Sosma cannot bypass normal procedures, safeguards, rights (FMT News)
OPPRESSIVE LAWS: Repeal SOSMA & offences criminalizing activities ‘detrimental' democracy’ - MADPET (Malaysia Chronicle)
HAKAM - ON THE USE OF SOSMA & ARREST OF 1MDB CRITIC - Release Khairuddin
Press Release | SOSMA Must Not be Misused to Silence Critics of 1MDB
Friday, 02 October 2015 05:36pm | |
The
Malaysian Bar is perturbed by the arrest and detention of Dato’ Sri
Khairuddin Abu Hassan (“Dato’ Sri Khairuddin”), a politician and vocal
critic of 1Malaysia Development Berhad (“1MDB”).
Dato’
Sri Khairuddin was arrested by the police on 18 September 2015 and
remanded under Section 117 of the Criminal Procedure Code (“CPC”) for
six days. It has been reported that the police initially alleged that
he had committed an offence under Section 124C of the Penal Code
(attempt to commit activity detrimental to parliamentary democracy)
because he had lodged reports with the law enforcement authorities in
Switzerland, United Kingdom, France, Singapore and Hong Kong on the
alleged financial impropriety relating to 1MDB.[1] Prior to his
arrest, he had been barred by the Department of Immigration, without
reason, from travelling outside Malaysia.[2] It has also been reported
that he was scheduled to travel to New York for a meeting with the
Federal Bureau of Investigation.[3]
The
Inspector General of Police, Tan Sri Khalid Abu Bakar, was reported to
have said that Dato’ Sri Khairuddin’s attempt to solicit foreign
investigations into 1MDB was an act of sabotage and a danger to
Malaysia’s economy and sovereignty, as well as a disservice to the
country’s law enforcement agencies.[4]
Dato’
Sri Khairuddin was subsequently released by the Magistrates’ Court on
23 September 2015, without being charged. However, he was immediately
re-arrested under Section 4 of the Security Offences (Special Measures)
Act 2012 (“SOSMA”) and detained for up to 28 days.[5] It has been
reported that he is being detained for investigations into allegations
of having committed offences under Sections 124K (sabotage) and Section
124L (attempt to commit sabotage), both under the Penal Code.
Investigative detention under SOSMA is for the purposes of “security
offences” under Parts VI and VIA of the Penal Code.
Dato’ Sri Khairuddin filed a habeas corpus
application on 28 September 2015, in which he contended that his
detention is a misuse of SOSMA because his actions are not in any way
“terrorist activities”. He further asserted that his detention is
actuated by bad faith, and was an afterthought by the authorities.
It
is unclear whether the police have obtained or seen the reports that
Dato’ Sri Khairuddin purportedly lodged with the various foreign
enforcement agencies. The police also appear to be prevaricating
between allegations of offences under Section 124C, and then under
Sections 124K and 124L. This raises serious concerns over the
credibility of the investigations. Police investigations cannot be
based on surmise or conjecture. An accused person cannot be arrested
and held in remand under the CPC or for investigative detention under
SOSMA for the police to begin investigations to discover what, if any,
offence has been committed. This would be a misuse of the investigative
powers of the police, and would be akin to punishment of the accused
person prior to a finding of guilt for any offence.
Moreover,
SOSMA should not be misused as an extension to remand after the remand
has been terminated by the court. This would be oppressive and unjust.
Indeed, it harks back to the dark days of the Internal Security Act
1960 (“ISA”), when detainees were subjected to immediate arrest upon
succeeding in their habeas corpus applications and being released
by the court. SOSMA should not be abused in any manner, including the
manner that the ISA was abused.
It
is also to be noted that Dato’ Sri Khairuddin had lodged a report with
the police over the alleged mismanagement of 1MDB finances as far back
as 12 December 2014.[6] Two months later, he was sacked as UMNO Batu
Kawan Division Vice Chairman. In this regard, Section 4(3) of SOSMA
prohibits detention for any political belief or political acts. It
would appear that this provision has been inexplicably ignored in this
case.[7]
The
lodging of reports with foreign enforcement agencies against a
Malaysian corporate entity is not prohibited by our laws and cannot be
regarded as being “activity detrimental to parliamentary democracy” or
“sabotage” or “attempt to commit sabotage”. In this regard:
Even
with this loose definition, it is incredible, and a quantum leap in
logic, to hold that lodging of reports with foreign enforcement
authorities is tantamount to sabotage.
Moreover,
Sections 124C, 124K and 124L are found in Part VI of the Penal Code,
which essentially deals with offences against the State. The lodging of
reports against a corporate entity cannot be regarded as an act against
the State, even if the company is owned by the State.
It
would therefore appear that the grounds for the arrest and detention of
Dato’ Sri Khairuddin cannot be justified. The action taken against
Dato’ Sri Khairuddin is widely perceived as the latest attempt to
silence dissent and harass critics who seek answers to the allegations
of financial impropriety relating to 1MDB.
Further,
the apparent misuse of SOSMA in a case that does not concern “security
offences” has a chilling effect, inasmuch as it discourages witnesses or
whistleblowers from providing information or lodging reports against
1MDB. It also gives the perception that the mere act of raising
questions on 1MDB will be viewed as an attack against the Government,
and that the Government will not hesitate to use legislation — including
those intended for “security offences” — against critics of 1MDB.
The Malaysian Bar urges the police to release Dato’ Sri Khairuddin immediately, and to cease the misuse of SOSMA.
Steven Thiru
President
Malaysian Bar
2 October 2015
Ex-Umno leader lodges police report in London over 1MDB, PetroSaudi
”, The Malaysian Insider, 22 August 2015.(c) “ Umno man takes 1MDB fight on to France, UK
” MalaysiaKini, 22 August 2015.(d) “ Umno man files report in S'pore on PM's account
”, MalaysiaKini, 26 August 2015.
(e) “
Khairuddin lodges reports against Najib, Jho Low in HK
”, Free Malaysia Today, 31 August 2015.
[2] “
Khairuddin, Matthias Chang allegedly barred from leaving country
”, The Star Online, 18 September 2015.
[3] “
Malaysia Blocks Critic of Prime Minister From Taking Case to U.S
.”, New York Times, 18 September 2015.
[5] “
Khairuddin rearrested under Sosma moments after court orders his release
”, Malay Mail Online, 23 September 2015.
[6] “
Penang Umno leader lodges report against 1MDB
”, The Malaysian Insider, 12 December 2014.
[7] “
As predicted, Sosma used against political dissidents
”, MalaysiaKini, 25 September 2015. |
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