The Malaysian Bar welcomes the directive of Prime Minister Anwar Ibrahim that the government reviews and reassesses the Security Offences (Special Measures) Act 2012 (Sosma).
It was reported that the government will work towards reviewing the law in order to keep a balance between upholding national security and respecting human rights. The scrutiny of this draconian law is long overdue.
A mere review of or piecemeal amendments to Sosma, however, will not be sufficient to address the deep-seated flaws of the law.
The Malaysian Bar firmly maintains that Sosma must be repealed in its entirety.
Any law governing security offences must operate within the frameworks of justice and due process.
Sosma by its very nature, however, grants sweeping powers to law enforcement agencies, overriding fundamental rights and liberties enshrined in the Federal Constitution.
This creates an environment ripe for misuse of power, where individuals are detained without proper judicial supervision, denied the right to bail, and subjected to a process that undermines their right to a fair trial.
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The very existence of such a law threatens the integrity of our legal system and the rule of law.
One of the most alarming aspects of Sosma is the provision that allows for detention without judicial oversight. Under ordinary legal principles, a person who is arrested must be brought before a magistrate within 24 hours. This is a crucial safeguard to prevent unlawful detention and to ensure that law enforcement agencies operate within legal boundaries.
Sosma extends the period of detention to 28 days without requiring the suspect to be presented before a magistrate for remand. The 28 days of detention, without judicial scrutiny, is twice as long as the period of remand provided for under the Criminal Procedure Code.
Further, Sosma denies the accused the right to be granted bail, except in very limited circumstances. This is a denial of the presumption of innocence – a cornerstone of any fair and just legal system.
The granting of bail is to strike a balance between protecting public interest and safeguarding individual liberty, yet Sosma disregards this altogether, leading to situations where individuals face unnecessarily prolonged detention without trial.
Proponents of Sosma argue that the law is necessary to combat threats to national security.
However, this argument overlooks the fact that Malaysia already has other well-established laws that equip law enforcement agencies with more than enough statutory power to investigate individuals detained for complex security offences. [These laws include the Penal Code, the Criminal Procedure Code, the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, and the Special Measures against Terrorism in Foreign Countries Act 2015.] These laws provide mechanisms for thorough investigation and prosecution, and do not erode the fundamental liberties of the accused person in the trial process.
The authorities have no justification for resorting to Sosma when these existing laws already provide the needed legal framework. The existence of Sosma is therefore not only redundant, but dangerous, as it removes key safeguards that prevent overreach and abuse.
A truly democratic nation does not sacrifice fundamental liberties in the name of national security. National security should never be used as a justification to diminish individual rights or to give unchecked powers to the authorities.
The rule of law means that statutory power granted to the authorities or the executive must remain within legal and constitutional boundaries, not outside of them.
Any law that allows for the possibility of unchecked power, arbitrary detention and the erosion of fair trial rights should not exist in a society that upholds justice.
We are reminded of the third principle of our Rukun Negara (National Principles) – “Keluhuran Perlembagaan” – which points out that the Federal Constitution is supreme.
Sosma is inconsistent with the principles of constitutional supremacy and natural justice.
While the government’s intention to review the law is a step in the right direction, there can be no compromise when it comes to the protection of fundamental liberties.
Sosma has no place in our maturing democratic nation and is an affront to the principles of natural justice.
The Malaysian Bar strongly calls for the government to take decisive action and abolish Sosma in its entirety.
Malaysia should uphold its commitment to the protection of human rights by repealing all preventive detention laws, beginning with Sosma. – Bar
Mohamad Ezri Abdul Wahab is the president of the Malaysian Bar.
- 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
