Malaysians Against Death Penalty and Torture (Madpet) is extremely disappointed with Prime Minister Anwar Ibrahim’s pronouncement in Parliament recently.
Prime Minister Datuk Seri Anwar Ibrahim today in Parliament justified keeping the Security Offences (Special Measures) Act 2012 (Sosma) in force. However, the prime minister agreed that the laws must be clear and he was against the misuse of such law similar to the repealed Internal Security Act 1960 (ISA).
The Pakatan Harapan-led government, that includes the DAP, Amanah and PKR, once again disappoints the people.
Sosma not a detention-without-trial law.
First, Anwar is wrong because ISA involves detention without trial – there is no trial and victims are prevented from even challenging the reasons they have been detained or restricted in court. There is no way of proving ‘misuse or abuse’.
Sosma is not at all the same [as the ISA], as victims are accorded a trial, and if the courts decide they are not guilty, then they are acquitted and freed.
Sosma is:
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An Act to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters.
It allows for evidence not normally admissible in other criminal trials to be admitted.
It provides for a different unjust procedure during trial –
…the evidence of such witness shall be given in such manner that he would not be visible to the accused and his counsel, but would be visible to the court; and further if the witness fears that his voice may be recognized, his evidence shall be given in such manner that he would not be heard by the accused and his counsel.
(4) The court may disallow such questions to be put to the witness as to his name, address, age, occupation, race or other particulars or such other questions as in the opinion of the court would lead to the witness’ identification. – Section 14, Sosma
This affects the right of the accused (or his or her lawyer) to cross-examine, and challenge the credibility of a witness – which is a fundamental element to ensure a fair trial.
This difference ignores normal criminal procedure and the Evidence Act, which Parliament in enacting their laws considered to be just and fair – thus necessary to ensure a fair trial. When ignored, there is a greater risk of miscarriage of justice, and one is denied a fair trial.
Sosma needed for ‘terrorists’?
Sosma does not have any offences, but the First Schedule lists offences that will be considered security offences, and thus Sosma’s special procedures apply. The listed Sosma offences currently are
Penal Code –
- Offences under Chapter VI [Offences Against The State]
- Offences under Chapter VIA [Offences Relating To Terrorism] and
- Offences under Chapter VIB [Organized Crime]; Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007
- Offences under Part IIIA; and Special Measures Against Terrorism in Foreign Countries Act 2015
He [Prime Minister Anwar Ibrahim] reasoned that such law was needed to control terrorist activities and to keep the nation safe. “For those kinds of cases, the principle is to have strong and strict laws. There is no country in the world that doesn’t have those laws. “There are elements of terrorism that require a law that is different from others,” Anwar justified. – Malay Mail, 13 February
As we see now, Sosma can be used for others, not just those who are terrorist but for others. It can be used against individuals alleged to have committed offences against the state, which also include the draconian and vague offences of “activity detrimental to parliamentary democracy”.
It also includes organised crime offences and anti-trafficking of persons offences.
Madpet calls for the removal from the Sosma list of offences all other offences, save for terrorist offences, more so, since that was the justification given by Prime Minister Anwar for not repealing the law.
Risk of misuse of Sosma
The PM’s hopes that it will not be misused or abused is fantasy, as police, law enforcement and even the prosecution will act in accordance to the law. They are not bothered with what Anwar hopes or wishes. They do what the law allows them to do.
Of late, several people allegedly associated with GISB Holdings were charged under one of the Sosma-listed offences for being members of an organised criminal group.
Was this an abuse or misuse of Sosma? They could be charged for the actual crimes they are alleged to have committee, alone or with others – but that will not be a Sosma-listed offence, would it now?
Now, those from GISB Holdings are charged with merely being members, and that is no mention whatsoever of the specific crimes they are alleged to have committed.
When was GISB Holdings even made an ‘organised criminal group’, for we did not see it in the press. All we saw was that several states decided they were a deviant Islamic group.
Remember Article 7(1) – No person shall be punished for an act or omission which was not punishable by law when it was done or made.
Sosma removes safeguards
When police arrest a suspected criminal, they can only keep him or her for not more than 24 hours, and if further detention for the purposes of investigation is needed, then they have to apply to a magistrate for further remand.
The purpose of this was to prevent police abuse, so the independent magistrate will decide, after hearing all parties, whether further remand is needed for the purpose of investigation. The magistrate also has the opportunity to ensure no torture or other abuse happened.
Article 5(4) of the Federal Constitution says:
(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…
In the past, a magistrate could just give a 14-day remand on the first application by the police.
Parliament, in its wisdom amended that, and now the maximum length of remand is fixed in law – less than four days or seven days (for serious crimes). The reason is so that the magistrate can determine whether it is true that further remand is needed or not.
Sosma completely removes the role of the magistrate, and all it requires is “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”.
So, there is no more an independent magistrate to monitor and prevent police abuse or misuse of their remand powers. This is very dangerous and facilitates the possibility of police abuse or misuse.
Madpet calls for an amendment to Sosma to reinstate the role and jurisdiction of the magistrate [and] the requirement that no one shall be detained more than 24 hours after arrest.
Sosma could provide for a longer remand period, but the requirement to bring the suspect for further remand applications every four or five days will ensure the police are not abusing or misusing their powers. This will ensure the police are not keeping anyone in detention for any purpose other than investigation.
Bail – presumption of innocence
In Sosma, Parliament ousts the power of the judge in determining whether bail is allowed or not. This power must be restored to the judge, who after a bail hearing, will wisely decide on bail. We have to trust over judges.
Sosma is a draconian law that allows a suspect, who then becomes an accused, to be continuously detained until the end of trial and appeal. [It would be a gross injustice if at the end of the day, the said person is not found guilty and [is then] acquitted.]
Madpet calls for the trial of any person who is in detention because they could not afford bail. Or where bail is denied, [the trial] should … commence immediately, and should end within three months of the date charged or [it should] at least reach the stage that prosecution has successfully proved to the court a prima facie case.
It would be a gross injustice for an innocent person. It would be a gross injustice for anyone, especially the innocent, to languish in detention – in possible similar conditions with convicted criminals serving their sentences – for a long time [while waiting] for their trial to end. This is the dreaded pre-conviction sentence.
Madpet calls for the immediate repeal of Sosma.
Madpet calls for the repeal of provisions in Sosma and other laws that remove the right to bail, and that the issue of bail be restored to the jurisdiction of judges. We have to trust our judges.
It is indeed sad to see political parties that spoke of reform and even MPs or politicians failing to act bravely to uphold the cause of justice. Even if they are from parties in government, they must at the very least bravely speak up for what is right. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
