Friday, September 01, 2023

Repeal Sosma, abandon minor amendments - MADPET (Malaysiakini)

 See original statement -Karpal and lawyers threatened to boycott ESCAR trials - SOSMA is just like ESCAR - So repeal it, and ensure all TRIALS are fair and comply with Evidence Act and Criminal Procedure Code.(MADPET Statement)

COMMENT | Repeal Sosma, abandon minor amendments
Published:  Aug 28, 2023  
COMMENT | Malaysians Against Death Penalty and Torture (Madpet) is pleased that the BN-Pakatan Harapan government is looking at the Security Offences (Special Measures) Act 2012 (Sosma) and may likely restore the bail granting discretion to judges.

At present, the act prohibits bail pending the end of the criminal trial, which means that the accused of any Sosma offences are forced to languish in detention until the end of the trial.

This is draconian as it ignores the presumption of innocence until proven guilty.

Further, it is unjust for any possibly innocent individual because denial of bail results in detention until the completion of the trial, noting that trials in Malaysia can take a long time to end, maybe even years.

Imagine the suffering also caused to the family, children, and dependents of these possibly innocent accused persons.

What happens when they are found not guilty?

Please leave it to the judges to determine whether bail is allowed or not, and it is wrong for Parliament by law to steal this power from judges to determine whether bail is granted.

Ramkarpal Singh reportedly said the federal government has no intention to repeal Sosma.

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.

Deputy Minister in the Prime Minister’s Department Ramkarpal Singh

Madpet is disappointed with the BN-Harapan government’s position, as expressed by the late Karpal Singh’s son, not to repeal Sosma.

We reiterate that what is needed urgently is the abolition of Sosma, not simply making some minor amendments here and there.

Fair trial

All persons should be given a fair trial in compliance with the existing Evidence Act and Criminal Procedure Code.

Those accused of Sosma listed offences are discriminated against and not accorded the same fair rights in a trial.

There is no justification for such an exception on the strict compliance of the Evidence Act and Criminal Procedure Codes that ensures the standard for a fair trial in Malaysia.

If there is a need, then amend the Evidence Act and Criminal Procedure Code and apply the same standards and procedures to all accused in all criminal trials.

Sosma is a poor law, similar to the Essential (Security Cases) Regulations 1975 (Escar) that violates the right to a fair trial.

It provides special measures relating to security offences, including the use and admission of evidence currently prohibited by the Evidence Act.

Our Federal Constitution provides in Article 8(1) that “All persons are equal before the law and entitled to the equal protection of the law.”

Sosma is a violation of this constitutional guarantee.

It allows for a class of accused persons to be tried differently, not in full compliance with the Evidence Act and Criminal Procedure Code – hence violating Article 8.

Opposition to Escar

Sosma, being an act to provide for special measures relating to security offences, is just like the Escar which was vehemently opposed by Karpal, lawyers, and the Bar.

Lawyers threatened to boycott any cases that used Escar, which permitted the avoidance of strict compliance with the Evidence Act and Criminal Procedure Code.

The government’s reaction to the Malaysian Bar then was the amendment of the Legal Profession Act 1976.

This amongst others, barred young lawyers (below seven years of practice) from holding bar leadership positions and being in Bar committees and increased quorum for general meetings.

Hence, the retaining of Sosma is undoubtedly not what lawyers, including Karpal, and the Harapan of the past wanted.

Hopefully, the BN-Harapan government will revert to its earlier just position and abolish Sosma speedily.

Not a replacement

Sosma is not a detention without trial law, as all those charged under any Sosma-listed offence will be accorded a trial.

The prosecution is duty-bound to prove in an open court beyond reasonable doubt that the accused is guilty of the crimes he/she was charged with.

In detention without trial, like the past Internal Security Act 1960 (ISA), the present Prevention Of Crime Act 1959 (Poca), the Prevention of Terrorism Act 2015 (Pota), and the Dangerous Drugs (Special Preventive Measures) Act 1985 [DD(SPM)A] - there will be no trial.

The accused does not have the opportunity to defend themselves in court.

For all Sosma listed offences, there is a trial.

Confusion may have arisen because the ISA was repealed by Section 32 of Sosma in 2012, which states: “(1) The ISA is repealed….”, but this certainly does not mean that Sosma replaces ISA and is a ‘new’ detention without trial law.

It is not.

Pota, Poca broader scope

After the draconian ISA was repealed in 2012, and the Emergency (Public Order and Crimes Prevention) Ordinance 1969 was repealed in 2013, a new detention without trial law - Pota was enacted.

The existing Poca was amended in 2014 to increase the scope of alleged crimes that would subject suspects to detention without trial.

Like ISA, detention without trial laws are draconian also because judicial review or court challenges of the reasons for the arrest, detention, or restriction are not allowed.

Hence, not only is there a denial of the right to a fair trial, but also the denial of the right to challenge the reasons it was used on detainees.

This facilitates miscarriage of justice, including the possibility that an innocent person is wrongly arrested, detained, and restricted.

This is why Malaysia must abolish all detention without trial laws.

Even if politicians are not victims, repeal Poca, Pota, and the DD(SPM)A.

Some say politicians and political parties strongly opposed the ISA after politicians fell victim to this detention without trial law under Operation Lalang in 1987.

So, politicians may not repeal this detention without trial laws until politicians fall victim to Poca, Pota, or the DD(SPM)A.

It seems that political parties and the government do not care if ‘unknown’ Malaysians become victims of detention without trial laws.

Madpet hopes this is not the case and calls for the immediate repeal of all detention without trial laws.


Some say the BN-Harapan government is backtracking or making U-turns in its commitment to abolish draconian laws or provisions in law because it did not obtain a majority in the last general election.

This forced Harapan to form a coalition government with other parties who did not care about human rights.

This is a lame excuse, as Harapan managed to win 82 seats out of 112 seats required to form the government.

This means it has more than 50 percent in a cabinet which is all that is required to table laws, and Madpet believes there are sufficient non-Harapan MPs and opposition lawmakers who will pass any good laws that promote justice and human rights.

Hence, the excuse of Prime Minister Anwar Ibrahim’s government for not repealing bad laws is not justifiable and may not be accepted by the public.

Table the required bills to repeal bad laws and bad provisions in some laws.

Madpet reiterates the call for the immediate repeal of Sosma and all detention without trial laws comprising Poca, Pota, and DD(SPM)A.

Madpet also calls for a moratorium on using these draconian laws pending abolition.

MADPET is a movement for the abolition of the death penalty and torture. - Malaysiakini, 28/8/2023

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