Media Statement –
28/9/2015
MADPET Calls For Repeal Of SOSMA, And Offences Criminalizing Activities
‘Detrimental To Parliamentary Democracy’
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:-
a) The immediate release of Datuk Seri Khairuddin Abu Hassan;
b) The immediate stop of the usage of Security Offences (Special Measures) Act 2012 (SOSMA) in this and all other cases in Malaysia;
c) The repeal of this draconian Security Offences (Special Measures) Act 2012 (SOSMA); and also
d) 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.
Charles Hector
For and on
behalf of
MADPET (Malaysians
Against Death Penalty and Torture)
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