MADPET says IGP is Wrong, SOSMA must be Repealed

Media Statement – 22/7/2019

IGP is Wrong, SOSMA must be Repealed

MADPET is appalled by the fact that Inspector General of Police Datuk Seri Abdul Hamid Bador is trying to lobby that the draconian Security Offences (Special Measures) Act (SOSMA) 2012, which the Pakatan Harapan in their Election Manifesto promised will be repealed, should be retained. He said, amongst others, that “... if Sosma is taken away from us, it means you take away our 'guns' to fight terrorists...’.

He claimed that ‘…The Counter Terrorism (E8) Division of the Bukit Aman Special Branch department has racked up an impressive number of arrests and stopped planned attacks from happening here…’(Malay Mail, 21/7/2019).

This claim, however, is not substantiated by the number of convictions after an open trial. If SOSMA only was used, then there must be a trial. Preparing or planning for a crime is also a crime in Malaysia which will be tried. Maybe, the government could give us the statistics of the number of persons who have tried and convicted for terrorist offences, including the offence of preparing to carry out terrorist actions.

Sadly, the IGP also seem to be unhappy with the abolition of the Internal Security Act (ISA), that draconian detention without trial(DWT) have been abolished by the then Barisan Nasional government, who then simply extended the scope of POCA, another DWT law, and enacted also enacted a new DWT law being POTA. MADPET is now concerned about the suitability Abdul Hamid Bador as Malaysia’s Inspector General of Police, noting that this was a political appointment.

The IGP also recently said that the arrest and detention of Maria Chin Abdullah, using SOSMA, was justified. He forgets that the now Member of Parliament Maria had after her release sued the government with regard her arrest and detention, and the government has since agreed to pay her compensation of ‘…RM25,000 in damages and RM5,000 in costs to Petaling Jaya MP Maria Chin Abdullah over her detention in 2016 under the Security Offences (Special Measures) Act 2012…’ (Sosma)(Malay Mail, 18/2/2019). This is an indication or rather an admission that the government has done wrong in arresting and detaining her using SOSMA.

Hence, what the IGP says now seems to be against the current government position OR alternatively an allegation that the government acknowledgement of fault and the payout of compensation was wrong. Was Maria then accorded ‘special treatment’ because she, who was then the Chairperson of BERSIH, had since been elected as a Pakatan Harapan Member of Parliament.

SOSMA has, amongst others, 3 main draconian elements being:-

1-      Removes the requirement of bringing before a Magistrate within 24 hours, hence ousting the judicial authority of Magistrates to consider whether to allow further remand. Arrested suspect needs to be brought before a Magistrate 24 hours after arrest. During remand applications by the police to enable a suspect to be kept in detention for the purpose of investigation, the Magistrates decides after hearing the police, the suspect(or his/her lawyer) and then makes the appropriate just order – no further remand or remand for how many days. In the case of SOSMA list of ‘security’ offences, there is  no need to bring before a Magistrate, and all that is required is ‘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 twenty-eight days, for the purpose of investigation.’[Section 4(5)]

2-      Denial of Bail for persons charged in court – In ordinary criminal cases, the accused is generally entitled to bail, but no bail, if one is charged with any one of over 70-100  ‘security’ offences listed in SOSMA. Section 13(1) states ‘(1) Bail shall not be granted to a person who has been charged with a security offence.’  

3-      Allows the use of Evidence that is not allowed by our Evidence Act in criminal trials, and also allows for ‘special procedures’ during trial including the ability for ‘court shall hold an inquiry in camera by questioning the witness concerned or any other witness in the absence of the accused and his counsel’. That means the lawyer and the accused cannot even cross-examine or challenge the evidence. It will not be a fair trial.

The need for the police to bring the arrested before a Magistrate within 24 hours is a right provided for in the Federal Constitution, and our Criminal Procedure Code. To just trust the police will exercise their power rightly is not something that any reasonable person can accept, and that is why the right to be brought before a Magistrate within 24 hours exist – and why the Magistrate is empowered to evaluate the complete facts to determine whether further remand is allowed or not, and for how long.

The legal principle that one is presumed innocent until found guilty by a court – not the police or the government. This principle must always be respected.

The Barisan Nasional government also introduced a new kind of offence, being ‘activities detrimental to parliamentary democracy’, which is just too vague and is open to abuse. This must certainly be repealed. There, small offences like receipt of publication detrimental to parliamentary democracy is also a SOSMA listed ‘security’ offence. MADPET calls for the repeal of Section 124B to 124J of the Penal Code, all the offences concerning ‘activities detrimental to parliamentary democracy’.

In Malaysia, there is still no criminal compensation scheme that will compensate persons who have been detained wrongfully by the police or in prison. After 28 days in detention by police, one is not charged but released, and this suggest that the detention was wrong. After languishing is prison because SOSMA denies bail, and the court finds you not guilty. It is unjust that an innocent man is not compensated for his loss of liberty.

Remember that these suspects or those that languish in prisons because bail is denied are fathers, mothers, spouses and siblings, who do have responsibility to families and dependents. Prolonged detention can result in loss of employment, income and also business.

Whilst acknowledging the right of the Inspector General of Police has the right to his personal opinion, the government should not falter in doing justice by the abolition of SOSMA and all Detention Without Trial Laws

Therefore, MADPET

- Reiterates the call for the immediate repeal of Security Offences (Special Measures) Act (SOSMA) 2012;

- Call for the repeal of Section 124B to 124J of the Penal Code, all the offences concerning ‘activities detrimental to parliamentary democracy’;

- Reiterates the call for the repeal of all Detention Without Trial laws like the Prevention of Crime Act 1959 (POCA), Prevention of Terrorism Act 2015(POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985, which also denies the right for the victim to file for judicial review against the reasons used for his/her detention/restrictions.

- Calls on the government to ensure justice is done and ensure that everyone is accorded the right to a fair trial.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)