the parolee being remitted back into custody. This mechanism of the law would enable prisons to decrease their populations and ease overcrowding, but in a manner which is controlled and measured.

2. Pardon

Neighbouring Southeast Asian jurisdictions have recognised the risks posed by overcrowded prisons, and moved to stem the transmission of Covid-19 by reducing prison populations. Indonesia started the process of releasing thousands of minor offenders as early back as April, in a nation-wide effort to curb the spread of the virus. Myanmar on the other hand announced, also in April, that as part of its New Year amnesty it would be freeing nearly 25,000 prisoners – more than quarter of its prisons’ population.

We recommend that the Malaysian authorities work towards a parallel goal in this jurisdiction. Under Malaysian law, a pardon may be petitioned and sought for individual offenders in certain circumstances.

Regulation 113 of the Prisons Regulations 2000 states that, in petitioning for a royal pardon, an Officer-in-Charge may bring any special circumstance to the notice of the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri, should such circumstances arise.

The petition shall then be heard by the Pardons Board of Malaysia. It is highly arguable that the circumstances brought about by Covid-19 pandemic constitute such “special circumstances”, which would warrant the involvement and consideration of the Pardons Board. We recommend that this power hence be exercised to grant a “blanket” pardon’ for minor offenders with a less than one year sentence, to reduce the number of inmates being held in custody.

An umbrella pardon would also be particularly functional in releasing a significant number of individuals detained under the Immigration Act, as the practicalities of parole and release-on-license would not apply to these foreigners, who may neither be managed nor monitored once returned to their jurisdictions.

3. Bail for remand prisoners

We recognise that there are significant numbers of individuals currently being held in remand while awaiting trial and their detention further burden facilities that are already overcrowded and on the verge of collapse.

We propose that the prosecution work to remit individuals who were remanded without any offer for bail back to court, to allow these detainees to put forth bail applications.

We implore the judiciary, upon hearing these applications, to consider the exceptional circumstances posed by Covid-19 and be more permissive in granting bail where possible, in order to alleviate the stress placed on our prison system.

For future detainees due to be placed into remand, we recommend that these individuals be granted bail at first instance, where reasonable, in order to keep prison populations in check for as long as the pandemic persists.

A reasonable amount for bail should be applied, with the proportionate aim of securing the accused attendance to court at a later date, and no more.

4. MCO offenders

As a separate contingent issue, as far back as April, the prisons director-general called upon the judiciary to stop jailing violators of the MCO to tackle overcrowding in prisons.

However, a significant number of people are still being detained every day for MCO violation which further contributes to an ever increasing number of detainees being packed into already overcrowded facilities.

Should the authorities continue to arrest, charge and detain MCO offenders during this pandemic, it would contradict and undo all other efforts in controlling prison populations.

We thus encourage the authorities to consider suspending the sentences of these individuals until after the pandemic, a discretionary legal mechanism provided by the Criminal Procedure Code (CPC).

We also urge the judiciary to reconsider discontinuing the imposition of prison sentences for new MCO offenders, to avoid further exacerbating the issue of overcrowding. Instead, compounding the offence may be a viable option to sentencing.

5. Detention of migrant children

Alarmingly, on Nov 4, the home ministry confirmed that 756 children are currently being detained at local immigration detention centres as of Oct 26. Out of this number, 326 are being detained in the absence of their guardians.

The detention of these minors are not only in direct contravention of Malaysia’s obligations under the Convention on the Rights of the Child, but such action also incontestably contributes to the already severe overcrowding issue here in Malaysia.

We therefore implore the Malaysian government to release these migrant children immediately and into the care of parents, guardians or the appropriate welfare authorities. Such a measure would not only ensure Malaysia’s compliance with international children rights standards, but also act as a crucial part of the nation’s fight against the spread of Covid-19.

We urge the Malaysian government to consider taking action to introduce some system of relief, be it in the form of compassionate release, delaying sentencing, granting parole for minor offenders, and/or granting a blanket pardon for non-violent offenders at high risk, such as the elderly, as well as those with severe illnesses.

Immediate action is necessary as we must bear in mind that although prisoners are required to serve their prescribed punishment under the law, they should not be left to die from Covid-19.

Zaid Malek is coordinator at Lawyers for Liberty.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.