SOSMA is again relevant, when it was disclosed that current BERSIH Chairperson is now being detained under SOSMA.
A perusals of news reports and comments indicates that there still a lot of confusion about SOSMA - and as such, I would try to shed some light about this draconian legislation, which I believe should be repealed...Read on..
SOSMA is NOT the new ISA - it does not provide for offenses and certainly does not provide for the Death Penalty. It is like the Essential Security Cases Regulations (ESCAR)
SOSMA is not an offence - but a law that provide for special procedures when it comes to persons arrested and detained who are being investigated for security offences - and this security offences is defined in the SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012(SOSMA) as being offences listed under Chapter VI and VIA of the Penal Code.
Under normal Criminal Procedure Code, police can only arrest and detain a suspect for 24 hours, and then the police need to apply for a further remand order from the Magistrate. If satisfied, the Magistrate may order further remand for a few days. If more time, the police goes again and applies for further remand...and this may go on - but the maximum period for remand is 14 days.
With SOSMA - the police need not go get a Magistrate order - now, all that is needed is for a police officer of or above the rank of Superintendent of police to extend the period of detention...No need to get a Magistrate's order.
Now, SOSMA uses the word 'may' ...so it is an option available to the police. They need not extend the period of detention...in fact, they do not even have to rely on SOSMA and could still use the normal procedure in the investigation of any criminal offence...
4(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.
See related posts:-
SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012
Preamble
An Act to
provide for special measures relating to security offences for the
purpose of maintaining public order and security and for connected
matters.
[31 July 2012, PU(B) 256/2012]
WHEREAS
action has been taken and further action is threatened by a substantial
body of persons both inside and outside Malaysia-
(1) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property;
(2) to excite disaffection against the Yang di-Pertuan Agong;
(3) which is prejudicial to public order in, or the security of, the Federation or any part thereof; or
(4) to procure the alteration, otherwise than by lawful means, of anything by law established;
AND WHEREAS parliament considers it necessary to stop such action;
NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution.IT IS ENACTED by the parliament of Malaysia as follows:-
Section 2 Application
This Act shall apply to security offences.
In this Act, unless the context otherwise requires-
"security offences" means the offences specified in the First Schedule;
FIRST SCHEDULE
(Section 3)
SECURITY OFFENCES
Penal Code [Act 574]:
(i) Offences under Chapter VI
(ii) Offences under Chapter VIA
To know, what these SECURITY offences are, we look at the Penal Code...
PENAL CODE
CHAPTER VI OFFENCES AGAINST THE STATE
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| 121
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Waging
or attempting to wage war or abetting the waging of war against the
Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri
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| 121A
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Offences against the Yang di-Pertuan Agong's person
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| 121B
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Offences against the authority of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri
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| 121C
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Abetting offences under section 121A or 121B
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| 121D
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Intentional omission to give information of offences against sections 121, 121A, 121B or 121C by a person bound to inform
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| 122
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Collecting arms, etc., with the intention of waging war against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri
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| 123
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Concealing with intent to facilitate a design to wage war
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| 124
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Assaulting member of Parliament, etc., with intent to compel or restrain the exercise of any lawful power
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| 124B
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Activity detrimental to parliamentary democracy
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| 124C
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Attempt to commit activity detrimental to parliamentary Democracy
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| 124D
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Printing, sale, etc., of documents and publication detrimental to parliamentary democracy
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| 124E
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Possession of documents and publication detrimental to parliamentary democracy
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| 124F
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Importation of document and publication detrimental to parliamentary democracy
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| 124G
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Posting of placards, etc.
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| 124H
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Dissemination of information
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| 124I
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Dissemination of false reports
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| 124J
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Receipt of document and publication detrimental to parliamentary democracy
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| 124L
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Attempt to commit sabotage
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| 124N
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Attempt to commit espionage
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| 125
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Waging war against any power in alliance with the Yang di-Pertuan Agong
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| 125A
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Harbouring
or attempting to harbour any person in Malaysia or person residing in a
foreign State at war or in hostility against the Yang di-Pertuan Agong
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| 126
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Committing depredation on the territories of any power at peace with the Yang di-Pertuan Agong
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| 127
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Receiving property taken by war or depredation mentioned in sections 125 and 126
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| 128
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Public servant voluntarily allowing prisoner of State or war in his custody to escape
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| 129
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Public servant negligently suffering prisoner of State or war in his custody to escape
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| 130
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Aiding escape of, rescuing, or harbouring such prisoner
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| 130A
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Interpretation of this Chapter
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| CHAPTER VIA OFFENCES RELATING TO TERRORISM
Suppression of terrorist acts and support for terrorist acts
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| 130B
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Interpretation in relation to this Chapter
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| 130C
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Committing terrorist acts
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| 130D
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Providing devices to terrorist groups
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| 130E
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Recruiting persons to be members of terrorist groups or to participate in terrorist acts
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| 130F
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Providing training and instruction to terrorist groups and persons committing terrorist acts
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| 130FA
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Receiving training and instruction from terrorist groups and persons committing terrorist acts
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| 130FB
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Attendance at place used for terrorist training
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| 130G
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Inciting, promoting or soliciting property for the commission of terrorist acts
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| 130H
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Providing facilities in support of terrorist acts
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| 130I
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Directing activities of terrorist groups
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| 130J
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Soliciting or giving support to terrorist groups or for the commission of terrorist acts
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| 130JA
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Travelling to, through or from Malaysia for the commission of terrorist acts in foreign country
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| 130JB
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Possession, etc. of items associated with terrorist groups or terrorist acts
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| 130JC
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Offence to build, etc. conveyance for use in terrorist acts
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| 130JD
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Preparation of terrorist acts
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| 130K
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Harbouring persons committing terrorist acts
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| 130KA
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Member of a terrorist group
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| 130M
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Intentional omission to give information relating to terrorist acts
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Suppression of financing of terrorist acts
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| 130N
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Providing or collecting property for terrorist acts
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| 130O
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Providing services for terrorist purposes
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| 130P
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Arranging for retention or control of terrorist property
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| 130Q
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Dealing with terrorist property
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| 130QA
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Accepting gratification to facilitate or enable terrorist acts
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| 130R
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Intentional omission to give information about terrorist property
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| 130S
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Intentional omission to give information relating to terrorism financing offence
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| 130T
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Offences by body corporate
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| 130TA
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Non-application of Offenders Compulsory Attendance Act 1954 and sections 173A, 293 and 294 of the Criminal Procedure Code | | | | | | |
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uu
What is the powers of arrest and detention under SOSMA?
Section 4 Power of arrest and detention (SOSMA)
(1) A
police officer may, without warrant, arrest and detain any person whom
he has reason to believe to be involved in security offences.
(2) A
person arrested under subsection (1) shall be informed as soon as may
be of the grounds of his arrest by the police officer making the arrest.
(3) No person shall be arrested and detained under this section solely for his political belief or political activity.
(4)
The person arrested and detained under subsection (1) may be detained
for a period of twenty-four hours for the purpose of investigation.
(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.
(6) If the police officer is of the view that
further detention is not necessary under subsection (5), the person may
be released but an electronic monitoring device may be attached on the
person in accordance with subsections (7) and (8) for the purpose of
investigation.
(7) If the police officer intends to attach an
electronic monitoring device on the person upon his release, he shall
submit a report of the investigation to the Public Prosecutor.
(8)
Upon receipt of the report under subsection (7), the Public Prosecutor
may apply to the court for the person to be attached with an electronic
monitoring device in accordance with the provisions in Part III for a
period which shall not exceed the remainder of the period of detention
allowed under subsection (5).
ILLUSTRATION
D
is arrested for a security offence. After twenty-four hours of
detention a Superintendent of Police extended his detention for another
seven days. At the expiry of the seven-day period D was released
but he was still needed to assist the investigation. Upon receipt of a
report from the police officer, the Public Prosecutor may apply to the
Court to attach an electronic monitoring device on D. The Court may allow the electronic monitoring device to be attached to D up to a period of twenty-one days.
(9)
One week before the expiry of the period of detention under subsection
(5), the police officer conducting the investigation shall submit the
investigation papers to the Public Prosecutor.
(10) This section
shall have effect notwithstanding anything inconsistent with Articles 5
and 9 of the Federal Constitution and section 117 of the Criminal
Procedure Code [Act 593].
(11)
Subsection (5) shall be reviewed every five years and shall cease to
have effect unless, upon the review, a resolution is passed by both
Houses of parliament to extend the period of operation of the provision.
(12) For the purpose of this section, "political belief or political activity" means engaging in a lawful activity through-
(a)
the expression of an opinion or the pursuit of a course of action made
according to the tenets of a political party that is at the relevant
time registered under the Societies Act 1966 [Act 335] as evidenced by-
(i) membership of or contribution to that party; or
(ii) open and active participation in the affairs of that party;
(b) the expression of an opinion directed towards any Government in the Federation; or
(c) the pursuit of a course of action directed towards any Government in the Federation.
SOSMA - What are the different sections in this law?
Section Index
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Preamble
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| PART I PRELIMINARY
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| 1
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Short title and commencement
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| 2
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Application
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| 3
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Interpretation
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| PART II SPECIAL POWERS FOR SECURITY OFFENCES
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| 4
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Power of arrest and detention
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| 5
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Notification to next-of-kin and consultation with legal practitioner
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| 6
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Power to intercept communication
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| PART III SPECIAL PROCEDURES RELATING TO ELECTRONIC MONITORING DEVICE
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| 7
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Special procedures relating to electronic monitoring device
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| PART IV SPECIAL PROCEDURES RELATING TO SENSITIVE INFORMATION
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| 8
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Sensitive information to be used as evidence by the Public Prosecutor
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| 9
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Notice of accused's intention to disclose sensitive information
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| 10
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Hearing of the disclosure of sensitive information by the accused
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| 11
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Sensitive information that arises during trial
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| PART V TRIAL
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| 12
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Trial of security offences
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| PART VI SPECIAL PROCEDURES RELATING TO PROTECTED WITNESS
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| 14
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Evidence of witness given in a special manner
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| 15
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Identification by witness where evidence is taken in camera
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| 16
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Protection of witness' identity
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| PART VII EVIDENCE
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| 17
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Inconsistency with the Evidence Act 1950
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| 18
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Statement by any person who is dead, etc.
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| 19
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Conviction based on testimony of a child of tender years
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| 20
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Documents seized during raid or in the course of investigation
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| 21
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Evidence of identification of accused or other person
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| 22
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Search list to be admissible as evidence
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| 23
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Non-production of exhibit
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| 24
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Admissibility of intercepted communication
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| 25
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Admissibility of documents produced by computers and of statements contained therein
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| 26
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Evidence of accomplice and agent provocateur
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| PART VIII MISCELLANEOUS
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| 27
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Power to record statements and confessions
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| 28
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Protection of informer
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| 29
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Access by police to detainees or prisoners
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| 30
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Detention pending exhaustion of legal process
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| 31
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Power to make regulations
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FIRST SCHEDULE
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