Tashny Sukumaran was quoted in the Malay Mail.

By Soo Wern Jun, 14 Jan 2023

KUALA LUMPUR, Jan 14 — The government must justify the controversies surrounding the Security Offences (Special Measures) Act (Sosma) 2012 before deciding to retain it, pressure groups and academics have said.

Four cases in the past showed a clear misuse of the procedural law, said Suaram executive director Sevan Doraisamy.

“Even without looking into the implementation of Sosma, there’s a lot of issues. Of the four cases, the most blatant one is the arrest of Maria Chin Abdullah under Sosma.

“With all the international pressure, they released her. She was put in solitary confinement, so that’s a huge no.

“When she filed against the government, they settled out of court. The court said that it was definitely a miscarriage of justice,” he told Malay Mail when contacted.

Maria filed a suit in August 2018, claiming that her 10-day detention, beginning November 18, 2016, was not justified under the law.

The former Bersih 2.0 chairman reportedly said the arrest, which took place on the eve of the Bersih 5 rally, was cruel and oppressive.

Chang, Khairuddin and LTTE 12

Sevan also cited the arrests of lawyer Matthias Chang and former Batu Kawan Umno division leader Datuk Seri Khairuddin Abu Hassan as another example of the misuse of Sosma.

On October 8, 2015, Chang was arrested under Sosma at the Dang Wangi district police headquarters when he went there to visit his client Khairuddin, who was also being held under the Act.

Chang was detained under Section 124K and 124L of the Penal Code that deal with sabotage and attempting to sabotage the state respectively.

Prior to his arrest, Khairuddin was rearrested under Sosma on September 23 that same year after his remand order under Section 124C of the Penal Code expired.

Khairuddin had been remanded since September 19 under Section 124C of the Penal Code for trying to carry out activities deemed detrimental to parliamentary democracy.

“Khairuddin later sued the government. The court declared that the use of Sosma was unconstitutional.

“This was against the initial objective of the procedure of the law (Sosma); even the court had already declared that,” said Sevan.

Khairuddin filed the suit in May 2018 claiming that he was wrongfully detained by the authorities on September 19, 2015 under Section 124C of the Penal Code in connection with his reports on the 1Malaysia Development Berhad (1MDB) financial scandal.

In August 2022, he won this civil suit against the government for his wrongful detention in 2015.

News portal Malaysiakini reported the High Court also awarded him RM300,000 in damages for the 62-day detention under Sosma.

“And then, in the case of the LTTE (Liberation Tigers of Tamil Eelam) 12 who were arrested, the Attorney General’s Chambers (AGC) had no choice but to withdraw the cases because it was a clear-cut misuse of Sosma,” said Sevan, referring to the fourth case which proved the misuse of Sosma.

On February 2020, then attorney general Tan Sri Tommy Thomas discontinued proceedings against the LTTE 12.

At the time, Thomas said the common thread allegedly linking the group was that they had photos of slain LTTE leaders such as Velupillai Prabhakaran in their phones or Facebook accounts, but this did not constitute a criminal offence.

Other laws get the job done too

Sevan pointed out that Sosma was implemented to tackle the growing influence of Islamic State in the region at the time.

“But having said that, we already have other laws under the Penal Code to charge them.

“All you need is the remand days and charge them. But Sosma allowed the authorities to keep you for 28 days. That’s a very controversial 28 days.

“Even the government knows that it’s very controversial, and so they included a sunset clause on the 28 days to be reviewed after five years,” he said.

He recalled that the provision was voted in again in 2017 but was voted out during the March 2022 Parliament sitting — with MPs who were in the Opposition then, including current Home Minister Datuk Seri Saifuddin Nasution Ismail, voting against the 28 days of remand.

“If there’s so much controversy, what is holding back the current home minister from having a proper discussion on this?

“If I recall, during the March 2022 Parliament sitting, when the 28-day detention period was voted out, the inspector-general of police (IGP) said then that we are ready to use other provisions under the Penal Code.

“When you already have the Penal Code, you can use that. Why are you continuing to use very controversial procedures? And Sosma is not a chargeable law; it’s a procedural law. You can’t charge under Sosma, you can only arrest and detain them,” he added.

So where are the checks and balances, Sevan asked.

“It is never too late for the home minister to lay down a plan and have a proper civil society engagement with all other stakeholders such as the AGC, Bar Council, Suhakam and Suaram.

“If he is reluctant, that’s incompetent of him,” said Sevan, reminding the home minister that he was part of the Gerakan Mansuhkan ISA movement that succeeded in abolishing the Internal Security Act (ISA) 1960.

Sevan said Suaram had yet to receive an invitation to an engagement session despite Deputy Law Minister Ramkarpal Singh indicating as such.

“Deputy Minister Ramkarpal said he will call for civil society engagement. We are waiting for that, but we ask that he start the ball rolling on behalf of Saifuddin at least,” said Sevan.

Malay Mail reached out to the deputy minister for comment but had not received a response at the time of publication.

National security vs civil liberties

Weighing in, Lawyers for Liberty director Zaid Malek has insisted that the government offer an explanation on its intention to keep Sosma.

“As Sosma is a law that drastically curtails civil liberties, it is for the govt to explain and justify its necessity. This, they have spectacularly failed to do. Vaguely speaking of national security or public safety is not justification.

“In a nutshell, there are plenty of other laws to deal with public order or national security matters in the Penal Code.

“In any event, national security can never justify drastic compromises on civil liberties,” said Zaid when contacted.

Tashny Sukumaran, a senior analyst with the Institute of Strategic and International Studies (ISIS) also offered views which point towards the unjustified existence of the procedural law.

“As a procedural law, Sosma as it exists puts forward a broad scope of powers such as arrest without warrant, extended detention without remand and limited access to lawyers or family.

“It grants large powers to the prosecution, it violates the right to liberty, and also in parts overrules the generally serviceable Criminal Procedure Code. Elements such as communications interception and ‘protected witnesses’ (thus making it difficult to question witness credibility) run contrary to international fair trial standards.

“Beyond the fact that repealing Sosma was an election promise that should be upheld, a progressive government should be moving towards removing or at very least heavily amending regressive laws,” Tashny said when contacted.

She added that since the government has yet to address fully custodial deaths and allegations of torture in custody, it cannot justify the continued existence of a law that makes it easier for such abuses to continue.

Best-laid schemes of mice and men

Ng Sze Fung from the Research for Social Advancement (REFSA) also reminded the government of the day of Sosma’s initial intent — to combat organised crimes and acts of terrorism which may require the detention of suspects for a period while investigations are in progress.

“However, despite salutary intentions and the replacement of the notorious ISA, recent history has shown that these laws can still be used to silence legitimate Opposition and political dissidents.

“In 2015, then prime minister Datuk Seri Najib Razak invoked Sosma to arrest Khairuddin and Chang who had lodged reports overseas that facilitated investigations into the 1MDB scandal, clearly to shield himself from further exposure.

“The above abuses of Sosma, and of the ISA previously, go against the original spirit of the law. Malaysia’s first prime minister Tunku Abdul Rahman stated, at the ISA’s inception in 1960, that it is to ‘be used solely against the communists and never to be used to stifle legitimate Opposition and silence lawful dissent’.

“The ISA was introduced to counter the Malayan Emergency, a guerrilla war fought between the communist pro-independence Malayan National Liberation Army (MNLA) and the military forces of the British Empire and Commonwealth,” said Ng.

Ng said that even when Sosma was introduced in 2012, the Bar Council argued that existing legal provisions are adequate to deal with security offences.

“Malaysia’s ordinary criminal law, as established in the Criminal Procedure Code (CPC), provides for up to 14 days of detention.

“The 14-day period should be more than enough to investigate terrorism and organised crime,” said Ng, indicating that other countries such as the United Kingdom allow a pre-trial detention period of 14 days for terror suspects.

“There is no reason for the punitive measures deployed under Sosma, as Malaysia has incrementally expanded countermeasures against terrorism.

“Malaysia’s Penal Code was amended in 2012 to deal specifically with terrorism-related offences. It is worth noting that the introduction of these terrorism-specific provisions coincides with the passing of Sosma.

“In addition, legal oversight of these offences is supplemented by the Prevention of Terrorism Act (POTA) 2015 and the Special Measures against Terrorism (in Foreign Countries) Act 2015,” he said.

On December 13, Saifuddin 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.

This article was first published in the Malay Mail, 14 Jan 2023

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