Dr Mahathir is wrong about Security Offences (Special Measures) Act (SOSMA) - SOSMA cannot really be compared with the Internal Security Act(ISA)
The ISA provides for Detention Without Trial, and under the ISA, there were also some offences, which did even provide for the death penalty.
SOSMA, on the other hand, provides only for 'special measures' ...which undermines fair trial principles and requirements to ensure justice...
SOSMA is a law that provides for ‘special measures relating to security offences for the purpose of maintaining public order and security and for connected matters’. There are ‘special measures’ from the point of arrest until the end of trial, which do undermine the rights of the suspect and/or accused, including the right to a fair trial.
When SOSMA is used, the police no longer need to get a Magistrate’s order for the purposes of remanding a suspect for more than 24 hours. All that is required by SOSMA for detention beyond 24 hours is that ‘a police officer of or above the rank of Superintendent of Police…’ to ‘…extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation’. As such, the necessary check and balance provided by the Magistrate and the courts to ensure that the police do not abuse their powers and/or unjustifiably deny a suspect his freedom is gone.
SOSMA also provides that no bail will be granted for persons charged with security offences, save for very limited exceptions. SOSMA also allows the court to accept evidence of witnesses, in the absence of the accused person and his lawyer. In essence, SOSMA allows for the abandonment of many of the fundamental requirements, safeguards and rights necessary to ensure a fair trial. - OPPRESSIVE LAWS: Repeal SOSMA & offences criminalizing activities ‘detrimental' democracy’ - MADPET (Malaysia Chronicle)
SOSMA could be used for security offences, and these offences are defined in the Act - the are essentially offences under the Penal Code, Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 and Special Measures Against Terrorism in Foreign Countries Act 2015
SECURITY OFFENCES Penal Code [Act 574]:
(i) Offences under Chapter VIAnti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 [Act 670]:
(ii) Offences under Chapter VIA
(iii) Offences under Chapter VIB
Offences under Part IIIASpecial Measures Against Terrorism in Foreign Countries Act 2015 [Act 770].
What is there in the SOSMA? (List of the Sections of this Act is as follows)
Briefly:-
Arrest and Detention
- Allows for detention of persons up to 28 days - without having to go to court and get a remand order from the Magistrate.
- During this 28 days, alternatively the suspect could be released and an electronic monitoring device be placed on his/her person
Bail - this could be denied except for a person below 18, woman, sick or infirm person
Trial
- Witnesses Identity, Face and even Voice > could be 'hidden' from the accused and his lawyer
Evidence Act requirements could be avoided
Even if set free by the court - could be further detained until the prosecution files an appeal, and until the appeal process ends.
Privacy - gives the power to the police to monitor any of our communications...anytime if there is a belief that we may be committing a 'security offence' - all that is needed is for the prosecutor/police to ' considers that it is likely to contain any information relating to the commission of a security offence...' - would that not lead to some people being continuously monitored?
Preamble
PART I PRELIMINARY
1 Short title and commencement
2 Application
3 Interpretation
PART II SPECIAL POWERS FOR SECURITY OFFENCES
4 Power of arrest and detention
5 Notification to next-of-kin and consultation with legal practitioner
6 Power to intercept communication
PART III SPECIAL PROCEDURES RELATING TO ELECTRONIC MONITORING DEVICE
7 Special procedures relating to electronic monitoring device
PART IV SPECIAL PROCEDURES RELATING TO SENSITIVE INFORMATION
8 Sensitive information to be used as evidence by the Public Prosecutor
9 Notice of accused's intention to disclose sensitive information
10 Hearing of the disclosure of sensitive information by the accused
11 Sensitive information that arises during trial
PART V TRIAL
12 Trial of security offences
13 Bail
PART VI SPECIAL PROCEDURES RELATING TO PROTECTED WITNESS
14 Evidence of witness given in a special manner
15 Identification by witness where evidence is taken in camera
16 Protection of witness' identity
PART VII EVIDENCE
17 Inconsistency with the Evidence Act 1950
18 Statement by any person who is dead, etc.
18A Statement by accused
18B Communications during marriage
19 Conviction based on testimony of a child of tender years
20 Documents or things seized or howsoever obtained
21 Evidence of identification of accused or other person
22 Lists of documents and things
23 Non-production of exhibit
24 Admissibility of intercepted communication and monitoring, tracking or surveillance information
25 Admissibility of documents produced by computers and of statements contained therein
26 Evidence of accomplice and agent provocateur
PART VIII MISCELLANEOUS
27 Power to record statements and confessions
28 Protection of informer
29 Access by police to detainees or prisoners
30 Detention pending exhaustion of legal process
31 Power to make regulations
32 Repeal and savings
FIRST SCHEDULE
SECOND SCHEDULE
Mahathir, is however right, with regard these offences for which Khairuddin is suspected of committing - these new offences only came into being in July 2012. They are vague - with no clear definitions, making it easily abused by the government..
Khairuddin was first arrested and remanded for investigation on 18/9/2015 under section 124C of the Penal Code, being the offence of ‘attempts to commit an activity detrimental to parliamentary democracy or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to fifteen years’. This is one of the new offences included into the Penal Code, which came into effect on 31/7/2012. It is too vague since there seems to be not even a definition as to what really would be an ‘activity detrimental to parliamentary democracy’, and as such could very be easily abused.
On 23/9/2015, when the courts released him after possibly denying the police application for further remand, Khairruddin was immediately re-arrested for allegedly committing offences under Section 124K and 124L of the Penal Code. This would be the offence of committing ‘sabotage’ and attempting to do so respectively. - OPPRESSIVE LAWS: Repeal SOSMA & offences criminalizing activities ‘detrimental' democracy’ - MADPET (Malaysia Chronicle)
...Because if you are accused of sabotage – and sabotage is not defined – you can be jailed for life," Dr Mahathir told a press conference in Kuala Lumpur today..."So Khairuddin is facing this problem. What he has done of course can be called sabotage because the definition is not given. The government can make a definition, that if you do something like this, it is sabotage, and therefore you should be jailed for life." Dr Mahathir said
ISA CANNOT BE BETTER - HERE MAHATHIR IS WRONG
How can the ISA, which provided for Detention Without Trial - which allows the government to detain people indefinitely...be better. A person detained under the ISA could not also challenge the reasons for the detention in court. These 'reviews' that Mahathir is talking about is not reviews by the courts - but by essentially the 'government'.
In any other cases, the courts will determine the guilt or the innocence of a person - and if not satisfied, one can appeal to a higher court...still not satisfied - still can appeal."So the people do not like the ISA before, where you get two years and review and all that, and you may even be released before two years. Now you have the possibility of being jailed for the whole life."
Under the ISA - the one who decides is the MINISTER(the Executive) - the police and prosecutors are all under the Executive... Hence, there is no 'check and balance' by the Judiciary even about the alleged reasons for the detention.
So, a person totally innocent could arrest and kept in detention under the ISA on some baseless allegations - and nobody can do anything about it. [In other cases, when someone is accused of doing something against the law, there is the obligation for the prosecution to prove this to the court, and the accused will have the opportunity to defend himself...and ultimately, the Judge decides..]
So, of course, ISA is far WORSE... people can be detained indefinitely....
Sosma worse than ISA, Dr Mahathir says after Khairuddin’s arrest
Tun
Dr Mahathir Mohamad says the scrapping of the ISA has only led to it
being replaced by an even worse law. – The Malaysian Insider pic,
September 30, 2015."Because of the detention of Khairuddin, I studied this and I found it worse than the ISA. Because if you are accused of sabotage – and sabotage is not defined – you can be jailed for life," Dr Mahathir told a press conference in Kuala Lumpur today.
"So Khairuddin is facing this problem. What he has done of course can be called sabotage because the definition is not given. The government can make a definition, that if you do something like this, it is sabotage, and therefore you should be jailed for life." Dr Mahathir said critics of the ISA successfully pushed for the Act, which allows detention without trial, to be abolished in 2011, under Prime Minister Datuk Seri Najib Razak's leadership.
But the scrapping of the ISA only led to it being replaced by an even worse law, said the country's longest-serving prime minister.
"So the people do not like the ISA before, where you get two years and review and all that, and you may even be released before two years. Now you have the possibility of being jailed for the whole life."
Dr Mahathir added that he may very well be arrested under Sosma himself, given the comments he made to the press of late about Najib and the government.
He admitted he was not prepared for such a possibility given his age and health, but added that even "nyanyok people", or people with dementia, could not escape the brunt of the law.
"If I am guilty I will have to go for life imprisonment... I'm not ready, I'm old, not very well, unable to think, nyanyok, you know?
"But even nyanyok people have no excuse for saying the wrong thing," Dr Mahathir said.
Khairuddin was rearrested last Wednesday under Sosma for investigations into alleged attempts to sabotage the government by lodging reports with foreign investigators against debt-ridden 1MDB.
The former Batu Kawan Umno vice-chairman was first arrested on September 18, and rearrested on Wednesday under Sosma, a preventive detention law that allows for detention without trial for up to 29 days.
Khairuddin first lodged a police report against the Finance Ministry-owned 1MDB in December last year, and was subsequently removed from his Batu Kawan Umno vice chief position for being declared a bankrupt. He recently lodged reports with authorities in Hong Kong, Switzerland, France and the United Kingdom. – September 30, 2015.
- See more at:
http://www.themalaysianinsider.com/malaysia/article/sosma-worse-than-isa-dr-mahathir-says-after-khairuddins-arrest#sthash.XwceUjxL.dpuf
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