Bar: Sosma mustn’t be misused to silence 1MDB critics

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Whistleblower Khairuddin Abu Hassan - Image: themalaysianinsider.com

The grounds for the arrest and detention of Khairuddin cannot be justified, says Steven Thiru.

Khairuddin was arrested by the police on 18 September 2015 and remanded under Section 117 of the Criminal Procedure Code (CPC) for six days.

It has been reported that the police initially alleged that he had committed an offence under Section 124C of the Penal Code (attempt to commit activity detrimental to parliamentary democracy) because he had lodged reports with the law enforcement authorities in Switzerland, United Kingdom, France, Singapore and Hong Kong on the alleged financial impropriety relating to 1MDB.

Prior to his arrest, he had been barred by the Department of Immigration, without reason, from travelling outside Malaysia. It has also been reported that he was scheduled to travel to New York for a meeting with the Federal Bureau of Investigation.

The Inspector General of Police, Khalid Abu Bakar, was reported to have said that Khairuddin’s attempt to solicit foreign investigations into 1MDB was an act of sabotage and a danger to Malaysia’s economy and sovereignty as well as a disservice to the country’s law enforcement agencies.

Khairuddin was subsequently released by the magistrates’ court on 23 September 2015, without being charged. But he was immediately re-arrested under Section 4 of the Security Offences (Special Measures) Act 2012 (Sosma) and detained for up to 28 days.

It has been reported that he is being detained for investigations into allegations of having committed offences under Sections 124K (sabotage) and Section 124L (attempt to commit sabotage), both under the Penal Code. Investigative detention under Sosma is for the purposes of “security offences” under Parts VI and VIA of the Penal Code.

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Khairuddin filed a habeas corpus application on 28 September 2015, in which he contended that his detention is a misuse of Sosma because his actions are not in any way “terrorist activities”. He further asserted that his detention is actuated by bad faith and was an afterthought by the authorities.

It is unclear whether the police have obtained or seen the reports that Khairuddin purportedly lodged with the various foreign enforcement agencies. The police also appear to be prevaricating between allegations of offences under Section 124C and then under Sections 124K and 124L.

This raises serious concerns over the credibility of the investigations. Police investigations cannot be based on surmise or conjecture. An accused person cannot be arrested and held in remand under the CPC or for investigative detention under Sosma for the police to begin investigations to discover what, if any, offence has been committed. This would be a misuse of the investigative powers of the police, and would be akin to punishment of the accused person prior to a finding of guilt for any offence.

Moreover, Sosma should not be misused as an extension to remand after the remand has been terminated by the court. This would be oppressive and unjust. Indeed, it harks back to the dark days of the Internal Security Act 1960 (ISA), when detainees were subjected to immediate arrest upon succeeding in their habeas corpus applications and being released by the court. Sosma should not be abused in any manner, including the manner that the ISA was abused.

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It is also to be noted that Khairuddin had lodged a report with the police over the alleged mismanagement of 1MDB finances as far back as 12 December 2014. Two months later, he was sacked as Batu Kawan Umno division vice chairman. In this regard, Section 4(3) of Sosma prohibits detention for any political belief or political acts. It would appear that this provision has been inexplicably ignored in this case.

The lodging of reports with foreign enforcement agencies against a Malaysian corporate entity is not prohibited by our laws and cannot be regarded as being “activity detrimental to parliamentary democracy” or “sabotage” or “attempt to commit sabotage”. In this regard:

(1) Section 130A(a) of the Penal Code defines “activity detrimental to parliamentary democracy” as “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means”. This definition of the offence is imprecise, but it has been represented by the government as a law to deal with acts of terrorism. It was therefore never intended to restrict or prohibit any form of legitimate democratic activity, such as exposing allegations of wrongdoing; and

(2) The term “sabotage” is defined in Section 130A(h) of the Penal Code as:

(a) an act or omission intending to cause harm:

(i) for the interests of foreign powers or foreign organisations;

(ii) to premises or utilities used for national defence or for war; or

(iii) to the maintenance of essential services; or

(b) knowingly producing defective materials, premises or utilities used for national defence or for war.

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Even with this loose definition, it is incredible and a quantum leap in logic to hold that lodging of reports with foreign enforcement authorities is tantamount to sabotage.

Moreover, Sections 124C, 124K and 124L are found in Part VI of the Penal Code, which essentially deals with offences against the State. The lodging of reports against a corporate entity cannot be regarded as an act against the State, even if the company is owned by the State.

It would therefore appear that the grounds for the arrest and detention of Khairuddin cannot be justified. The action taken against Khairuddin is widely perceived as the latest attempt to silence dissent and harass critics who seek answers to the allegations of financial impropriety relating to 1MDB.

Further, the apparent misuse of Sosma in a case that does not concern “security offences” has a chilling effect, inasmuch as it discourages witnesses or whistleblowers from providing information or lodging reports against 1MDB. It also gives the perception that the mere act of raising questions on 1MDB will be viewed as an attack against the government, and that the government will not hesitate to use legislation — including those intended for “security offences” — against critics of 1MDB.

Steven Thiru is president of the  Malaysian Bar

2 October 2015

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