SOSMA - not the new ISA and no death penalty...Let's understand SOSMA better?

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about SOSMA - and as such, I would try to shed some light about this draconian legislation, which I believe should be repealed...Read on..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:-

  

OPRESSIVE LAWS: Repeal SOSMA & offences criminalizing activities ‘detrimental' democracy’ - MADPET (Malaysia Chronicle)

SOSMA, Khairuddin and Chang , BAIL RM10,000

    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. 

 

3  Interpretation

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

121	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

121A Offences against the Yang di-Pertuan Agong's person

121B Offences against the authority of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri

121C Abetting offences under section 121A or 121B

121D Intentional omission to give information of offences against sections 121, 121A, 121B or 121C by a person bound to inform

122 Collecting arms, etc., with the intention of waging war against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri

123 Concealing with intent to facilitate a design to wage war

124 Assaulting member of Parliament, etc., with intent to compel or restrain the exercise of any lawful power

124A (Repealed)

124B Activity detrimental to parliamentary democracy

124C Attempt to commit activity detrimental to parliamentary Democracy

124D Printing, sale, etc., of documents and publication detrimental to parliamentary democracy

124E Possession of documents and publication detrimental to parliamentary democracy

124F Importation of document and publication detrimental to parliamentary democracy

124G Posting of placards, etc.

124H Dissemination of information

124I Dissemination of false reports

124J Receipt of document and publication detrimental to parliamentary democracy

124K Sabotage

124L Attempt to commit sabotage

124M Espionage

124N Attempt to commit espionage

125 Waging war against any power in alliance with the Yang di-Pertuan Agong

125A 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

126 Committing depredation on the territories of any power at peace with the Yang di-Pertuan Agong

127 Receiving property taken by war or depredation mentioned in sections 125 and 126

128 Public servant voluntarily allowing prisoner of State or war in his custody to escape

129 Public servant negligently suffering prisoner of State or war in his custody to escape

130 Aiding escape of, rescuing, or harbouring such prisoner

130A Interpretation of this Chapter

CHAPTER VIA   OFFENCES RELATING TO TERRORISM Suppression of terrorist acts and support for terrorist acts 130B Interpretation in relation to this Chapter

130C Committing terrorist acts

130D Providing devices to terrorist groups

130E Recruiting persons to be members of terrorist groups or to participate in terrorist acts

130F Providing training and instruction to terrorist groups and persons committing terrorist acts

130FA Receiving training and instruction from terrorist groups and persons committing terrorist acts

130FB Attendance at place used for terrorist training

130G Inciting, promoting or soliciting property for the commission of terrorist acts

130H Providing facilities in support of terrorist acts

130I Directing activities of terrorist groups

130J Soliciting or giving support to terrorist groups or for the commission of terrorist acts

130JA Travelling to, through or from Malaysia for the commission of terrorist acts in foreign country

130JB Possession, etc. of items associated with terrorist groups or terrorist acts

130JC Offence to build, etc. conveyance for use in terrorist acts

130JD Preparation of terrorist acts

130K Harbouring persons committing terrorist acts

130KA Member of a terrorist group

130L Criminal conspiracy

130M Intentional omission to give information relating to terrorist acts

Suppression of financing of terrorist acts 130N Providing or collecting property for terrorist acts

130O Providing services for terrorist purposes

130P Arranging for retention or control of terrorist property

130Q Dealing with terrorist property

130QA Accepting gratification to facilitate or enable terrorist acts

130R Intentional omission to give information about terrorist property

130S Intentional omission to give information relating to terrorism financing offence

130T Offences by body corporate

130TA Non-application of Offenders Compulsory Attendance Act 1954 and sections 173A, 293 and 294 of the Criminal Procedure Code

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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

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.

19 Conviction based on testimony of a child of tender years

20 Documents seized during raid or in the course of investigation

21 Evidence of identification of accused or other person

22 Search list to be admissible as evidence

23 Non-production of exhibit

24 Admissibility of intercepted communication

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