What happened to BAIL and REMAND hearing and orders mandatory for further detention by police for purpose of investigations?
Security Offences (Special Measures) (Amendment) Bill 2024 was just tabled in Parliament on 9/7/2024 byB Dato' Sri Azalina binti Othman Said - Menteri di Jabatan Perdana Menteri (Undang-Undang dan Reformasi Institusi) , that will amend SOSMA. It was DISAPPOINTING as it will only delete Section 19 - what about the other amendments - See Malaysian Parliament Website
Section 19 Conviction based on testimony of a child of tender years
A conviction obtained based on the uncorroborated testimony of a child of tender years is not illegal, though not given under oath, if the court is of the opinion that the child is possessed of sufficient intelligence and understands the duty of speaking the truth.
And the reason was - Clause 2 seeks to delete section 19 of Act 747 on the conviction of an accused based on an uncorroborated testimony of a child of tender years. This deletion is consequential to the amendment made to the Evidence of Child Witness Act 2007 [Act 676] to insert into the Act the provision to allow the Court to convict an accused on the basis of the uncorroborated evidence of a child witness given upon oath or otherwise. With this amendment, the conviction of a person for any security offence as specified in the First Schedule to Act 747 on the basis of the uncorroborated evidence of a child witness shall be dealt with under the Evidence of Child Witness Act 2007.
Thus, the deletion of Section 19 may not have any real impact...
What we expected was at least the return of the power to court to make decisions on BAIL. Now, for those charged with a SOSMA listed offence is denied BAIL by the Act. Parliament has ROBBED the judge's discretion and powers with regard to BAIL.
This Anwar Ibrahim Pakatan Harapan led government 'promised' in August 2023, and in July 2024 - there is still no amendment.
The federal government has no intention to repeal the controversial Security Offences (Special Measures) Act 2012 (Sosma), Ramkarpal Singh said today.
Instead, the deputy minister in the Prime Minister’s Department (Law and Institutional Reform) said the government plans to introduce two amendments to the law, one of them being the issue of bail.
“We are looking at several aspects, the question on bail is the issue we are looking into now. There are two recommendations. However, in our improvement of the Act, it will proceed in stages accordingly. -Malay Mail, 23/8/2023
Section 13 Bail of SOSMA says
(1) Bail shall not be granted to a person who has been charged with a security offence.
(2) Notwithstanding subsection (1)-
(a) a person below the age of eighteen years;
(b) a woman; or
(c) a sick or an infirm person,
charged with a security offence, other than an offence under Chapter VIA of the Penal Code [Act 574] and the Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770], may be released on bail subject to an application by the Public Prosecutor that the person be attached with an electronic monitoring device in accordance with the Criminal Procedure Code.
With regard to BAIL, in the listed offences under SOSMA there are offences of varying degrees of seriousness. For some offences carry the death penalty or long prison term, but some are minor offences, carrying a maximum of 7 years in prison - which means, one could also be sentenced to a day in prison or a few months.
Now possession of books and paraphernalia is also an offence under SOSMA - and, mind you such possession may be simply about curiosity and in no way indicative that such persons are supporters, or promoters or in any terrorist groups.
BAIL is a fundamental right - because of the presumption of innocence until proven guilty in court after a FAIR TRIAL. Further, in Malaysia, there is NO PROVISION for compensation for persons so detained when ultimately the court finds them NOT GUILTY. Serious criminals were walking around FREE until the final appeal at the Federal Court confirmed their conviction, and send him to JAIL.
In Malaysia, there are bailable and unbailable offences - but in all cases, Courts have the full power and discretion to the granting of Bail. Even persons facing murder charge, in appropriate cases, have been granted bail.
In the SOSMA listed offences, there are serious offences that carry the death penalty or imprisonment for decades, and there are minor offences who on conviction can at maximum be sentenced to 7 years and a minimum of a day.
Remember, that draconian offences of 'activities detrimental to Parliamentary Democracy', which is unjustly vague is also now listed as SOSMA offences.
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. -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...(MADPET)
The other amendment expected - was the return of the power of the Magistrate for detention beyond 24 hours. In normal crimes, police cannot further detain a suspect for more than 24 hours without an application to the Magistrate for a further REMAND ORDER. This allows to ensure that the further detention is only for the purpose of INVESTIGATION, and that the suspect has not been TORTURED or is unnecessarily being detained for any other wrong reasons - like 'punishment'.
4 Power of arrest and detention(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.
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. -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...(MADPET)
Without the return of the power of the Magistrate, REMAND Hearings and no further detention by police safe with order of Magistrate = ABUSE by the police is a RISK, TORTURE is also a RISK..
Article 5(4) of the Federal Constitution states that ' (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:
So, even if SOSMA provides for a maximum of 28 days remand for PURPOSE OF INVESTIGATION, compared to 14 days for all other criminal offences, the importance of the ROLE of the Magistrate and the need for further REMAND orders after remand hearings cannot be denied.
If there is no need to bring before a Magistrate and get the magistrate's authority for further detention - THE RISK OF POLICE ABUSE AND VIOLATION OF THE SUSPECT'S RIGHTS IS VERY HIGH.
Parliament acknowledges this - and thus the amendment to section 117 of the Criminal Procedure Code with regard REMAND
(2) 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.
This amendment came by CRIMINAL PROCEDURE CODE (AMENDMENT) ACT 2006, for before this, Magistrate could at 1st instance order a 14 day remand. Now, maximum remand per application was at most 7 days(for lesser offences 4 days) and, if further remand, apply again to the Magistrate.
PROPOSAL - For SOSMA listed offences, even if the maximum remand is 28 days - but amend the law requiring maybe a maximum remand per application is 7(or 4 days) and further application for remand permitted until a maximum of 28 days. At remand hearing, Magistrate can ensure that the suspect is not simply being detained in the lock-ups - but are truly being investigated. Magistrate can also ensure NO TORTURE - after all, we have many deaths in police custody, and it has been proven that some of these deaths have been caused by the police.
THEN, amending the LIST of SOSMA offences -remove the vague offences or the minor offences - just the SERIOUS offences linked to TERRORISM and maybe ORGANIZED CRIME.
The SOSMA listed offences can also be re-evaluated - and, all them offences about 'activities detrimental to Parliamentary Democracy which is TOO VAGUE - hence easily abused should be repealed, and first removed as a SOSMA listed offence
Section
124 Penal Code was amended to add several new sections that makes
'activities detrimental to parliamentary democracy' an offence, which
came into force on 31 July 2012. The problem is that it is so vague -
for the ruling government can simply make almost any action, including
those highlighting wrongdoings or alleged wrongdoings of the government
into an offence punishable in law...
Remove repressive amendments to CPC, says Suaram? All 'activity detrimental to parliamentary democracy' need bto repealed?
Don't use Section 124B of Penal Code to curb freedomSteven ThiruPublished: Aug 28, 2015 6:24 PM⋅Updated: 5:54 PMCOMMENT The Malaysian Bar deplores the arrest and detention on 25 August 2015 of 17 persons — 16 of whom are reportedly university students — for taking part in a peaceful sit-in outside the Parliament.They were remanded overnight and the police subsequently sought a seven-day extension of the remand. The magistrate granted a remand of three days. The revision application was heard by the High Court yesterday, and the remand period for 16 of the detainees was reduced to two days.
It has been reported that the detainees are being investigated, inter alia, for an activity detrimental to parliamentary democracy, under Section 124B of the Penal Code.
The phrase “activity detrimental to parliamentary democracy” is defined in Section 130A(a) of the Penal Code as “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means”.
When Section 124B was tabled in Parliament in 2012 as an amendment to the Penal Code, the government declared (in Parliament by then de facto law minister Mohamed Nazri Abdul Aziz on April17, 2012) that it would be used to deal with violent offences, such as the assassination of a head of state, a coup d’état, an armed insurgency, or guerrilla warfare, and breaches of constitutional provisions.
Unjustifiable to use Section 124B
There was no intention to inhibit political dissent or peaceful assembly, and a Member of Parliament (MP for Rembau Khairy Jamaluddin) observed, “Kalau nak buat perhimpunan aman atau bersih pun, itu tidak detrimental to parliamentary democracy.”
The resort to Section 124B against the 17 persons, who had assembled peaceably, is therefore unjustifiable.
This provision cannot be misused to erode or dilute the constitutional right — enshrined in Article 10(1)(b), read with 10(2)(b), of the Federal Constitution — to assemble peaceably and without arms. Further, it would be a gross abuse of Section 124B if it were to be used to cause fear or anxiety among members of the public.
In any event, the constitutional validity of Section 124B is questionable. Malaysia is a constitutional democracy, where the Federal Constitution is the supreme law of the land (Article 4(1) of the Federal Constitution).
The concept of parliamentary democracy is only applicable in countries where the Parliament is supreme, such as the United Kingdom.
Thus, Section 124B purports to cover a subject matter — parliamentary supremacy — that is unknown to our constitutional scheme.
It further offends two cardinal principles: criminal law must be clear and precise, and the subject matter of criminal sanction must be known. The uncertainty in Section 124B is exacerbated by the oppressive penal sentence for the offence, which is imprisonment for a term that could extend to 20 years.
Moreover, it is unacceptable for the police to have sought remand orders of one week. The duration sought was excessive, and lends to the widely held perception that the police are freely seeking remand orders to punish persons involved in peaceful assemblies, even before any finding of guilt by a court of law, as well as to further intimidate others who may wish to participate in any public assembly.
The Malaysian Bar strongly urges the police to cease misusing Section 124B, and to respect the right of all Malaysians to assemble peaceably. Democracy is strengthened — not threatened — when Malaysians who wish to assemble in peace may do so without threats of reprisal or unjustified arrest.
STEVEN THIRU is president of the Malaysian Bar. - Malaysiakini, 28/8/2015
Sec. 124B Penal Code 'activity detrimental to parliamentary democracy' must be repealed
| Friday, 28 August 2015 04:14pm | |
 The
Malaysian Bar deplores the arrest and detention on 25 August 2015 of 17
persons — 16 of whom are reportedly university students — for
participating in a peaceful sit-in outside the Parliament. They were
remanded overnight and the police subsequently sought a seven-day
extension of the remand. The Magistrate granted a remand of three days.
The revision application was heard by the High Court yesterday, and
the remand period for 16 of the detainees was reduced to two days.
It has been reported that the detainees are being investigated, inter alia,
for an activity detrimental to parliamentary democracy, under Section
124B of the Penal Code (“Section 124B”). The phrase “activity
detrimental to parliamentary democracy” is defined in Section 130A(a) of
the Penal Code as “an activity carried out by a person or a group of
persons designed to overthrow or undermine parliamentary democracy by
violent or unconstitutional means”.
When
Section 124B was tabled in Parliament in 2012 as an amendment to the
Penal Code, the Government declared that it would be used to deal with
violent offences such as the assassination of a head of state, a coup
d’état, an armed insurgency, or guerrilla warfare, and breaches of
constitutional provisions.[1] There was no intention to inhibit
political dissent or peaceful assembly, and a Member of Parliament had
observed, “Kalau nak buat perhimpunan aman atau bersih pun, itu tidak
detrimental to Parliamentary Democracy.”[2]
The
resort to Section 124B against the 17 persons, who had assembled
peaceably, is therefore unjustifiable. This provision cannot be misused
to erode or dilute the constitutional right — enshrined in Article
10(1)(b), read with 10(2)(b), of the Federal Constitution — to assemble
peaceably and without arms. Further, it would be a gross abuse of
Section 124B if it were to be used to cause fear or anxiety among
members of the public.
In
any event, the constitutional validity of Section 124B is questionable.
Malaysia is a constitutional democracy, where the Federal Constitution
is the supreme law of the land.[3] The concept of parliamentary
democracy is only applicable in countries where the Parliament is
supreme, such as the United Kingdom.
Thus,
Section 124B purports to cover a subject matter — parliamentary
supremacy — that is unknown to our constitutional scheme. It further
offends two cardinal principles: criminal law must be clear and precise,
and the subject matter of criminal sanction must be known. The
uncertainty in Section 124B is exacerbated by the oppressive penal
sentence for the offence, which is imprisonment for a term that could
extend to 20 years.
Moreover,
it is unacceptable for the police to have sought remand orders of one
week. The duration sought was excessive, and lends to the widely held
perception that the police are freely seeking remand orders to punish
persons involved in peaceful assemblies, even before any finding of
guilt by a court of law, as well as to further intimidate others who may
wish to participate in any public assembly.
The
Malaysian Bar strongly urges the police to cease misusing Section 124B,
and to respect the right of all Malaysians to assemble peaceably.
Democracy is strengthened — not threatened — when Malaysians who wish
to assemble in peace may do so without threats of reprisal or
unjustified arrest.
Steven Thiru
President
Malaysian Bar
28 August 2015
|
Malaysian Bar - SOSMA Must Not be Abused to Quell Dissent - condemns arrest of Maria Chin?
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| Tuesday, 22 November 2016 04:46pm | |
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The
Malaysian Bar condemns the arrest and detention of Maria Chin Abdullah,
the Chairperson of BERSIH 2.0, under Section 124C of the Penal Code —
for the offence of attempting to commit activity detrimental to
parliamentary democracy — because BERSIH 2.0 allegedly received funds
from the Open Society Foundation (“OSF”). The arrest was made, and she
was detained, on 18 November 2016, which was the eve of the BERSIH 5
rally in Kuala Lumpur.
Subsequently,
on 19 November 2016 Maria Chin Abdullah was detained under the Security
Offences (Special Measures) Act 2012 (“SOSMA”), which allows for
preventive detention of up to 28 days for “security offences”. Section 3
of SOSMA defines “security offences” to include Part VI of the Penal
Code, under which Section 124C falls.
It
is startling that the authorities have invoked SOSMA against Maria Chin
Abdullah in respect of the purported receipt of the OSF funds. This is
because on 12 November 2016 the Deputy Minister for Home Affairs I,
Datuk Nur Jazlan Mohamed, had reportedly said that “OSF has been
providing funds for the past 10 years and the government has been
monitoring such activities but there are no concrete evidence that NGOs
in the country are involved in activities that can disrupt the peace of
the country by using the funds”, and that “the matter is still being
investigated”.[1]
The
Malaysian Bar notes that OSF is not an “unlawful society” under the
Prevention of Crime Act 1959 or Societies Act 1966, or a “listed
terrorist organisation” under the Anti-Money Laundering, Anti-Terrorism
Financing and Proceeds of Unlawful Activities Act 2001.
Moreover,
it is rather incredible for the authorities to suspect that OSF funds
were allegedly used by Maria Chin Abdullah to commit an offence under
Section 124C of the Penal Code. The offence of “activity detrimental to
parliamentary democracy” is defined in Section 130A of the Penal Code
as “an activity carried out by a person or a group of persons designed
to overthrow or undermine parliamentary democracy by violent or unconstitutional means”
(emphasis added). The definition of the offence is imprecise, but
SOSMA has been represented by the Government as a law to deal with
terrorism.[2] It was therefore never intended to restrict or prohibit
any form of peaceful and legitimate democratic activity.
It
is also noteworthy that when Section 124B — for the main offence of
activity detrimental to parliamentary democracy — was tabled in
Parliament as an amendment to the Penal Code, the Government declared
that it was not to inhibit political dissent or peaceful assembly.
Indeed, a Member of Parliament observed, “Kalau nak buat perhimpunan
aman atau bersih pun, itu tidak detrimental to Parliamentary
Democracy.”[3] (“Even if [they] want to hold a peaceful assembly or
BERSIH, that is not detrimental to parliamentary democracy.”)
Tan
Sri Abdul Gani Patail — the Attorney General when SOSMA was passed in
Parliament — himself has stated that SOSMA was “not intended to
guillotine parliamentary democracy or suppress political freedom”.[4]
In this regard, Section 4(3) of SOSMA specifically carves out the
defence of “political belief or political activity”, which the
Government also guaranteed when the legislation was tabled in
Parliament.[5] Thus, no one is to be held liable “solely for his
political belief or political activity”.
In
light of the above, the allegations of an offence under Section 124C
levelled against Maria Chin Abdullah appear to be baseless, and her
detention under SOSMA cannot be justified. The arrest and detention of
Maria Chin Abdullah is widely perceived to have been intended to
victimise and prevent her from leading the BERSIH 5 rally on the day
following her arrest. Any misuse of laws for ulterior or colourable
purposes by the authorities cannot be condoned, as it would be
tantamount to abuse of power.
It
has also been reported that Maria Chin Abdullah is being detained in an
unknown location, in solitary confinement in a windowless cell
measuring 15 feet by 8 feet, forced to sleep on a slab of wood on the
cement floor, and with lights kept permanently on, which could lead to
disorientation, sleep deprivation and, consequently, serious medical
complications. These are oppressive, inhumane and degrading conditions
of detention. It would appear that Maria Chin Abdullah is being
subjected to the deplorable Internal Security Act 1960 (“ISA”)-type
detention conditions, prior to the repeal of that law in 2012, which
cannot be tolerated. It would thus seem that there has been a flagrant
breach of the Lock-Up Rules 1953, which provide for conditions of
detention and apply even for detentions under SOSMA.
The
United Nations Security Council Resolution 2178 (2014), unanimously
adopted on 24 September 2014, provides that “Member States must ensure
that any measures taken to counter terrorism comply with all their
obligations under international law, in particular international human
rights law…, underscoring that respect for human rights, fundamental
freedoms and the rule of law are complementary and mutually reinforcing
with effective counter-terrorism measures”. In this regard, the
conditions of detention faced by Maria Chin Abdullah appear to be in
non-compliance with the United Nations Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules), which stipulate, inter alia:
Peaceful
demands or activities by citizens are part and parcel of the process of
parliamentary democracy. It is the criminalisation of these acts that
is detrimental to parliamentary democracy, and must be rejected. The
abuse of SOSMA, and criminal procedures for the purposes of alleged
Penal Code offences, particularly in a case that does not concern
“security offences”, is abhorrent and repugnant to the rule of law.
The Malaysian Bar demands that Maria Chin Abdullah be released immediately and unconditionally.
Steven Thiru
President
Malaysian Bar
22 November 2016
[1] “Esscom’s decision to release list of wanted criminals in Sabah hailed”, Malaysiakini, 12 November 2016.
[2] “Nazri: Only one ISA replacement law”, Free Malaysia Today, 11 April 2012.
[3]
Penyata Rasmi Parlimen Dewan Rakyat (Hansard), 17 April 2012, page 120,
quoting the Member of Parliament for Rembau, Tuan Khairy Jamaluddin.
[4] “Gani Patail: Sosma introduced to deal with terrorism”, The Star Online, 4 November 2015.
[5]
Penyata Rasmi Parlimen Dewan Rakyat (Hansard), 16 April 2012, page 6,
quoting the Prime Minister, Dato’ Sri Mohd Najib Tun Abdul Razak.
[6] Rule 13, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (“Mandela Rules”).
[7] Rule 14(a), Mandela Rules.
[8] Rule 21, Mandela Rules. |
Deputy law minister says govt will amend Sosma, repeal ‘not in the pipeline’
PUTRAJAYA, Aug 23 — The federal government has no intention to repeal the controversial Security Offences (Special Measures) Act 2012 (Sosma), Ramkarpal Singh said today.
Instead, the deputy minister in the Prime Minister’s Department (Law and Institutional Reform) said the government plans to introduce two amendments to the law, one of them being the issue of bail.
“We are looking at several aspects, the question on bail is the issue we are looking into now. There are two recommendations. However, in our improvement of the Act, it will proceed in stages accordingly.
“Repeal is not in the pipeline,” he told reporters after flagging off a brisk walk in conjunction with Merdeka this month at the ministry here.
At present, Section 13 of Sosma only allows for bail if the offender facing a security offence is one who is below 18 years, a woman, sick or infirm person.
Introduced in 2012 as a replacement to the colonial-era Internal Security Act (ISA), the equally controversial preventive detention law retained its predecessor's clause which allows for suspects of an investigation to be detained without trial for up to 28 days at a time.
When asked when the Cabinet would deliberate on the matter, Ramkarpal said there was no definite timeline as of yet but did confirm it will be done within this year.
"At this point in time we have more or less completed most of the engagement with stakeholders, so now it's bringing said proposals for [Cabinet's] consideration.
"No timeline but at the earliest," he said.
Earlier this month, Ramkarpal had in an issued statement said the proposed amendments were now jointly being studied by the Home Ministry, the Royal Malaysia Police and the Attorney General’s Chambers.
Prior to the issuance of Ramkarpal's statement, a hunger strike by family members of Sosma detainees in front of the Sungai Buloh Prison had taken place.
Last December, Home Minister Datuk Seri Saifuddin Nasution Ismail defended the retention of Sosma, saying "the law allows the court process to take place,” which led to much criticism from political figures and rights groups over the country’s stance on the protection of human rights.
His stance has put him in conflict with some allies in Pakatan Harapan (PH) as well as civil society groups that have pointed out the apparent hypocrisy in defending the preventive detention law that the coalition previously rejected when it was in Opposition.
Saifuddin Nasution's predecessor, Datuk Seri Hamzah Zainudin had in March 2022 said parties who do not agree with Sosma are those who want to make room for criminals and terrorists to dominate the country.
Hamzah had then too defended the
government's stance of retaining Sosma with further amendments to extend
enforcement of the 28-day detention period, noting that the law is
still relevant and crucial to ensuring public order and national
security. - Malay Mail, 23/8/2023
Government to amend Sosma enabling courts to grant bail to accused
KUALA LUMPUR: The government is expected to amend a provision in the Security Offences (Special Measures) Act 2012 (Sosma) during the next parliament sitting in March.
Attorney-General Tan Sri Tommy Thomas said this today when submitting before High Court judge Collin Lawrence Sequerah to explain his ‘inconsistent’ stance on Section 13 of Sosma which denied the court granting bail to accused charged under the Act.
Thomas had previously instructed the prosecution in the case of accused charged with supporting and possessing items related to terror group Liberation Tigers of Tamil Eelam (LTTE) to challenge the constitutionality of Section 13 of Sosma, arguing that it was constitutional.
However, he made it clear today that he supported the decision made by High Court judge Mohd Nazlan Mohd Ghazali that Section 13 of Sosma was unconstitutional.
According to Thomas, the amendment was part of the government’s effort to fulfil its manifesto in the last general election.
Section 13 of Sosma states that the court was prohibited from considering the granting of bail to a person charged for an offence under Chapter 6A of the Penal Code.
"I have already issued a media release that we are not going to appeal (against Judge Nazlan's declaration),” Thomas said.
On Nov 29, Nazlan declared that Section 13 of Sosma was ultra vires to Articles 8 and 121 of the Federal Constitution.
Nazlan in his judgment said the judicial powers or the power to adjudicate in civil or criminal matters were exclusive of the courts.
However, judges Sequerah and Muhammad Jamil Hussin who presided cases against Seremban Jaya assemblyman P. Gunasekaran and DAP member V. Suresh Kumar, questioned whether they were bound by Nazlan’s declaration.
Sequerah said his main concern was that Section 13 of Sosma was still in the statute.
Gunasekaran and Suresh Kumar were charged with supporting and possessing items related to LTTE in October last year.
They were detained in prison after they were denied bail on charges under Sosma in October last year.
Counsel Ramkarpal Singh who represented the duo, however, said the court was ‘indirectly’ bound by Nazlan’s declaration as the latter made his declaration based on landmark 2017 Federal Court case of Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat.
Sequerah and Jamil then fixed Feb 5 for their decisions to grant bail against the accused and their declaration on Section 13 of Sosma.
On Nov 1, Sessions Court Judge Rozina Ayob ruled that there was merit in the application made by the defence under Section 13(2) of Sosma to refer constitutional matters concerning bail to the High Court.
Besides Gunasekaran and Suresh Kumar, the others are taxi driver V. Balamurugan, 37; postman, S. Teeran, 38; scrap metal trader A. Kalaimughilan, 28; comoany chief executive officer S. Chandru, 38; technician S. Arivainthan, 27; storekeeper S.Thanagaraj, 26; security guard M. Pumugan, 29; school teacher Sundram Renggan @ Rengasamy, 52; and businessman B. Subramaniam, 57.
They were charged in separate Sessions Courts here and
several other states on Oct 29 and 31 with allegedly having links with
LTTE. - NST, 23/1/2020
Malaysian Bar calls for Sosma to be repealed in its entirety
KUALA LUMPUR: The Malaysian Bar has called for the Security Offences (Special Measures) Act 2012 (Sosma) to be repealed in its entirety.
Its president Abdul Fareed Abdul Gafoor said piecemeal amendments to Sosma would not suffice as the Malaysian Bar believes that Sosma is an unnecessary piece of legislation.
He said the legislation has also resulted in arbitrary powers to the police that substantially erodes the right of an accused to a fair trial, and also undermines the protections and fundamental liberties contained in the Federal Constitution.
“Sosma serves as a procedural law, side-stepping the Criminal Procedure Code (CPC) that works in tandem with the predicate offences provided in Part VIA of the Penal Code,” he said.
Fareed explained that Sosma and the various amendments to the Penal Code, Evidence Act 1950, and CPC were introduced as part of an “anti-terrorism” legislative package in 2012, ostensibly to replace the repealed Internal Security Act 1960.
He added that Sosma provides for various provisions designed to tackle terrorism, including detention for investigative purposes, special procedures for the trial or hearing of terrorism offences in Court, and powers of surveillance.
“However, these provisions also contain draconian elements that run counter to the rule of law.
“Sosma provides for an accused person to be arrested without a warrant, and detained for up to 28 days without being brought before a magistrate.
“Sosma also provides that ‘bail shall not be granted to a person who has been charged with a security offence’,” he said in a statement today.
Fareed said the Malaysian Bar believed that there are existing laws, such as the Penal Code and Criminal Procedure Code, which are tried and tested, and accord accused persons fundamental liberties in the trial process, and are sufficient to address such crimes.
“If found insufficient, the solution lies in amending existing non-draconian laws or enacting new laws that observe the rule of law”.
Further, he said the conflicting reports – from the detainees and the Government – of mistreatment, torture and intimidation while in custody, does not augur well for a Government that prioritises the rule of law.
“To this end, the Malaysian Bar calls for an immediate investigation be carried out to ascertain the truth of the allegations. Such scenarios should no longer arise.”
The Malaysian Bar has, through the years, repeatedly called for the urgent repeal of Sosma, having seen its abuse in the past, and recognises its potential for misuse, going forward.
“While the current Government has pledged in its Election Manifesto to ‘abolish draconian provisions… (Sosma)’, and the total repeal of other draconian and oppressive laws, what we have seen instead is flip-flopping and reneging on these promises.
“The Malaysian Bar hopes that the Government’s reiteration of their commitment to this pledge bears tangible results.”
He added that the Malaysian Bar is cognisant of the Government’s need to maintain national security.
“However, this must always be done in harmony and recognition of constitutional guarantees and the rule of law.
“Sosma, as it stands, has no place in a democratic nation, and is an affront to the principles of natural justice.”
Fareed said the Malaysian Bar is ever ready to assist the Government in executing this pledge.
On Tuesday, Prime Minister Tun Dr Mahathir Mohamad announced that certain Sosma provisions would be amended soon.
He said the changes would be undertaken to ensure the law no longer is draconian in nature for allowing arrest and detention without trial.
Dr Mahathir said the amendment to the law would be tabled in Parliament as soon as possible.
Defence Minister Mohamad Sabu was previously reported as saying that the Sosma should be improved instead of being abolished. - NST, 7/11/2019
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