Malaysians Against Death Penalty and Torture (Madpet) is most disappointed with the 111 MPs in the House of Representatives who voted in favour of extending the power of the police under Section 4(5) to hold suspects for offences listed under the Security Offences (Special Measures) Act 2012 (Sosma) for up to 28 days for investigation, without the need to bring these detained suspects before the magistrate to obtain remand orders.
The magistrate plays a most important role in preventing or reducing police abuse and even possibly torture.
On 27 July, the extension of the Sosma provision, as required by Section 4(11) of Sosma, was approved after 111 MPs voted in favour and 88 against, with the remaining 21 absent.
Section 4(5) of Sosma provides that “notwithstanding subsection (4), a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation”.
Section 4(11), however, imposed an obligation on Parliament to review the continued applicability of Section 4(5), and it states:
Subsection (5) shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of parliament to extend the period of operation of the provision.
The last extension is set to expire on 31 July, and that is why it came before Parliament.
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It must be noted that if Section 4(5) is not extended, then police after arrest would have to bring the arrested suspect before the magistrate within 24 hours and apply for further remand by the police for the purposes of investigation.
The maximum remand of 14 days is really more than sufficient for investigations to be completed by competent officers, and these suspects could then be charged in court. Once charged, they will be in detention as Sosma still unjustly says no bail for any of listed Sosma offences.
It is disappointing that some MPs, even ministers, seem to have forgotten about the presumption of innocence until proven guilty in court. Those arrested by the police are mere suspects and the purpose of the detention post-arrest is only for one purpose, that is, investigation. It is not to punish and not for any other purposes.
Maybe the government should now disclose how many persons were arrested for Sosma-listed offences and at the end of the day were not even charged but released.
Hence, it was shocking to read that Home Minister Hamzah Zainudin said, “It is unfair to say that those nabbed are oppressed when we know they are in the wrong.”
Madpet reiterates it is not for the police or the home minister to say someone is in the wrong or a criminal, for that right of determining the guilt or innocence is only with the courts, which will decide after a fair trial.
Section 4(5) of Sosma legalises the violation of the right of a suspect of certain crimes in Malaysia, and it also goes against Article 5(4) of the Federal Constitution:
(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority.
The bringing before the magistrate is to ensure that the police do not abuse their powers and to make sure that the detainee is not subjected to illegalities by the police including torture.
When brought before the magistrate, he or she can make sure that everything is done according the law. The detainee suspect and his or her lawyer have the right and ability to disclose to the magistrates the wrongdoings and abuses of power of the police.
The magistrate can do what is needed to end future wrongdoings or even acts of past abuses. The magistrate’s role is a most necessary check and balance against the abuses and wrongdoings of the police.
In the past, remand for the purposes of investigation was 14 days, and some magistrates did simply order 14 days’ remand on the first application by the police, which puts the detainee suspects at risk of abuses and wrongdoings of the police.
Parliament, in its wisdom, amended the Criminal Procedure Code through the Criminal Procedure Code (Amendment) Act 2006. A new version of Section 117(2) was inserted, which today reads:
The Magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows:
(a) if the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application; or
(b) if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application.
For lesser offences, the magistrate could now order remand for not more than four days on the first application by the police and not more than three days on the second application. For serious offences, even murder, the first remand application could be no more than seven days.
This was done by Parliament to end the possibility of abuses by the police, which can arise through long, unchecked periods of detention for the purposes of investigation.
Home Minister was wrong when, during the debate, he said that more time was required to turn suspects into witnesses to catch bosses. He said: “For cases of gangsterism, it is difficult for us to nab the bosses, if we don’t have those working for them as witnesses. Sometimes, it takes one to two weeks to convince them to be a witness.”
Madpet reminds the minister that the purpose of detention of suspects is just for the purpose of investigation of the suspect’s alleged crime. It is certainly not for ulterior motives of ‘pressuring’ detained suspects to turn into prosecution witnesses. It is not to get evidence for the crimes of another.
Post-arrest detention is only for the purpose of investigation and not for punishment or any other ulterior purposes.
Now, the extension of the application of Section 4(5) of Sosma will need the approval of the Senate.
Madpet hopes that Malaysian senators will act justly and reject extending this provision for another five years.
Madpet calls for the abolition of Section 4(5) of Sosma and for Malaysia to maintain the important role that magistrates play in monitoring and providing checks and balances on this aspect of the administration of justice: the bringing of arrested suspects before a magistrate within 24 hours with no further detention orders, until the magistrate, after hearing both parties allows. The maximum period of each remand order, even for Sosma-listed offences, must be limited to not more than seven days or, using the same formula as provided for in our Criminal Procedure Code, ie depending on the maximum sentence of each offence.
Madpet reminds everyone that there have been too many deaths in police custody, some of which the police have been directly responsible for. There is also possible a lot of torture and other abuses that happen during this detention for investigation, but many victims are afraid to report or seek justice for fear of possible repercussions.
Madpet reiterates the call for the abolition of Sosma. Let all criminal cases investigated and prosecuted be in accordance with the Malaysian Criminal Procedure Code and the Evidence Act. In the interim, a reduction in the list of Sosma offences limited to just offences that caused harm or death to victims would be good.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture