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SOSMA must be repealed now, if not seriously amended to remove mandatory denial of bail, and restoration of Magistrate’s role in detention for purpose of investigation Home Minister Saifuddin Nasution decision not to review SOSMA a betrayal of the PH Plus Government? (MADPET)
New home minister must immediately repeal Sosma – Madpet
Is Datuk Seri Saifuddin Nasution Ismail’s refusal to review a betrayal of unity govt?
Updated 2 days ago · Published on 14 Dec 2022 8:59AM
MADPET (Malaysians Against Death Penalty and Torture) is disappointed that Home Minister Datuk Seri Saifuddin Nasution Ismail of the Pakatan Harapan-Barisan Nasional unity government indicated that he has no intention of reviewing the Security Offences (Special Measures) Act 2012 (Sosma), which is a law that provides for special measures relating to security offences.
Saifuddin is right that Sosma is not a detention-without-trial law or a preventive detention law like the Prevention of Crime Act or Prevention of Terrorism Act 2015, as all arrested for Sosma-listed offences will at the end of the day be charged in court and tried, or will be released after the detention for purpose of investigation.
The problem with Sosma was caused by Parliament, and it ousted the power of the magistrate and/or judiciary, and even safeguards against police abuse and law-breaking.
It also allowed for trials that can ignore some requirements of the Evidence Act and Criminal Procedure Code, which do violate one’s right to a fair trial.
Madpet is of the view that Sosma needs to be repealed, and people charged under these security offences – now being some offences under the Penal Code and Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 – and all offences under the Special Measures Against Terrorism in Foreign Countries Act 2015 should be treated the same, including fair trial, in compliance with the existing Evidence Act and Criminal Procedure Code.
At the very least, Sosma must be amended and reviewed as a first step, especially on the question of bail and the requirement of the magistrate’s remand orders for further detention for investigation purposes.
Bail should be free on condition you turn up for trial
Section 13(1) of Sosma states that “bail shall not be granted to a person who has been charged with a security offence”.
By reason of the use of the word “shall”, the courts’ jurisdiction to grant bail or not has been ousted by the act. This provision needs to be repealed, as the law specifying the offences already determines which offences are bailable or unbailable, and the courts still have the power to determine whether bail is granted, and have even in exceptional situations in the past granted bail to persons charged with murder.
Judges are wise, and will consider all relevant factors before deciding to grant bail or not, and what conditions will be imposed. It is absurd for someone charged with having a book in his possession to languish in prison without bail.
Note that even after trial, when he/she is found not guilty and acquitted – the loss suffered by reason of incarceration is not even compensated by the state.
Before magistrate in 24 hours after arrest, no further detention without remand order
Being brought before a magistrate within 24 hours of arrest, without any further detention for purpose of investigation without a magistrate’s remand order, is very important to prevent abuse by police, including torture, and for the protection of the suspect’s rights.
Malaysia amended the Criminal Procedure Code in 2007 to further limit the maximum number of days of remand that can be obtained on the first and second applications, based on the maximum sentences of the offence suspected.
Section 117(2) of the Criminal Procedure Code states that the “magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorise the detention of the accused in such custody”.
The section states that “if the offence which is being investigated is punishable with imprisonment of less than 14 years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application”.
It also states that “if the offence which is being investigated is punishable with death or imprisonment of 14 years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application”.
Sosma, however, does not even require the arrested suspect to be brought before the magistrate within 24 hours, and for further detention, a “police officer of or above the rank of superintendent of police may extend the period of detention for a period of not more than 28 days, for the purpose of investigation”, according to Section 4(5).
Hence, the obligation to produce suspects within 24 hours of arrest, with further detention as allowed by the magistrate for purposes of investigation, is not there in Sosma.
Note that besides the Criminal Procedure Code, the federal constitution in Article 5(4) states that “where a person is arrested and not released, he shall without unreasonable delay, and in any case within 24 hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority”.
Madpet demands that the provision denying bail be absolutely repealed, and the role played by the magistrate to protect suspect rights and prevent abuse by police be restored.
Taking evidence in absence of accused/lawyer
Sosma has many other draconian provisions, including the taking of evidence of unnamed witnesses in the absence of the accused and their lawyer.
An accused in a fair trial has the right to listen to testimonies of witnesses, and be able to then question the said witness.
We know that so many allegedly credible witnesses in cross-examination by the accused have been found wanting, having either lied or made their credibility questionable.
Challenging witnesses is primarily the duty of the accused and/or their counsel. How can the government or minister not see that there is a serious and urgent need for the repeal of, or at least serious amendments to Sosma?
The Essential (Security Cases) Regulations 1975 (Escar), similar to the present Sosma, saw the Malaysian Bar and lawyers protesting in the name of justice and even calling for a boycott of cases that used Escar.
Sosma now ought to be repealed, not simply amended, if we believe in the right to fair trials.
Madpet also calls for the disclosure of information of how many persons have been arrested for offences listed under Sosma as security offences since the act came into force in July 2012, and how many of these have been charged and convicted.
How many had to suffer detention, electronic monitoring, months/years in prison by reason of denial of bail, and at the end of the day were never convicted of the offence they were suspected of committing?
There is still no law that provides compensation for these innocent victims for the loss of liberty and other sufferings, which naturally also affected their families, income, employment, and even businesses.
Madpet calls for the enactment of a Criminal Compensation Act that will provide for these victims.
On an urgent basis, Madpet calls for the repeal of mandatory exclusion of bail, and the restoration of the role of magistrate in the issuance of remand orders.
Madpet also calls for an urgent review of the listed security offences in Schedule 1 of Sosma, and the removal of offences like having books or badges and offences, where no victim was killed or grievously hurt from the said list.
The urgency of the review and amendment is paramount, as many still languish in prison without bail because of Sosma as they await the end of their trials, which may at the end find them not guilty.
There has been unnecessary suffering also for families of these detainees, including children, and also for Malaysia financially, among others, in the cost for providing food and board for these detainees.
Note that in 2017, statistics suggested that 29.8% (17,663) of those in Malaysian prisons are “pre-conviction/remand prisoners, not persons convicted and serving their prison sentences”.
For many of these, poverty is the reason they simply cannot afford bail. – The Vibes, December 14, 2022
The statement is issued by Charles Hector for and on behalf of Madpet (Malaysians Against Death Penalty and Torture) - Vibes, 14/12/2022
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