Monday, December 16, 2019

Malaysian Bar, help SOSMA detainees apply for BAIL now - ABOLISH SOSMA fast? Moratorium now...

Malaysian Bar should now make sure that all those languishing in detention without Bail until their trial is over knows that they can  now apply for Bail following this High Court detention. Legal Aid lawyers should step forward and apply for Bail for all their clients....

SOSMA should have long been repealed, immediately after the new Pakatan Harapan government came into power in May 2018 - their delay in repealing this draconian legislation means so many? Thousands? Hundreds...Well, will this OPEN PH government reveal how many are languishing in detention - innocent until proven guilty....while they await for trial charged under any one of the hundred over offences in the Penal Code and other laws that draconian SOSMA chose to list as 'security offences'...

Remember the Malaysian lawyers resolved to boycott all trials that used ESCAR(
Essential (Special Cases) Regulations 1975) - a similar law like the draconian SOSMA...

Tell us now - how many people were arrested and detained using SOSMA, who were never even charged in court? Were they compensated - we need a law that provides for compensation for loss of liberty...loss of income...etc for all these INNOCENT persons wrongfully deprived of their liberty?

Tell us now, how many persons charged and tried by SOSMA identified 'security offences' and found NOT GUILTY - Should they not be compensated too?

Remember, when a person is detained, it also affects his income, his business - as such his family/dependents well-being? Should not those who are not charged, and/or those charged but found NOT GUILTY be compensated for their detention and losses?

This applies not just for SOSMA cases but for all criminal cases - for the police can always INVESTIGATE without requiring people to spend time in lock-up and/or detention - look at the Najib case?


Press Release
Giant Leap for Rights of Accused Persons and in the Quest for Legal and Institutional Reforms

The Malaysian Bar is heartened to note that the Attorney General has, in his capacity as Public Prosecutor, decided against pursuing an appeal of the case concerning the availability of bail for unbailable offences.1

The constitutionality of section 13 of the Security Offences (Special Measures) Act 2012 (“SOSMA”) which absolutely excludes bail for the various security offences contained in the Penal Code, had been challenged in the wake of the arrest and detention of 12 individuals with alleged links to the Liberation Tigers of Tamil Eelam (“LTTE”).

As reported several weeks ago, the High Court in that case had decided that the provision was unconstitutional as it violated the “the basic structure of the Constitution” — a doctrine that propagates the separation of powers and the vesting of judicial power in the Courts, as well as the fundamental liberties entrenched in the Federal Constitution.

The consequence of this decision by the Attorney General is manifold.  Firstly, accused persons who have been arrested and detained under SOSMA may now apply for bail and have such an application ventilated and decided in a court of law.  The decision of whether or not bail should be granted will ultimately rest on the sitting Judge to decide, based on the evidence before him/her.  Secondly, an accused person will have the right to be heard, even before he/she is formally charged with an offence, and/or pending appeal.  This form of check and balance between the might of the Executive and rights of the accused is absolutely necessary in our criminal justice system which presumes that an accused is innocent until proven guilty.

Pending the repeal and/or amendments of these laws, the Malaysian Bar looks forward to such reformist efforts by the Government to remedy the stripping of the doctrines, duties and rights contained in the Federal Constitution.

The Malaysian Bar therefore, views this decision by the Attorney General as a giant leap for the rights of accused persons and in our quest for legal and institutional reforms.

The Malaysian Bar nevertheless persists in its call for the urgent repeal of SOSMA.

Abdul Fareed Abdul Gafoor
Malaysian Bar
16 December 2019

1Bail under SOSMA”, Media Release, Attorney General’s Chambers, 13 December 2019.

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