28 September 2015 11:01(Malaysia Chronicle)
OPPRESSIVE LAWS: Repeal SOSMA & offences criminalizing activities ‘detrimental' democracy’ - MADPET
MADPET (Malaysians Against Death Penalty and Torture) is shocked
by the actions taken by the Malaysian police against Datuk Seri
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
18/9/2015 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
31/7/2012. 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 23/9/2015, 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.
Following the 2nd 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 check and balance 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. Eventhough, 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 are based on the same
facts would also be wrong. The police could have very well during his 5
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 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 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, rightly the person should
be charged in court, and any application for bail could be challenged.
Even if 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 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 in for the same or different offences, and further
remands could be seen as a violation of the presumption of innocence
principle. 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.
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 of 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 Datuk Seri Khairuddin Abu Hassan;
The immediate stop of the usage of Security Offences (Special
Measures) Act 2012 (SOSMA) in this and all other cases in Malaysia;
The repeal of this draconian Security Offences (Special Measures) Act 2012 (SOSMA); and also
The removal of all offences in our laws that criminalizes activities
‘detrimental to parliamentary democracy’, which is just too vague and as
such could be easily abused.
For and on behalf of
MADPET (Malaysians Against Death Penalty and Torture)
Source: Malaysia Chronicle. 28/9/2015
