Police chief is wrong, Sosma must be repealed

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Graphic: freemalaysiatoday.com

Malaysians Against Death Penalty and Torture (Madpet) is appalled by the fact that Inspector General of Police Abdul Hamid Bador is trying to lobby for the draconian Security Offences (Special Measures) Act 2012 (Sosma) – which Pakatan Harapan in its election manifesto promised would be repealed – to be retained.

Hamid said, among other things, that “Sosma is taken away from us, it means you take away our ‘guns’ to fight terrorists”.

He claimed that “the counter terrorism (E8) division of the Bukit Aman Special Branch department has racked up an impressive number of arrests and stopped planned attacks from happening here” (Malay Mail, 21 July 2019).

This claim, however, is not substantiated by the number of convictions after an open trial. If Sosma only was used, then there must be a trial. Preparing or planning for a crime is also a crime in malaysia which will be tried.

Maybe the government could give us the statistics of the number of persons who have been tried and convicted for terrorist offences, including the offence of preparing to carry out terrorist actions.

Sadly, the inspector general also seems to be unhappy with the abolition of the Internal Security Act (ISA), that draconian detention without trial has been abolished by the then Barisan Nasional government.

The previous government then simply extended the scope of the Prevention of Crime Act, another detention without trial law, and enacted a new detention without trial law, the Prevention of Terrorism Act.

Madpet is now concerned about the suitability of Abdul Hamid Bador as Malaysia’s police chief, noting that this was a political appointment.

The inspector general also recently said that the arrest and detention of Maria Chin Abdullah using Sosma was justified.

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He forgets that the now member of Parliament Maria had, after her release, sued the government over her arrest and detention. The government has since agreed to pay compensation of “RM25,000 in damages and RM5,000 in costs to Petaling JayaMP Maria Chin Abdullah over her detention in 2016” under Sosma (Malay Mail, 18 February 2019).

This is an indication or rather an admission that the government has done wrong in arresting and detaining her using Sosma.

Hence, what the inspector general says now seems to be against the current government’s position. Alternatively, it is an allegation that the government’s acknowledgement of fault and the payout of compensation was wrong.

Was Maria then accorded ‘special treatment’ because she, who was then the chairperson of Bersih, had since been elected as a Pakatan Harapan member of Parliament.

Sosma has, amongst others, three main draconian elements.

It removes the requirement of bringing the suspect before a magistrate within 24 hours, hence ousting the judicial authority of magistrates to consider whether to allow further remand.

Arrested suspect need to be brought before a magistrate 24 hours after arrest. During remand applications by the police to enable a suspect to be held in detention for investigation, the magistrate decides after hearing the police and the suspect (or his/her lawyer) and then makes the appropriate just order – no further remand or a remand for a certain number of days. In the case of the Sosma list of ‘security’ offences, there is no need to bring the suspect before a magistrate. All that is required 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” (Section 4(5)).

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It denies bail for suspects charged in court. In ordinary criminal cases, the accused is generally entitled to bail. But there is no provision for bail if one is charged with any one of over 70-100 ‘security’ offences listed in Sosma. Section 13(1) states: “(1) bail shall not be granted to a person who has been charged with a security offence.”

It allows the use of evidence that is not allowed by our Evidence Act in criminal trials and allows for ‘special procedures’ during trial including the ability for the court to “hold an inquiry in camera by questioning the witness concerned or any other witness in the absence of the accused and his counsel”. That means the lawyer and the accused cannot even cross-examine or challenge the evidence. It will not be a fair trial.

The need for the police to bring those arrested before a magistrate within 24 hours is a right provided for in the Federal Constitution and the Criminal Procedure Code.

To just trust the police will exercise their power rightly is not something that any reasonable person can accept. That is why the right to be brought before a magistrate within 24 hours exists – and why the magistrate is empowered to evaluate the complete facts to determine whether further remand is allowed and for how long.

The legal principle is that one is presumed innocent until found guilty by a court – not by the police or the government. This principle must always be respected.

The Barisan Nasional government also introduced a new kind of offence: “activities detrimental to parliamentary democracy”. This is just too vague and open to abuse. This must certainly be repealed. There, small offences like receipt of publication detrimental to parliamentary democracy is also a Sosma-listed ‘security’ offence.

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Madpet calls for the repeal of Sections 124b to 124j of the Penal Code and all the offences concerning “activities detrimental to parliamentary democracy”.

In Malaysia, there is still no criminal compensation scheme that will compensate those who have been detained wrongfully by the police or in prison.

After 28 days in detention by the police, one is not charged but released, and this suggest that the detention was wrong. After languishing in prison because Sosma denies bail, and the court finds you not guilty, it is unjust that an innocent man is not compensated for his loss of liberty.

Remember that these suspects or those who languish in prison because bail is denied are fathers, mothers, spouses and siblings, who have a responsibility to families and dependents. Prolonged detention can result in loss of employment, income and business.

Whilst acknowledging the right of the inspector general to his personal opinion, the government should not falter in doing justice by abolishing Sosma and all laws that allow detention without trial.

Therefore, Madpet

  • reiterates the call for the immediate repeal of Sosma
  • calls for the repeal of Sections 124(b) to 124(j) of the Penal Code, all the offences concerning “activities detrimental to parliamentary democracy”
  • reiterates the call for the repeal of all detention without trial laws like the Prevention of Crime Act 1959, the Prevention of Terrorism Act 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985, which also deny the right for the victim to file for judicial review against the reasons used for his or her detention/restrictions
  • calls on the government to ensure justice is done and that everyone is accorded the right to a fair trial

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.

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