Malaysians Against Death Penalty and Torture (Madpet) is disappointed that Home Minister Saifuddin Nasution Ismail of the Pakatan Harapan-plus government indicated he has no intention of reviewing the Security Offences (Special Measures) Act 2012 (Sosma), a law to provide for special measures relating to security offences.
Saifuddin is right that Sosma is not a detention without trial law or a preventive detention law like the Prevention of Crime Act (Poca) or the Prevention of Terrorism Act 2015 (Pota), as all arrested for Sosma’s listed offences will, at the end of the day, be charged in court and tried, or will be released after their detention for purposes of investigation.
The problem with Sosma was caused by Parliament, and it ousted the power of the magistrate and the judiciary and even safeguards against police abuse and law-breaking. It also allowed for trials which can ignore some requirements of the Evidence Act and Criminal Procedure Code – which do violate one’s right to a fair trial.
Madpet believes Sosma needs to be repealed, and those charged under these security offences, now being some offences under the Penal Code and the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007; and all offences under the Special Measures Against Terrorism in Foreign Countries Act 2015 should be treated the same, including the right to a fair trial, in compliance with the existing Evidence Act and the Criminal Procedure Code.
At the very least, Sosma must be amended and reviewed as a first step, especially on the question of bail and the requirement for a magistrate’s remand order for further detention for investigation purposes.
Bail – free on condition you turn up for trial
Parliament, in Section 13(1) of Sosma states “Bail shall not be granted to a person who has been charged with a security offence”.
Through the use of the word shall, the courts’ jurisdiction whether to grant bail has been ousted by the act.
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This provision needs to be repealed, as the law specifying the offences already determines which offences are bailable or unbailable, and the courts still have the power to determine whether bail should be granted, and it has even in exceptional situations in the past granted bail to persons charged with murder.
Judges are wise, and will consider all relevant factors before deciding to grant bail or not, and what conditions will be imposed. It is absurd for someone charged with having in his possession a book to languish in prison without bail.
Note, even after trial, when he or she is found not guilty and acquitted – the loss suffered due to incarceration is not even compensated by the state.
Before magistrate within 24 hours
Being brought before a magistrate within 24 hours of arrest with no further detention for the purposes of investigation without a magistrate’s remand order is very important to prevent abuse by the police, including torture and to protect the suspect’s rights.
Malaysia also amended the Criminal Procedure Code in 2007 to further limit the maximum number of days of remand that can be obtained on first application and second application, based on the maximum sentences of the offence suspected.
Section 117(2) of the Criminal Procedure Code states:
…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;
Sosma, however, do not even require the arrested suspect to be brought before the magistrate within 24 hours, and for further detention, all that is required is that “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(5) of Sosma).
Hence, the obligation to produce suspects within 24 hours of arrest, and further detention as allowed by a magistrate for purposes of investigation is not there in Sosma.
Note that besides the Criminal Procedure Code, Malaysia’s Federal Constitution in Article 5(4) states:
(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…
Madpet demands that the provision that denies bail absolutely be repealed, and the role played by the magistrate to protect a suspect’s rights and prevent abuse by the police be restored.
Taking evidence in absence of accused or lawyer
Somas has many other draconian provisions, including the taking of evidence of unnamed witnesses in the absence of the accused and his or her lawyer. An accused in a fair trial has the right to listen to the testimonies of witnesses, and be able to then question the said witnesses.
We know that so many allegedly credible witnesses in cross-examination by the accused have been found wanting – either they have lied or their credibility became questionable. The challenging of witnesses is primarily the duty of the accused or his or her counsel.
How can the government or the minister not see that there is a serious and urgent need for the repeal of – or at least serious amendments to – Sosma.
The Essential (Security Cases) Regulations 1975 (Escar), which was similar to the present Sosma, saw the Malaysian Bar and lawyers protesting in the name of justice and even calling for a boycott of cases that used Escar.
Sosma now ought to be repealed and not simply be amended, if we believe in the right to a fair trial.
Madpet also calls for the disclosure of information about how many people have been arrested for offences listed under Sosma as security offences since Sosma came into force in July 2012, about how many of these have been charged and convicted. How many have had to suffer detention, electronic monitoring, and months or years in prison due to a denial of bail and, at the end of the day, were never convicted of the offence they were suspected of committing?
There is still no law that provides compensation for these innocent victims for the loss of liberty and other sufferings, which naturally also affected their families, income, employment and even businesses. Madpet calls for the enactment of a criminal compensation act, that will provide for these victims.
On an urgent basis, Madpet calls for the repeal of the mandatory exclusion of bail, and the restoration of the role of the magistrate in the issue of remand orders.
Madpet also calls for an urgent review of the listed security offences in Schedule 1 of Sosma, and the removal of offences like having books or badges and offences where there no victim was killed or grievously hurt from the said list.
The urgency of the review and amendment is paramount, as many still languish in prison without bail because of Sosma, as they await the end of their trial, which may at the end find them not guilty. It is unnecessary suffering also for the families of these detainees, including children, and for Malaysia financially, in the cost of providing food and board for these detainees.
Note in 2017, statistics suggest that 29.8% (17,663) of those in Malaysian prisons are pre-conviction or remand prisoners – not persons convicted and serving their prison sentence. For many of these people, poverty is the reason, as they simply cannot afford bail.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)