Media Statement – 14/12/2022
SOSMA must be repealed now, if not seriously amended to remove mandatory denial of bail, and restoration of Magistrate’s role in detention for purpose of investigation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 (Malaysians Against Death Penalty and Torture) is disappointed that Home Minister Saifuddin Nasution Ismail of the Pakatan Harapan(PH) - BN Plus government indicated that he has no intention of reviewing the Security Offences (Special Measures) Act 2012 (SOSMA), which is a law to provide for special measures relating to security offences. (FMT,Malaysiakini 13/12/2022)
Saifuddin is right that SOSMA is not a Detention Without Trial law or a preventive detention law like Prevention of Crime Act (POCA) or Prevention of Terrorism Act 2015 (POTA), as all arrested for SOMA’s 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 which 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MADPET is of the view that SOSMA need to be repealed, and persons charged under these Security Offences, now being some offences under Penal Code and Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007; and all offences under 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 Magistrate remand orders for further detention for investigation purpose.
BAIL – Free on Condition You Turn Up For Trial
BAIL – Parliament, in section 13(1) of SOSMA states ’(1) 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’, Courts jurisdiction to grant bail or not have 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 This provision needs to be repealed, as the law specifying the offences already determines which offences are bailable or unbailable, and the Courts still has the power to determine whether bail be granted, and it has 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 in his possession a book to languish in prison without bail. Note, 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 Within 24 hours after Arrest, No further detention Without Magistrate’s Order
Brought before a Magistrate within 24 hours of arrest, and no further detention for purpose of investigation without a Magistrate’s remand order is very important to prevent abuse by the police, including torture and for the protection of the suspect’s rights. Malaysia also did amend the Criminal Procedure Code in 2007 to further limit the maximum number of days of remand that can be obtained on first application and second application, based on the maximum sentences of the offence suspected.
Section 117(2) of the Criminal Procedure Code states, ‘…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.";
SOSMA however do not even require the arrested suspect to be brought before the Magistrate within 24 hours, and for further detention, all that is required is for ‘…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) SOSMA).
Hence, the obligation to produce suspects within 24 hors of arrest, and that further detention as allowed by Magistrate for purposes of investigation is not there in SOSMA. Note that besides the Criminal Procedure Code, Malaysia’s Federal Constitution in Article 5(4) states ‘ (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…’
MADPET demands that the provision that denies bail absolutely be repealed, and the role played by the Magistrate to protect suspect’s rights, and prevent abuse by the police be restored.
Taking Evidence in Absence of Accussed/Lawyer
SOSMA has many other draconian provisions, including the taking of evidence of unnamed witnesses in the absence of the accused and his/her 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, either they have lied or their credibility became questionable. Challenging of witnesses is primarily the duty of the accused and/or his/her counsel. How can the government or the Minister not see that there is a serious and urgent need for the repeal, or at least serious amendments to SOSMA.
The Essential (Security Cases) Regulations 1975 (Escar), which was 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 SOSMA came into force in July 2012, 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 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 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 removing of offences like having books or badges and offences where there 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 trial which may at the end find them not guilty. Unnecessary suffering also for families of these detainees, including children, and also for Malaysia financially in, amongst others, the cost for providing food and board for these detainees.
Note In 2017, statistics suggest that 29.8%(17,663) of those in Malaysian prisons are 'pre-conviction/remand prisoners, not persons convicted and serving their prison sentence. For many of these, poverty is the reason as they simply cannot afford bail.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Saifuddin defends Sosma, no review in sight
KUALA LUMPUR: Home minister Saifuddin Nasution Ismail has indicated that the government will not be reviewing the Security Offences (Special Measures) Act 2012 (Sosma).
When asked by reporters whether Sosma would be reviewed, he defended it by saying “the law allows the court process to take place”.
He said this was in contrast to the now-defunct Internal Security Act (ISA), which allowed for detention without trial, and the emergency ordinances (EO) which allowed for detention of up to 60 days.
“At the end of the 28 days, there will only be two recommendations for the detainee (under Sosma), which is either to charge them in court or to free them,” he said at a press conference in Bukit Aman.
“People like to compare Sosma with other preventative laws, even though Sosma is not a preventative provision.”
He stressed that people were detained under Sosma following reliable intelligence and evidence and it was for the sake of the country’s peace and security.
“The root of Sosma is to ensure public safety,” he said.
In July, the Dewan Rakyat passed a five-year extension to a provision in Sosma that allowed for a 28-day pre-trial detention.
Sub-section 4(5) of Sosma, which enables police to detain a person suspected of being involved in terrorist activities for a period not exceeding 28 days for investigations, was to have expired on July 31.
On Dec 7, more than 40 people from three families gathered at the Kajang prison to find out why their loved ones had been detained under Sosma for the past six months.
One of the family members, Abe Rameshwary, 42, said her husband and four cousins were detained by the police on June 23, but she claimed that the family was still in the dark as to why they were arrested.
Meanwhile, Tan Eng Huat said his brother had been detained under
Sosma since June 23, but he had not received any explanation from the
police or the home ministry. - FMT, 13/12/2022
Home Minister Saifuddin Nasution Ismail indicated that he has no intention of reviewing the Security Offences (Special Measures) Act (Sosma).
He defended Sosma saying the law allows the court process to take place, unlike others like the now-defunct Internal Security Act (ISA) and emergency ordinances (EO).
“People like to compare Sosma with other preventative laws, even though Sosma is not a preventative provision.
“For example, compared with the ISA or EOs (where someone can be held) of up to 60 days, Sosma is only 28 days.
“At the end of the 28 days, there are only two recommendations, that is to free them (detainees) or to charge them in court.
“If they are brought to court, they can still have access to legal services,” Saifuddin explained in a press conference at Bukit Aman today.
He was making his first official visit to the police headquarters today, where Saifuddin and his deputy Shamsul Anuar Nasarah received a briefing from the inspector-general of police.
Saifuddin said this in response to a question from a reporter on whether he would review Sosma as well as the Independent Police Conduct Commission (IPCC).
‘IPCC to take effect in June’
With regard to the IPCC, Saifuddin merely said it would take effect starting June next year.
Further elaborating on Sosma, he said there are those who were arrested under this law, who have since been released or won their cases in court with the help of their legal counsels.
“Let us focus on the fact that not all Sosma detainees end up in jail because the process is being followed.
“If in the end, after the 28 days of investigation and the court then releases them, the police will comply with the decision,” he said.
However, Saifuddin stressed that arrests under Sosma were made on the basis of reliable intelligence and evidence for the sake of the country’s peace and security.
“I would like to repeat that when any arrest is made, it is of course based on intelligence about any group or activity that is seen to be dangerous or threatening to the safety of the rakyat,” he said.
He also pointed out that under the Federal Constitution, the government is empowered to enact legislation, such as Sosma, which allows pre-trial detention.
Despite Saifuddin’s assertion about Sosma only allowing an individual to be detained for up to 28 days, there have been real-life examples that this is not the case.
During a recent pre-trial case management involving 34 individuals detained under Sosma, family members of the detainees urged the new government to stop using the oppressive law.
Most of the 34 men were detained under Sosma on June 23 this year, while the remaining were nabbed soon after. They were later charged under Section 130(V)(1) of the Penal Code, which carries a jail term of up to 20 years upon conviction.
One of the detainees, a woman, said she was upset that her husband has not been given a trial date despite being in detention for nearly six months.
Back
in April this year, Saifuddin was reported back as saying that Pakatan
Harapan rejected the amendment to Section 4(5) of Sosma, which allows
the police to extend the 28 days period of detention. - Malaysiakini, 13/12/2022
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