A very good evening distinguished guests, Members of the Malaysian Bar, ladies and gentlemen,
1. I am pleased to welcome all of you this evening to this important forum on the Security Offences (Special Measures) Act 2012, better known as SOSMA.
2. We are privileged to have with us today a panel of eminent speakers — Ravi Nekoo (Co–Chairperson, Bar Council National Legal Aid Committee), YB Sivarasah Rasiah (MP for Subang), Dr Dzulkefly Ahmad (Former MP for Kuala Selangor) and Andrew Khoo (Co–Chairperson, Bar Council Human Rights Committee). We look forward to hearing from them, and indeed the discourse that follow in the question & answer session.
3. Some of you may recall that on 3 November 2015, the Bar Council organised a forum on SOSMA called “Wolf in Sheep’s Clothing”. At that forum we had with us the former Attorney General, Tan Sri Abdul Gani Patail, who was the Attorney General of Malaysia at the time SOSMA was passed in 2012. In his speech, Tan Sri Gani pointedly noted that SOSMA was “…not intended to guillotine parliamentary democracy or suppress political freedom.” That forum was in the wake of the arrest and detention of Dato’ Sri Khairuddin Abu Hassan and his lawyer Matthias Chang — a Member of the Malaysian Bar — under SOSMA, and they were subsequently prosecuted for the offence of attempting to commit sabotage under Section 124L of the Penal Code. It has been alleged that the act of sabotage is in relation to the lodging of reports about possible corrupt practices with law enforcement agencies in five foreign countries — France, the United Kingdom, Switzerland, Hong Kong and Singapore — that was purportedly intended to be a conspiracy to cause harm to the banking and financial system of Malaysia. Their case is still pending before the courts.
4. More recently, we have had the arrest and detention of Maria Chin Abdullah, 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 SOSMA and after 11 days of detention, she was released yesterday. It is to be noted that the Inspector General of Police is reported to have also said today that Maria Chin Abdullah is still under investigation and she could be rearrested.
5. Yesterday, it was reported that the office of EMPOWER (Persatuan Kesedaran Komuniti Selangor) was raided by the police for investigations also under Section 124C of the Penal Code and SOSMA. In EMPOWER’s press release today, their President A Janarthani, said that the police had interrogated their staff “without allowing for legal representation”, and further the police had threatened their staff “with detention for 48 hours without access to lawyers. They appeared to be investigating Bersih’s funding and took various files and financial documents, including EMPOWER’s general ledgers and profit and loss financial reports”. In this regard, the Inspector General of Police also reportedly said today that others could also be arrested for receiving foreign funds.
6. Ladies and gentlemen. It would seem the spectre of foreign funding to NGOs is the current excuse for invoking SOSMA. The approach of the authority appears to be that these foreign funds are being used for activities detrimental to parliamentary democracy — toppling a democratically elected government — and therefore offences under Sections 124B and 124C of the Penal Code may have been committed. The offence of activity against 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. 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.” (“Even if [they] want to hold a peaceful assembly or BERSIH, that is not detrimental to parliamentary democracy.”)
7. Thus the rationale behind the recent use of SOSMA for allegedly receiving foreign funding is difficult to fathom. There is no legal impediment on receiving foreign funding and there is nothing to indicate that the alleged foreign funding that is being investigated emanated from a prohibited organisation under our laws. Further the activities of some of the groups under investigation are clearly in support of, or for the purposes of, enhancing democracy in our country, specifically in the sphere of human rights advocacy and awareness. Much of the activities here are for the marginalised and vulnerable in our society. It is further perplexing that the authorities have utilised SOSMA, particularly against organisations that have purportedly received funds from OSF, given that 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”.
8. Is SOSMA therefore being misused for ulterior purposes? Recent events, which appear to be attempts to pre–empt or nullify the exercise of constitutional rights such as the freedom of speech and assembly, as well as the denial of fundamental rights which include the right to legal representation, are very troubling and have led to the perception that SOSMA is being abused. These concerns have been exacerbated by reports that there is preventive detention under SOSMA that harks back to the intolerable ISA–type detention conditions. In this connection, we have recently seen reports that Maria Chin Abdullah was 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 would be cruel, inhumane and degrading conditions of detention, which would not comply with the Lock–Up Rules 1953, which provide for conditions of detention and apply even for detentions under SOSMA and requirements under international law as found in the United Nations Standard Minimum Rules for the Treatment of Prisoners (“Nelson Mandela Rules”).
9. SOSMA is a procedural law that is intended for the purposes of investigation and detection of security offences. The predicate security offences are found in Chapters VI (offences against the State), VIA (offences relating to terrorism) and VIB (organised crime) of the Penal Code. SOSMA was intended to complement the substantive legal provisions and predicate offences in our anti–terrorism laws, by providing for, inter alia: (a) limited detention of up to 29 days for investigative purposes of terrorism offences; (b) special procedures for the trial or hearing of terrorism offences in Court; and (c) powers of wiretapping, electronic monitoring, interception of communications, and other forms of surveillance.
10. However, SOSMA should not be a licence to violate constitutional rights with impunity. It certainly should not be abused to criminalise peaceful demands and protests by citizens, that are part and parcel of the parliamentary process. If SOSMA is allowed to be abused in such a manner, it then becomes repugnant to the rule of law. It then will be seen as a revival of the much maligned ISA which the Government repealed in 2012. This would represent a reneging of the promise by the Government.
11. Thank you.