Release 2 Wakil Rakyat (Elected Peoples’ Representative) Detained under SOSMA

Media Statement – 10/10/2019

Release 2 Wakil Rakyat (Elected Peoples’ Representative) Detained under SOSMA

Immediate moratorium on use of SOSMA pending repeal

MADPET (Malaysians Against Death Penalty and Torture) condemns the continued use of  the draconian Security Offences (Special Measures) Act 2012[SOSMA], and the recent arrest of Negri Sembilan DAP deputy chairman and Seremban Jaya assemblyman, P Gunasekaran, and Gadek assemblyman G Saminathan.(New Straits Times, 10/10/2019).

If SOSMA is used, then the police do not even have to bring the person arrested before the Magistrate within 24 hours, to obtain a remand order to keep them in detention for further investigations.  

After 24 hours, section 4(5) of SOSMA states, ‘(5) Notwithstanding subsection (4), 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.’. Hence, there is no need to even get a Magistrate’s remand order. The power for further remand is removed from the Magistrate and transferred to a mere police officer.

Our Malaysian Federal Constitution in Article 5(4), states amongst others, ‘…(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four 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…’.

Our Criminal Procedure Code deals with what happens after arrest if further detention order is required by police, whereby section  ‘(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate.’ The arrested suspect (and/or lawyer), the public prosecutor and the police all have a right to be heard before the Magistrate decides on a remand application.

However, if the police rely on SOSMA, then there is no more the requirement for the police to bring the person arrested before the Magistrate within 24 hours. The police can simply continue to detain the ‘suspect’ of any one of the about 70-100 ‘security offences’ listed now in SOSMA for up to 28 days.

The need to bring before a Magistrate within 24 hours and the need for application to the Magistrate for further remand orders, gives the Magistrate the opportunity to ensure no police wrongdoings, and that these further detentions are really needed for investigation purposes and not for some  other ‘wrong’ or illegal objectives, including maybe the ‘torture’ of suspects.

It is important to note that such detention is for investigation only – not for punishment or even reasons like ‘rehabilitation’.

There was a problem before where Magistrate simply handed out remand orders for the full 14 days, being the maximum amount of remand permissible. Parliament, in its wisdom amended the Act, and set the maximum remand period that Magistrate can order. Now, even for a murder suspect, the maximum remand order on first application to Magistrate  is 7 days.

Section 117((2) now reads as follows, ‘ The Magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows:

(a) if the offence which is being investigated is punishable with imprisonment of less than fourteen 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; or

(b) if the offence which is being investigated is punishable with death or imprisonment of fourteen 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.

Hence, the importance of the need for judicial monitoring of police or other detaining authorities. The independent Magistrate, who will also give the right to be heard to all concerned will then decide the appropriate remand period for the purpose of investigation. If more time is needed, the police may apply again for further remand.

It must be reminded that police has to power to investigate without even arresting or detaining any suspect.

Najib, our former premier, during the investigations was never detained in police lock-ups demonstrates how Malaysian police can still proceed with investigations without even resorting to remand orders and certainly not SOSMA.

When the government conceded and paid now Member of Parliament Maria Chin Abdullah RM25,000 in damages and RM5,000 in cost, we saw that as an acknowledgement of the evil of SOSMA. (Malay Mail, 18/2/2019).Sadly, we have not heard of other victims of SOSMA being similarly compensated which raises the question whether preferential treatment was accorded to her for being a government Member of Parliament.

Those charged under the Security Offences listed in SOSMA also are also denied 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. This ousts judicial discretion when it comes to granting and refusing bail.

The new Pakatan Harapan could have at least reduced the list of ‘security offences’ to maybe the most serious ones involving violence and firearms. Now, even the possession of books  are listed as ‘security offences’. The Offences concerning ‘activities detrimental to parliamentary democracy’, which was enacted during Najib’s Barisan Nasional Rule, which is vague and ought to be repealed, is also still listed as a ‘security offence’ in SOSMA.

Malaysia ought to respect justice and human rights, which also means that one is presumed innocent until proven guilty after a fair trial. This also must include the needed checks and balances to prevent police abuses which includes the right to be brought before the Magistrate within 24 hours of arrest, and the right to be further remanded only if the Magistrate allows for it after according the right to be heard to all parties, the right to be remanded at any one time in accordance to the limits now in the Criminal Procedure Code, the right to bail and the right to a fair trial.

SOSMA is an affront to justice and human rights, and it should be immediately repealed. Every one arrested, charged and tried should be accorded the same rights and standards as provided for in our Criminal Procedure Code and Evidence Act.

Being elected peoples’ representatives of the ruling Pakatan Harapan coalition, these 2 may soon be speedily released. MADPET calls for the release of all detained under SOSMA. Compensation also should be given to all victims of SOSMA.

Supporting certain peoples’ struggles for justice and human rights in other countries, be it the Tamils of Sri Lanka, the Rohingyas in Myanmmar or the Palestinians should not be considered supporting terrorism or terrorist organisations.

Malaysia need to be careful in determining who are terrorist groups/organizations, and not just accept what governments in that country say or what some powerful nation/s say are terrorists. The list of terrorist groups should be openly listed. Support for ‘terrorist groups’ should really also be confined to purchase of firearms or supporting violence. Making donations to help in the livelihood of people, reading articles and books, attending events, memorials and exhibitions and similar activities should never be considered supporting terrorisms. A review of all matters concerning ‘terrorism’ is something Malaysia need consider.

Therefore, MADPET

Calls on the Malaysian government to immediately release P Gunasekaran, G Saminathan and all others currently arrested and detained by reason of SOSMA;

Calls on Malaysia to immediately repeal Security Offences (Special Measures) Act 2012[SOSMA];

Calls on Malaysia, pending the repeal of SOSMA, to immediately amend SOSMA to restore the right to be brought before a Magistrate within 24 hours of arrest, to restore ‘fair hearing’ during remand proceedings where all have the right to be heard, to ensure that further remand only permissible with Magistrate’s orders, and to limit or reduce the list of ‘security offences’ listed in SOSMA including repealing that vague unjust offences related to ‘activities detrimental to parliamentary democracy’;

Call on Malaysia to repeal Detention Without Trial laws and other laws that denies the right to a fair trial, or tries to evade the requirements of our Criminal Procedure Code and Evidence Act,

Call on the Malaysian government, duly elected by the people, to be strong and act for the wellbeing of the people in accordance to human rights and justice, without being subservient to the wishes and views of the Malaysian police or other enforcement agencies,

Call for an immediate moratorium on the use of SOSMA, and

Call on Malaysia to respect human rights and justice.

Charles Hector

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

Two DAP assemblymen arrested under Sosma [NSTTV] 

 

By Azzman Abdul Jamal, Nurul Fhatihah Zakinan - October 10, 2019 @ 2:29pm

SEREMBAN: Police have arrested two DAP assemblymen from Melaka and Negri Sembilan this morning.

Negri Sembilan DAP deputy chairman and Seremban Jaya assemblyman, P Gunasekaran, was arrested by a team of police officers from Bukit Aman at his house in Kampung Baru Rahang at around 9.58am, while Gadek assemblyman G Saminathan was arrested at his office at around 8.45am.

It was learnt that both were arrested under Security Offences (Special Measures) Act 2012, believed over their alleged links to the now-defunct Liberation Tigers of Tamil Eelam (LTTE), the separatist group which was involved in the decades-old civil war in Sri Lanka.

Negri Sembilan DAP vice-chairman Teo Kok Seong expressed shock over the arrest, saying that Gunasekaran is a respected assemblyman.

“We are not informed on the reason of arrest. We ask that the Royal Malaysian Police (PDRM) clarify this matter and hope Gunasekaran will give full cooperation to the police,” he said in a press conference at Seremban Jaya here.

Meanwhile, Saminathan’s arrest was confirmed by Chief Minister Adly Zahari at the Exco press conference in Seri Negeri, Melaka.

However, Adly could not ascertain the reason of arrest.

Police have arrested two DAP assemblymen from Melaka and Negri Sembilan this morning. - FILE PIC - New Straits Times, 10/10/2019