Madpet: Repeal Sosma and law criminalising ‘activities detrimental to parliamentary democracy’

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Whistleblower Khairuddin Abu Hassan - Image: themalaysianinsider.com

Malaysians Against Death Penalty And Torture (Madpet) is shocked by the actions taken by the Malaysian police against Khairuddin Abu Hassan for allegedly lodging reports with relevant authorities in other countries against 1Malaysia Development Berhad (1MDB), a private company owned by Malaysia.

Khairuddin was first arrested and remanded for investigation on 18 September 2015 under section 124C of the Penal Code, being the offence of “attempts to commit an activity detrimental to parliamentary democracy or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to fifteen years”.

This is one of the new offences included into the Penal Code which came into effect on 31 July 2012. It is too vague since there seems to be not even a definition as to what really would be an “activity detrimental to parliamentary democracy”, and as such could very be easily abused.

On 23 September 2015, when the courts released him after possibly denying the police application for further remand, Khairruddin was immediately re-arrested for allegedly committing offences under Section 124K and 124L of the Penal Code. This would be the offence of committing ‘sabotage’ and attempting to do so respectively.

Normally, when a person is arrested, being suspected of committing a criminal offence, the procedures and rights that are provided for in the Criminal Procedure Code applies. The police after arrest, can hold a suspect for no longer than 24 hours, and thereafter, if there is a need for further remand for the purposes of investigation, the police need to apply to the magistrate for a remand order.

Subsequent remand applications are permitted, whereby the total period of permissible detention for this purpose is 14 days. The Malaysian law now also sets limits on the maximum number of days of remand that can be granted by court on the first application, and applications thereafter.

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Following the second arrest of Khairuddin, the police allegedly stated that they would now rely on the Security Offences (Special Measures) Act 2012 (Sosma), rather than the normal Criminal Procedure Code(CPC).

Avoiding normal procedures, safeguards and rights by invoking Sosma

Sosma is a law that provides for “special measures relating to security offences for the purpose of maintaining public order and security and for connected matters”. There are ‘special measures’ from the point of arrest until the end of trial, which do undermine the rights of the suspect and/or accused, including the right to a fair trial.

When Sosma is used, the police no longer need to get a magistrate’s order for the purposes of remanding a suspect for more than 24 hours. All that is required by Sosma for detention beyond 24 hours is that “a police officer of or above the rank of Superintendent of Police” to “extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation”.

As such, the necessary checks and balances provided by the magistrate and the courts to ensure that the police do not abuse their powers and/or unjustifiably deny a suspect his freedom is gone.

Sosma also provides that no bail will be granted for persons charged with security offences, save for very limited exceptions. Sosma also allows the court to accept evidence of witnesses, in the absence of the accused person and his lawyer. In essence, Sosma allows for the abandonment of many of the fundamental requirements, safeguards and rights necessary to ensure a fair trial.

Was there new evidence after release to justify immediate re-arrest?

Unless new evidence has come to light since the release, an immediate re-arrest of a suspect would be wrong. Even though Khairuddin’s re-arrest may be for a different offence (which happens to be under the same part of the Penal Code), which most probably is based on the same facts, it would also be wrong.

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The police could have very well have, during his five days in detention, investigated him concerning all related offences. There is no need for a re-arrest and further detention.

Furthermore, considering that he was released by court, the action of the police seems to be an act of disrespecting the court. Now, using Sosma in this re-arrest, the police shuts out the court’s ability to ensure that the police are not abusing their powers of remand.

It must be stressed that after a suspect is arrested, there is always the option to release the suspect on police bail on condition that he presents himself at the police station as and when needed to facilitate investigations. There is no necessity to continue to hold a suspect in detention for the purposes of investigation.

If the prosecution has sufficient evidence, by right, the person should be charged in court, and any application for bail could be challenged. Even if he is released on bail, the courts could order that the accused not leave the country.

Punishment comes after conviction: Presumption of innocence

Madpet reiterates the importance of adhering to the legal principle that a person is presumed innocent unless proven guilty, and this ‘proof of guilt’ is not a matter to be determined by the police, prosecution and/or the minister, but by a court of law.

As such, prolonged remand for the purposes of investigation, or re-arresting, be it for the same or different offences, and further remands could be seen as a violation of the principle of presumption of innocence. Punishment comes only after conviction and sentencing by a court of law, and not before.

Duty to report suspected crimes in any country?

Every human person has an obligation to highlight any alleged wrongdoing, crime, injustice or human rights violation. They are not expected to be indifferent or to turn a blind eye to the occurrence of suspected wrongdoings.

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Whether the allegation is true or not, or even whether there is evidence to support it or not, it is not the concern of the person lodging reports. That will be a matter for the relevant investigation authorities to investigate and determine.

There is also no law in Malaysia that says that a Malaysian can only file reports/complaints about wrongdoings by Malaysians or Malaysian companies in Malaysia, and to file any such reports/complaints in any other country is a crime.

Deterring lodging of complaints against ‘powerful’ persons and companies?

Hence, Madpet, from information provided thus far in media reports, fails to see how what Khairuddin is alleged to be doing – being the filing of reports with authorities in other countries – could even be perceived as a crime. Note that the relevant authority in any country will only commence investigation if and only if the subject matter is a violation of their applicable laws, and it is a matter that falls within their jurisdiction.

Malaysia need to be very concerned that its actions now may only deter Malaysians from lodging reports/complaints about suspected crimes or wrongdoings against ‘powerful’ personalities and companies. No one is above the law.

Madpet thus calls for:

  • The immediate release of Khairuddin Abu Hassan;
  • An immediate stop to the use the Security Offences (Special Measures) Act 2012 (Sosma) in this and all other cases in Malaysia;
  • The repeal of this draconian Sosma; and
  • The removal of all offences in our laws that criminalises “activities detrimental to parliamentary    democracy”, which is just too vague and as such could be easily abused.

Charles Hector
for and on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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