MARCH 26 — Bandar Kuching MP Dr Kelvin Yii was reported by Malay Mail to have said that Pakatan Harapan (PH) has long been consistent with its stand that the Security Offences (Special Measures) Act (Sosma) 2012 is a draconian Act that clearly violates human rights and oppresses the people.
Despite being a draconian Act, Sosma was used in 2019 to detain 12 individuals for their alleged links to the terrorist group Liberation Tigers of Tamil Eelam (LTTE).
Then Home Minister, Tan Sri Muhyiddin Yassin, said that the government could not afford to abolish Sosma as terrorism was on the rise globally.
Then Prime Minister, Tun Dr Mahathir had earlier said that the police had briefed him on the matter and he was satisfied with the reasons given for the arrests.
To be fair, speaking as PH chairman, Mahathir had also said amendments to draconian laws such as Sosma would be made soon.
“Even though we are not going to abolish these laws, but we are going to make changes to the parts which are ‘draconian’,” he said after the PH presidential council meeting then.
Let it be reminded that Sosma is the law that provides for the procedures, evidential rules and powers (including that of arrest) to the authorities in relation to what is known as ‘security offences’.
The term ‘security offences’ is defined to include offences which fall under Chapters VI (offences against the State), VIA (offences relating to terrorism) and VIB (organised crimes) of the Penal Code.
For these offences, it is explicitly stated that Sosma shall apply [section 2]. There are no two ways about it.
Sosma, as it is now, allows for a person to be detained for security offences for up to 28 days, after the initial 24 hours following arrest. But this is for the purpose of investigation.
Such a detention is generally referred to as detention pending investigation. In other jurisdictions, it is called pre-charge detention. It is the period that a person can be detained by the police between being arrested and being either charged with a criminal offence or released.
Pre-charge detentions serve the primary purpose of securing sufficient admissible evidence during investigation for use in criminal proceedings.
Coming back to Sosma, at the second reading of the Bill, this was what the then Prime Minister said:
“[R]ang undang-undang baru ini menyentuh tentang kuasa penangkapan dan penahanan. Di bawah [Rang Undang-Undang] ini, polis mempunyai kuasa khas untuk menangkap dan menahan mana-mana orang yang polis mempunyai sebab untuk mempercayai bahawa orang itu terlibat dengan kesalahan keselamatan. Perlu ditekankan di sini bahawa kuasa penangkapan dan penahanan ini adalah untuk tujuan penyiasatan semata-mata.”
Much that one may want to disagree, it is what detention under Sosma is all about [see section 4 of Sosma].
Why 28 days? It is twice longer than the total period of 14-day detention allowed under the Criminal Procedure Code (CPC).
It might have been ‘inspired’ by the same period of detention under the United Kingdom’s legislation which allows for pre-charge detention of terrorist suspects for up to 28 days without charge [see Terrorism Act 2006].
Mind you, in 2008 the UK government even attempted to further extend this period to 42 days, but was eventually unsuccessful.
The provisions of the Bill extending pre-charge detention, which was passed by the House of Commons, were defeated in the House of Lords — the upper House like the Senate here in Malaysia — by a majority of 309 votes to 118.
It is said that terrorism cases require longer periods of pre-charge detention because of the complexity of investigating terrorism cases, the difficulty in obtaining admissible evidence, and the importance of protecting the public from terrorist attacks.
The complexity of terrorism cases includes the use of encrypted data; voluminous quantities of material; data from cellular telephones; multiple false identities; forensic science delays; difficulties when large numbers of suspects are held together; and the cumulative impact of all the above issues. [see “Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post-Charge Questioning, 2007-08, Cm 7215]
Whether it is 14 days or 28 days, much debate has in fact gone into this period of detention [see for eg Lord Carlile of Berriew, QC, Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill, 2007-08, Cm 7262, 41 ]
It is a struggle that any government will have to strike between its “primary responsibility to ensure the safety of its citizens, which must include looking at what powers the law enforcement agencies may need in future instead of waiting until current powers have been proved inadequate” and “the scale and nature of the terrorist threat and the increasing complexity of cases.”
Again, much that one may want to disagree, investigations into security and terrorism offences call for a separate power of arrest and detention from the normal procedural law, which in Malaysia is contained in the CPC.
This special power has been described as one of the most important powers that should be made available to the police and law enforcement agencies. The exercise of such power can “have both a disruptive and preventative impact on any terrorist plans that may be in process.”
Having said this, it does not mean that the 28-day detention under Sosma is not objectionable.
A main objection is that Sosma, unlike the UK legislation and the CPC, does not provide for a judicial authority, like a Magistrate, to be satisfied that an extension to the period of detention is necessary. This is rightly alluded to by Karen Cheah Yee Lynn, President of the Malaysian Bar.
This is one area where reform to Sosma is necessary. Like the UK legislation, a judicial authority should be satisfied that an extended detention is necessary to:
• obtain or preserve relevant evidence;
• permit the completion of an examination or analysis of any relevant matter with a view to obtaining evidence; and
• the investigation connected with the detention is being conducted diligently and expeditiously. [see Terrorism Act 2000 c. 11, sch. 8 part 3 (as amended)]
A responsible Parliament will have to apply its mind whether the existing laws in Malaysia on pre-charge detention are adequate to have “a disruptive and preventative impact on any terrorist plans that may be in process.”
It has to strike a balance.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
