Media Statement – 19/10/2019
RELEASE YAZID SUFAAT FROM DETENTION
UNDER POTA, A DETENTION WITHOUT TRIAL LAW
Repeal Detention Without Trial Laws and
Immediately Release All Detained/Restricted
MADPET(Malaysians
Against Death Penalty and Torture is shocked by the Malay Mail report(19/10/2019)
entitled ’Home minister: Malaysian militant linked to 9/11 won’t be freed next
month’, which refers to one Yazid
Sufaat, a 55 year old biochemist, who is allegedly a Malaysian militant linked
to the September 11, 2001 attacks in the United States, who is now in Detention
in Simpang Renggam under Prevention of Terrorism Act 2015(POTA), a Detention Without Trial(DWT) law.
Detention
Without Trial(DWT) laws allow for the arrest and detention of persons without
trial, for a period of two years, which can be extended indefinitely 2 years at
a time.
These
detainees have never been tried, found guilty and convicted by court, and as
such has been denied the fundamental right to a fair trial.
Worse
still, is that any person arrested, detained and/or restricted under such DWT
laws, cannot even challenge the allege reasons used by the police and/or
government in court. There is no judicial review that allows detainees to
challenge the alleged reasons used for their detention.
An
example of this is seen in Section 15B((1) POCA, whicc states, ‘There shall be
no judicial review in any court of, and no court shall have or exercise any
jurisdiction in respect of, any act done or decision made by the Board in the
exercise of its discretionary power in accordance with this Act,…’ The only
thing subject to judicial review are matters of procedural compliance like is
he being detained by virtue of an order by the Board and such.
In
short, an innocent man can so easily be wrongly arrested, detained and/or
restricted without any avenue to clear his name and prove his innocence. The
name and reputation of a person and his/her family can also be tarnished
without there seemingly being no means legally to challenge it.
Najib’s
administration abolished 2 Detention Without Trial laws, namely the Internal
Security Act 1960 (ISA) and the Emergency (Public Order And Prevention. Of
Crime) Ordinance 1969.
But,
thereafter by amendments the government broadened the scope of Prevention of Crimes
Act 1949 (POCA) to now be able to be used for, amongst other, for any Penal
Code offences and other crimes. Detention Without Trial was also brought in by
amendment into POCA.
Then,
there was the passing of a new Detention Without Trial law being the Prevention
of Terrorism Act 2015(POTA).
All
Detention Without Trial laws are unjust and a violation of the fundamental
human right to a fair trial. It violates the presumption of innocence until
proven guilty.
Yazid
Sufaat apparently have been a victim of DWT laws, not once but several times.
In 2013, he was charged in court but there seems to be uncertainty whether
there was a trial or not.
Did the court find Yazid
Sufaat Not Guilty?
From
a perusal of court judgments, it suggests that the said Yazid Sufaat was
arrested 7 February 2013 and was charged in court for a charge under section 130G Inciting, promoting or soliciting property
for the commission of terrorist acts. At the High Court, he was successful in
challenging the charge. There was an Appeal to the Court of Appeal by the
prosecution, and the Appeal Court allowed the appeal on 24/1/2014, and said,
amongst others, ‘…order that the respondents' case be remitted to the High
Court, Shah Alam for the said court to set the dates for trial….’ ([2014] 2 CLJ
670) – Current Law Journal]
As
such, the trial should reasonably have proceeded at the High Court, and if he
was found guilty by court, he would have been sentenced to imprisonment, as the
law says a person convicted ‘…shall be
punished with imprisonment for a term which may extend to thirty years, and
shall also be liable to fine…’.
As
such, why is Yazid now being detained under the DWT law POTA? If he was found
guilty by the High Court, he would simply be in prison serving out his prison
sentence.
Did
the High Court, after trial find Yazid not guilty and as such the government
simply resorted to using a DWT law, hence avoiding a fair trial?
There
are many others who have been or continue to be victims of draconian DWT laws
in Malaysia. Many of them may be arrested, detained and/or restricted without
being accorded a fair trial, on allegations made by the police and government
which could also be false or baseless.
Police/Minister’s Belief
Irrelevant – Only Court Decides on Guilt or Innocence
Police
have arrested many suspects, and many have been released without ever being
charged. Many have also been charged in court, only for the court, after trial,
to find them not guilty. To prevent wrongful deprivation of rights and
liberties by the police or government, the independent courts serve as a
necessary safeguard to prevent miscarriage of justice. Courts only should
decide on guilt or innocence – not the police, some Board, the Home Minister or
the government.
Past
arrest and detentions under DWT trial laws should never be considered ‘criminal
records’, or proof that these are bad people. Only convictions by court after a
fair trial is proof. Remember that Lim Kit Siang, Hadi Awang and Mat Sabu were
all detained under DWT laws – the ISA, and it is certainly wrong to say that
they have a criminal record.
Good Peoples’
Representative and Parties Must Call for Abolition of Detention Without Trial
There
is a belief that some politicians and political parties may no longer be
pushing as hard as they did before for the abolition of DWT laws simply because
none of their leaders or members have fallen prey to DWT laws. It could also be
because the past Barisan Nasional government included in some DWT laws the provision
that says, ‘No person shall be arrested and detained under this section solely
for his political belief or political activity.’(Section 4(2A) POCA), which may
have resulted in some politicians and their party being less concerned with the
abolition of DWT laws. The people are still at risk, and many have fallen, and
are still victims of these draconian DWT laws.
Therefore, MADPET
-
Calls for the immediate and
unconditional release of Yazid Sufaat and all others currently being detained
and/or restricted under Detention Without Trials including Prevention of
Terrorism Act 2015(POTA), Prevention of
Crimes Act 1949 (POCA) and Dangerous Drugs (Special Preventive Measures) Act
1985;
-
Calls on the government to charge and
accord the right to fair trial to all persons who have allegedly committed any
crimes, including crimes concerning terrorism;
-
Calls on Malaysia to immediately
repeal all Detention Without Trial laws;
-
Calls on Malaysian media to be
conscious about reporting the truth, and not simply propagate police/government
suspicions or belief as being the truth, remembering always that a person is to
be presumed innocent until proven and found guilty in a fair trial by the
court;
-
Calls on Malaysia to uphold human
rights and justice.
Charles Hector
For and on behalf
of MADPET(Malaysians Against Death Penalty and Torture)
Home minister: Malaysian militant linked to 9/11 won’t be freed next month
.jpg "Home Minister Tan Sri Muhyiddin Yassin said it was not true that Yazid will be freed following the expiry of his Prevention of Terrorism Act (Pota) 2015 detention order. — Picture by Shafwan Zaidon")
PONTIAN, Oct 19 — The Home Ministry today denied that Yazid Sufaat,
the Malaysian militant linked to the September 11, 2001 attacks in the
United States, could be freed from detention next month.
Home Minister Tan Sri Muhyiddin Yassin said it was not true that
Yazid will be freed following the expiry of his Prevention of Terrorism
Act (Pota) 2015 detention order as there were other procedures to follow
before a decision is made.
“I (as Home Minister) can’t make the decision until the Prevention of
Terrorism Board convenes a meeting where a recommendation will be made
based on the detainee’s behaviour while in prison.
“Only then can the Home Ministry make a decision,” Muhyiddin said
after meeting volunteers and officers from the Pontian People’s
Volunteer Corps (Rela) here today.
Muhyiddin was responding to an earlier news report that Yazid, a
known terrorist, is expected to be released from Simpang Renggam prison
in November, where he had spent two years in detention under Pota 2015
which allows authorities to detain a suspect without trial for that
period of time.
Earlier today, Singapore-based news portal The Straits Times
reported that Yazid who was caught with four tonnes of ammonium nitrate
for a planned series of bombings in Singapore in 2000, could be freed
from prison in Johor next month.
The 55-year-old US-trained biochemist who is also a member of the
Jemaah Islamiah terror network, has been imprisoned three times in the
past 17 years for terrorist-related activities.
Pota is an anti-terrorism law that was passed by the government on
April 7, 2015. It enables the authorities to detain terror suspects
without trial for a period of two years.
The law also does not allow any judicial reviews of detentions.
Instead, detentions will be reviewed by a special Prevention of
Terrorism Board. The bill has been criticised by opposition elements as a
reincarnation of the former Internal Security Act, which was revoked in
2012. - Malay Mail, 19/10/2019
Report: Malaysian al-Qaeda suspect linked to 9/11 could be out of prison next month
.jpg "Bukit Aman counter-terrorism chief Ayob Khan Mydin Pitchay says the final decision to release Malaysian terrorist Yazid Sufaat has not been made yet by the Prevention of Terrorism Board, but his detention period will expire this November. — Picture by Yusof Mat Isa")
KUALA LUMPUR, Oct 19 ― Malaysian terrorist Yazid Sufaat, the suspect
caught with four tons of ammonium nitrate for a planned series of
bombings in Singapore in 2000, could be freed from prison next month, The Straits Times reported.
The 55-year-old US-trained biochemist is expected to be released from
Simpang Renggam prison where he had spent two years in detention under
the Prevention of Terrorism Act (Pota), which allows the authorities to
detain a suspect without trial for that period of time.
Yazid, said to be a member of the Jemaah Islamiah terror network, has
been imprisoned three times in the past 17 years for terrorist-related
activities.
“The final decision to release him has not been made yet by the
Prevention of Terrorism Board, but his detention period will expire this
November,” Bukit Aman counter-terrorism chief Ayob Khan Mydin Pitchay
told The Straits Times.
“Whether or not the detention order will be extended, the decision will be made before the expected date of release.”
Ayob declined to reveal the exact date.
In the 1990s, Yazid attempted to cultivate and load anthrax onto weapons in Afghanistan.
His house in Kuala Lumpur was also used by senior al-Qaeda members
for meetings, one of which discussed plans to crash planes in the United
States on September 11, 2001, news media reported.
He is the only Malaysian with direct links to the attacks.
Despite spending almost two decades behind bars and undergoing an
extensive deradicalisation programme, Yazid was reported to remain
totally unrepentant.
Ayob said that Yazid has the ability to easily recruit and incite people despite his limited knowledge of Islam.
The convicted militant is said to have distorted verses of the Quran ― Islam's holy scripture ― to justify his terror acts.
“At Tapah prison, some inmates were radicalised by him, that’s how
dangerous he is. Till this day, Yazid remains the most challenging
militant for us to rehabilitate,” Ayob said.
Yazid, a former army captain, was first arrested in 2002 under the
Internal Security Act (ISA). He was released in 2008 after undergoing
rehabilitation and showed signs of “remorse” and “repentance”.
But just five years later, he was detained for the second time under
the Security Offences (Special Measures) Act (Sosma) ― the legislation
that replaced the ISA ― for recruiting new members for the Islamic State
in Iraq and Syria (ISIS).
He served a four-year sentence in Perak's Tapah prison.
Yazid was again arrested in December 2017 under Pota after the
authorities found that he had been recruiting fellow inmates for
al-Qaeda while in jail.
Throughout the years as a militant, Yazid reportedly held weekly
religious classes in 2012 at his house in Ampang, Selangor, where he
recruited several individuals including a then 21-year-old man, Muhamad
Razin Sharhan Mustafa Kamal.
Razin told the Kuala Lumpur High Court in 2015 that Yazid had
undergone military training in Afghanistan, met Osama Bin Laden and had
taken part in conflict or what the militants dubbed as “jihad”. - Malay Mail, 19/10/2019
[2014] 2 CLJ 670
PP v. YAZID SUFAAT & ORS COURT OF APPEAL, PUTRAJAYA ABU SAMAH NORDIN JCA; AZAHAR MOHAMED JCA; MOHD ZAWAWI SALLEH JCA [CRIMINAL APPEAL NO: W-05-141-05-2013] 27 JANUARY 2014
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Counsel: For the appellant - Abdul Wahab Mohamad (Mohamad Hanafiah Zakaria, Ishak Mohd Yusof, Mohd Farizul Hassan Bakri, Choo Hueay Ting & Nadia Mohd Izhar with him); DPPs For the 1st & 3rd respondents - Amer Hamzah Arshad (Edmund Bon Tai Soon, Wan Hidayati Nadirah Wan Ahmad Nasir, Nur Zatulitri Md Yusof, Farida Mohamad, New Sin Yew & Chan Yen Hui with him); M/s Zatul, Hilda & Partners |
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JUDGMENT
Abu Samah Nordin JCA:[1] This is an appeal by the Public Prosecutor against the decision of the High Court, Shah Alam allowing a joint application by the respondents by way of a notice of motion: (i) to set aside and/quash or stay permanently the charges against them in exercise of the court's inherent jurisdiction; and[2] The respondents were arrested on 7 February 2013 under s. 4 of the Security Offences (Special Measures) Act 2012 ("SOSMA") and were separately charged before the Magistrate's Court, Ampang for security offences under s. 130G(a) of the Penal Code ('the Code'). Their cases were later transferred for trial before the High Court, Shah Alam pursuant to s. 177A of the Criminal Procedure Code. Section 12 of the SOSMA provides that all security offences shall be tried by the High Court. [3]Yazid bin Sufaat ('first respondent') was charged for committing a security offence under s. 130G(a) of the Penal Code, namely for promoting the commission of a terrorist act with the intention of advancing an ideological cause which is punishable with imprisonment for a term which may extend to 30 years and shall also be liable to fine. The charge against him reads: Bahawa kamu antara 1 haribulan Ogos hingga 20 haribulan Oktober 2012 jam antara 8.30 pagi dan 10.30 pagi, di rumah beralamat DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya, Ampang di dalam Daerah Ampang, dalam Negeri Selangor Darul Ehsan, dengan diketahui oleh kamu menggalakkan pelakuan perbuatan keganasan dengan niat untuk memajukan suatu tujuan ideologi, dan perbuatan tersebut boleh semunasabahnya dianggap sebagai diniatkan untuk menggugut orang awam di Syria dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 130G(a) Kanun Keseksaan (Akta 574) dan boleh dihukum di bawah seksyen yang sama.[4] Halimah binti Hussein ('second respondent') was charged for abetting the first respondent in promoting the commission of the said terrorist act, which is an offence under s. 130G(a) of the Code read with s. 109 of the said Code. The charge against her reads: Bahawa kamu antara 1 haribulan Ogos hingga 20 haribulan Oktober 2012 jam antara 8.30 pagi dan 10.30 pagi, di rumah beralamat DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya, Ampang, di dalam Daerah Ampang, dalam Negeri Selangor Darul Ehsan, telah bersubahat dengan Yazid bin Sufaat dengan diketahui oleh kamu menggalakkan pelakuan perbuatan keganasan di mana perbuatan itu dilakukan dengan niat untuk memajukan suatu tujuan ideologi dan perbuatan tersebut boleh semunasabahnya dianggap sebagai diniatkan untuk menggugut orang awam di Syria di mana kesalahan tersebut telah dilakukan atas sebab-sebab persubahat kamu, dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 130G(a) Kanun Keseksaan (Akta 574) dibaca bersama seksyen 109 Kanun yang sama.[5] Muhamad Hilmi bin Hasim ('third respondent') was similarly charged for abetting the first respondent in promoting the commission of the said terrorist act at the same place and time, which is an offence under s. 130G(a) of the Code read with s. 109 of the said Code. He was charged as follows: Bahawa kamu antara 1 haribulan Ogos hingga 20 haribulan Oktober 2012 jam antara 8.30 pagi dan 10.30 pagi, di rumah beralamat DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya, Ampang, di dalam Daerah Ampang, dalam Negeri Selangor Darul Ehsan, telah bersubahat dengan Yazid bin Sufaat dengan diketahui oleh kamu menggalakkan pelakuan perbuatan keganasan di mana perbuatan itu dilakukan dengan niat untuk memajukan suatu tujuan ideologi dan perbuatan tersebut boleh semunasabahnya dianggap sebagai diniatkan untuk menggugut orang awam di Syria di mana kesalahan tersebut telah dilakukan atas sebab-sebab persubahat kamu, dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 130G(a) Kanun Keseksaan (Akta 574) dibaca bersama seksyen 109 Kanun yang sama.[6] In this judgment, reference to the 'respondents' means the first and third respondents only unless otherwise stated. [7] We felt it necessary to reproduce the abovesaid charges against the respondents as the High Court's decision in setting aside and/quashing the charges and acquitting them of the said charges was based on the ingredients of the offence as stipulated in the charges. [8] What is a 'terrorist act'? The term 'terrorist act' is defined in s. 130B(2) of the Penal Code: 130B(2): For the purposes of this Chapter, "terrorist act" means an act or threat of action within or beyond Malaysia where:[9] An offence under s. 130G(a) of the Code is one of the offences relating to terrorism referred to in Chapter VIA of the Code. Offences under Chapter VIA of the Code are classified as "security offences" by virtue of s. 2 of the SOSMA. [10] SOSMA is an Act of Parliament enacted pursuant to art. 149 of the Federal Constitution ('the Constitution'). The long title to the Act expressly states that it is, "An Act to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters". By reason of s. 2 of the SOSMA, a person charged for committing a security offence will be tried according to the procedures as laid down in SOSMA. It must be noted that SOSMA merely regulates the trial of security offences. It does not create the said offences. Security offences are offences under Chapters VI and VIA of the Code and punishable under the said Code. [11] When the case was called up before us, learned counsel for the first and third respondents objected to the hearing of the appeal on the ground that the second respondent was absent. It was submitted that the appeal should be heard in the presence of all the respondents in order to avoid any possible conflict of decisions by different panels of this court. The appellant insisted on proceeding with the appeal as there was no foreseeable likelihood of securing the presence of the second respondent who could not be traced after she was acquitted of the charge against her. Attempts to execute the warrant of arrest against the second respondent were unsuccessful. [12] After hearing submissions from both parties, we ruled that we could proceed with the appeal against the respondents before us in absence of the second respondent. The appeal in respect of the second respondent could be heard separately after the execution of the warrant of arrest against her. There is no rule of law that the appeal against the first and third respondents cannot proceed in absence of the second respondent. Any further adjournment of the appeal would result in the respondents being held in custody longer than necessary as s. 13 of the SOSMA states that no bail shall be granted to a person charged with a security offence. [13] The application to set aside and/quash or stay the charges permanently against the respondents is based on three grounds. Firstly, the charges against them are defective, confusing, ambiguous and thus do not disclose any offence in law. Secondly, the charges against them are made mala fide, baseless, frivolous, vexatious and an abuse of the process of court. Thirdly SOSMA is unconstitutional and enacted contrary to arts. 149, 5 and/or 8 of the Constitution. [14] Before the High Court, the appellant conceded that the court has inherent power to set aside and/quash or stay the charges against the respondents on the grounds of mala fide or that they are oppressive or an abuse of the process of court. (Dato' Seri Anwar Ibrahim v. PP [2010] 9 CLJ 625; [2010] 6 MLJ 538, Karpal Singh & Anor v. PP [1991] 2 CLJ 1458; [1991] 1 CLJ (Rep) 183; [1991] 2 MLJ 544). On the first ground, the High Court held and correctly, that it has inherent power to set aside and/quash or stay the charges permanently, "to prevent an oppressive and mala fide prosecution, abuse of its process and to undo wrong in the course of administration of criminal justice". As for the third ground, it is clear from the notes of proceedings before the High Court that learned counsel for the respondents did not dispute the constitutionality of SOSMA which was passed pursuant to art. 149 of the Constitution. Thus the High Court did not in its grounds of judgment decide on this issue. [15] The crux of the respondents' contention is that the respondents are charged for promoting an act of terrorism and that act may reasonably be regarded as being intended as a threat to the members of public in Syria and not in Malaysia. It is the contention of the respondents that SOSMA was enacted pursuant to art. 149 of the Constitution to deal with action or threat committed within Malaysia by any substantial body of persons from inside or outside Malaysia. Article 149 states: 149. (1) If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation:[16] Thus, while art. 149 of the Constitution empowers the legislature to pass an Act of Parliament to deal with action taken or threat by any substantial body of persons from within or outside Malaysia, it does not empower Parliament to legislate or make laws meant to deal with action or threat by any substantial body of persons committed outside Malaysia. As the charges against the respondents specifically refer to terrorist act against members of public in Syria and not in Malaysia the said charges are thus defective, bad in law and do not disclose any offence under s. 130G(a) of the Penal Code. [17] It follows that the special measures provided in SOSMA relating to trial of a security offence under s. 130G(a) of the Penal Code are not applicable for trial of the respondents. It is an abuse of process of court to charge the respondents for security offences under s. 130G(a) of the Code and apply the provisions in SOSMA for the trial of the respondents. [18] The High Court agreed with the submissions of counsel for the respondents that the charges against them were related to acts of terrorism committed outside Malaysia, ie, in Syria. It held the view that SOSMA which was enacted pursuant to art. 149 of the Constitution, which is meant to deal with action or threat committed within Malaysia by any substantial body of persons from within or outside Malaysia, clearly does not apply to the trial of the respondents for offences relating to acts of terrorism committed outside Malaysia. The High Court ruled that should the prosecution proceed with the said charges against the respondents by invoking the provisions in SOSMA it would be an abuse of the process of court. On those grounds, the High Court set aside and/quashed or stayed permanently the charges against the respondents and ordered them to be acquitted and discharged. [19] For convenience, we reproduce paras. 22(b) and (e) of the judgment of learned judge which contained His Lordship's reasoning in allowing the application by the respondents: [20] In our judgment, the High Court had clearly erred and misconceived the charges against the respondents. The charge against the first respondent is for promoting a terrorist act between 1 August 2012 and 20 October 2012 at a house bearing address DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya Ampang, Selangor with the intention of advancing an ideological cause and that such act can reasonably be regarded as being a threat to the members of public in Syria.(b) Mahkamah ini berpuas hati dan bersetuju dengan hujahan oleh peguam bela bagi pihak Pemohon-Pemohon di mana terdapat merit dalam hujahan yang diutarakan oleh pihak peguam bela mengenai isu berkaitan dengan pertuduhan dan pemakaian SOSMA yang digubal di bawah Perkara 149 Perlembagaan Persekutuan. Adalah dipersetujui bahawa Perkara 149 Perlembagaan Persekutuan hanyalah terpakai bagi maksud ancaman keganasan yang ditujukan kepada keselamatan dalam negeri Malaysia oleh orang atau sebilangan orang yang sama ada berada di dalam mahu pun di luar negara. Oleh sebab pertuduhan-pertuduhan yang dikenakan terhadap Pemohon-Pemohon adalah melibatkan keganasan yang berlaku di luar negara Malaysia iaitu di negara Syria, maka pada pandangan Mahkamah ini keadaan tersebut tidak tertakluk di bawah ruang lingkup atau skop pemakaian Perkara 149 Perlembagaan Persekutuan. Oleh itu SOSMA yang digubal di bawah Perkara 149 Perlembagaan Persekutuan pada pandangan Mahkamah ini tidak boleh digunapakai sebagai prosedur dalam perbicaraan bagi membuktikan pertuduhan-pertuduhan yang telah dihadapkan terhadap Pemohon-Pemohon di dalam kes ini. Jika ini dilakukan, ia akan membawa makna bahawa di dalam kes terhadap Pemohon-Pemohon di sini, SOSMA telah digunapakai secara ultra vires Perkara 149 Perlembagaan Persekutuan itu sendiri. Perkara ini tidak sewajarnya berlaku. Mahkamah ini tidak bersetuju dengan hujahan Tuan TPR yang bijaksana bahawa SOSMA mempunyai extra territorial application atau extra territorial jurisdiction, sama seperti KK apabila melibatkan warganegara atau harta benda kepunyaan warganegara Malaysia;(There are no paragraphs (c) and (d) in the grounds of judgment). [21] The third respondent is charged with abetting the first respondent for the commission of the said offence at the same place and time, in Malaysia. The charges against the respondents are therefore in respect of acts of terrorism committed within Malaysia. Be that as it may, s. 4 of the Penal Code clearly states that any offence under Chapters VI and VIA of the Code include offence done outside Malaysia. Section 130B(5)(b) of the Code states that, 'a reference to the public includes a reference to the public of a country or territory other than Malaysia'. [22] Learned counsel for the respondents conceded before us that the charges against the respondents refer to the commission of security offences committed within Malaysia. Learned counsel also conceded that the threat to the security of Malaysia may come from within or outside Malaysia. [23] An act of terrorism is a transnational phenomenon. It has no territorial limits. It transcends national borders. For instance, an act of terrorism may be planned or hatched within Malaysia with an intention to execute it outside Malaysia. The intention of SOSMA is, among others, to prevent Malaysia from being used as a terrorist haven. S. Rajendra Babu and GP Mathur JJ in People's Union For Civil Liberties & Anor v. Union of India AIR 2004 SC 456 aptly describe acts of terrorism as follows: The terrorist threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover effects. It is therefore difficult in the present context to draw a sharp distinction between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. The Security Council unanimously passed resolutions 1368 (2001) and 1373 (2001); the General Assembly adopted resolutions 56/1 by consensus, and convened a special session. All these resolutions and declarations inter alia call upon member states to take necessary steps to 'prevent and suppress terrorist acts'. India is a party to all these operation among nations. It has thus become our international obligation also to pass necessary laws to fight terrorism.[24] In our judgment s. 2 the of SOSMA makes it clear that the procedure laid down in SOSMA apply to trial of any person charged with committing any security offence under Chapter VIA of the Code. The learned judge therefore erred in holding that it would be an abuse of the process of court to invoke the provisions in SOSMA for the purpose of trial of the respondents for security offences under s. 130G(a) or s. 130G(a) read with s. 109 of the Code. [25] For the aforesaid reasons, we allowed the appeal by the Public Prosecutor and set aside all the orders of the High Court. We made a further order that the respondents' case be remitted to the High Court, Shah Alam for the said court to set the dates for trial. |
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