In the first two phases of Malaysia’s Movement Control Order (MCO) which ran from 18th March to 12th April 2020, nearly 15,000 arrests had been made and 5,830 people charged in court for violating the MCO. Many more have been arrested and charged since.

These overall numbers reflect the authorities’ seriousness in restricting movement and flattening the Covid-19 infection curve. However, the individual stories behind these numbers, particularly those of lower income earners, have renewed debate on the question of equality, fairness, and proportionality in sentencing, and for good reason.

Should affordability determine whether MCO offenders go to jail?

The issue of fair punishment emerged not long after enforcement began when stories of uneven treatment on MCO violators began to surface. Following public outcry and criticism from civil society, the authorities appeared to respond. From the discretionary advice and warnings ‘system’ in Phase 1, MCO enforcement shifted to the non-discretionary but sweeping practice of automatic RM1,000 compound notices in Phase 2, and to the ‘leave it to the courts’ procedure of arrest-and-charge in Phase 3. 

These shifts in practice should have resulted in a greater sense of fairness in MCO enforcement, but some of today’s sentencing examples undermine such a notion. At the time of this writing, the latest case involved a single mother who was jailed for a seemingly minor infraction of the MCO while other similar offenders were fined RM1,000. Those initially sentenced with fines do not necessarily have short ordeals either; several reports have come out from Terengganu, Selangor, and Kelantan where MCO offenders were jailed as they couldn’t afford the RM1,000 fine or bail amount.

In one sense, this is not news. The grim reality is that Malaysian prisons are mostly populated by the poor. A 2005 paper on the population of Alor Setar prison found that those who had an income of RM499 and below prior to their conviction made up the biggest group of prisoners. A 2014 report by Khazanah Research Institute revealed that most inmates of Kajang prison came from families with low income and lived in low-cost housing. Young lives are not spared; data from 2004 showed that 71% of juveniles in prisons came from families with an income of below RM1,000. 

Nevertheless, because of the unprecedented reach and socioeconomic impact of the MCO, the issue of sentencing for MCO violations have attracted more public empathy and attention than arguably any other offence in the Penal Code. Among the questions being asked are: is it fair to exact a RM1,000 fine on hungry teens or daily-wage workers compared to affluent Mont Kiara joggers and VIPs? And when an offender can’t afford to pay this amount, is jail time a fair and proportionate alternative punishment for breaking a movement restriction order?

Proportionality of punishment: Type and amount

Legal practitioners and experts have voiced their concerns on MCO sentencing, among them Professor Datuk Salleh Buang who suggested a suspension of sentencing in lieu of sending them straight to prison as well as Mohamed Haniff Khatri Abdulla who called for replacing prison terms with community service. Moreover, Prisons Department director-general Datuk Seri Zulkifli Omar had reportedly signed a letter asking the judiciary to stop sending MCO offenders to jail.

These positions appear to be echoed by the public. In a quick poll by The Centre dated 8th April 2020, only 12% of respondents thought jail sentences are the most appropriate punishment for MCO violations while the majority, 58%, were in support of community service. 

When motive and income background were included into the scenario, nearly 86% of poll respondents agreed that offenders of lower incomes deserve a lighter sentence. 

Apart from replacing jail terms with community service, how might we set a lighter but fair sentence?

Means-based sentencing

Means-based or means-tested sentencing considers a person’s economic capacity in setting penalties, particularly fines. The idea is to scale fines according to income so that the punishment is felt equally heavy by those with higher incomes and those who earn daily wages.

At present, judges and the courts do have some limited discretion in setting fine amounts but research has found that there’s a general lack of means examination before sentencing, which naturally raises the risk of jail time for lower income offenders.

Systems that practice means-based sentencing have been around for nearly a century but the most common model today is known as the ‘day fine’. The day fine is calculated by multiplying a proportion of the offender’s daily income with ‘day units’, or the number of days deemed suitable as a punishment ‘multiplier’ according to the severity of the offence:

Fine amount = proportion of daily wages (gross or disposable) x day units   

The day fine system can be found across Europe and Latin America though the formula as well as the extensiveness of its use varies from one country to another. In Finland, the formula uses half of daily disposable income while in Germany the offender’s full day disposable income is used. The calculation of disposable income also varies from country to country. In terms of day units, both Austria’s and Germany’s Criminal Codes stipulate that between 5 to a maximum of 360 day units can be imposed based on the severity of offence.

What might means-based sentencing in Malaysia look like?

Let’s say there are two MCO offenders, one who earns the minimum wage of RM1,200 a month and another who earns RM10,000 a month. Applying an extremely simple means-test rule of 10% gross wages, the offender earning RM10,000 a month would pay today’s RM1,000 fine while the offender earning minimum wage would pay RM120. (The latter fine amount would be even lower if the means-test rule were based on disposable income rather than gross wages.)

Alternatively, we could apply the day fine system. Based on day fine models in Finland, Germany, and Austria, we came up with a simple ‘fine calculator’ based on half of gross daily wages for illustrative purposes. For a first-time, minor MCO violation, the rate is set to 10 day units, the average practiced in these countries.

Based on these rates, the offender who earns RM1,200 a month would be required to pay a fine of RM200 while the offender earning RM10,000 a month would have to pay RM1,667.

More complex variations of this calculator could be considered such as including the number of dependents in the calculation of disposable income. However, the principle remains, which is to uphold the spirit of fairness and proportionality on rich and poor alike.

Give the calculator a try:

No one should be above the law, or be victimised by it

Opponents of day fines have argued that scaling a fine according to income would undermine the severity of punishment an offender deserves. Day fines have also been said to under-deter certain criminals.

We agree that day fines, and fines in general, may not be fair and proportionate punishment for offences with serious, direct and intended consequences. In the case of MCO violations however, it is highly unclear how serious, direct or intentional the offence can be without knowing the movement history, infection status or even the motivations of the perpetrator.

Such levels of information gaps and guesswork does mean it’s simpler to have tighter enforcement, but tighter enforcement does not mean that MCO offenders need to face greater punishment purely due to their income, particularly at this time of great economic hardship. For MCO violations and minor offences, we advocate means-based sentencing as the humane and just way forward.