This is one of the new offences included into the Penal Code, which came into effect on August 31, 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.
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 second 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.
Even though, 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 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 needs 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.
MADPET thus calls for:
a) The immediate release of Datuk Seri Khairuddin Abu Hassan;