By Jason Thomas | Free Malaysia Today

Of the thousands arrested for breaching SOPs since the start of the Covid-19 pandemic in March last year, there is no breakdown in terms of citizens and foreigners.

Lawyers are questioning immigration Director General Khairul Dzaimee Daud’s recent comment that foreign nationals who breach movement control order (MCO) SOPs could potentially be deported.

In a May 14 post on the immigration department’s social media channels, Khairul said that foreigners who violate MCO SOPs will be subject to stern action, including deportation to their country of origin.

Since the start of the first lockdown on March 18 last year, there have been thousands of people arrested for breaching SOPs, and they were either issued compounds, remanded or granted bail.

Senior minister for security Ismail Sabri Yaakob has been providing daily breakdowns for such arrests, with among the most common offences including the failure to wear face masks, failure to provide materials for contact tracing or registration, and participating in activities that made physical distancing difficult.

However, the breakdown does not distinguish between citizens and foreigners.

M Ramachelvam, the co-chairman of the Bar Council’s Migrants, Refugees and Immigration Affairs Committee, stressed that the law pertaining to non-compliance of SOPs must be applied equally between citizens and non-citizens.

Stating that non-citizens should be entitled to equal protection of the law as citizens, Ramachelvam stressed that non-citizens should not be punished with heavier penalties due to their nationality.

“The threat to deport non-citizens for non-compliance of the SOPs is harsh and disproportionate,” he told FMT.

“Although the immigration director-general is vested with wide powers under the Immigration Act 1959/63 (Act 155) to cancel any pass or permit at his absolute discretion, the said power must be exercised responsibly.

“The pandemic has and continues to impact everyone, including citizens and non-citizens throughout the world. What is required is a comprehensive and proportionate response by the authorities.”

Under the Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021, individuals can be compounded a maximum of RM10,000 for breaching Covid-19 SOPs while companies or corporations can be compounded a maximum of RM50,000.

Lawyer Joshua Tay said that while the Immigration Act gives the immigration director-general wide-ranging powers, including the power to remove prohibited or undesirable immigrants, he said this power should only be exercised if there are “good grounds” to do so.

“Personally, I feel it’s not really commensurate to send foreigners back merely because he or she breached an MCO SOP,” he told FMT.

“The police or health ministry, who are actively enforcing SOPs despite being spread thin, would be in a better position to issue fines or compounds.”

Another lawyer, V Vemal Arasan, said that the immigration director-general was “misinterpreting” the discretion handed to him to remove prohibited or undesirable immigrants as per the Immigration Act.

Vemal recently represented Simon Adavize Momoh, a Nigerian who was detained in March for drink-driving and was then issued a deportation order.

Momoh was ordered to be released by the Shah Alam High Court on April 23 after Shah Alam High Court judge Ab Karim Ab Rahman ruled that his detention was unconstitutional and that the immigration department had breached procedure.