The Malaysian Bar welcomes the recent announcement by Prime Minister, Tun Dr Mahathir Mohamad, that the Government will table amendments to laws that are considered draconian. It was reported that the Government will be considering amendments to "fix certain areas in these laws that allow for arrests without charges".1 This is a particularly poignant commitment, as it appears to have been made in the wake of the recent use of the Security Offences (Special Measures) Act 2012 ("SOSMA") against 12 individuals allegedly linked to the Liberation Tigers of Tamil Eelam ("LTTE"). These persons were arrested, detained, and denied bail under SOSMA, and were only charged nearly two weeks later.
It is the position of the Malaysian Bar that SOSMA be repealed in its entirety. Piecemeal amendments to SOSMA will not suffice as we believe that SOSMA is an unnecessary piece of legislation that has resulted in arbitrary powers to the police that substantially erodes the right of an accused to a fair trial, and undermines the protections and fundamental liberties contained in the Federal Constitution.
SOSMA serves as a procedural law, side-stepping the Criminal Procedure Code ("CPC"), that works in tandem with the predicate offences provided in Part VIA of the Penal Code. SOSMA and the various amendments to the Penal Code, Evidence Act 1950, and CPC were introduced as part of an "anti-terrorism" legislative package in 2012, ostensibly to replace the repealed Internal Security Act 1960.
SOSMA provides for various provisions designed to tackle terrorism, including detention for investigative purposes, special procedures for the trial or hearing of terrorism offences in Court, and powers of surveillance. However, these provisions also contain draconian elements that run counter to the rule of law. SOSMA provides for an accused person to be arrested without a warrant, and detained for up to 28 days without being brought before a magistrate. SOSMA also provides that "Bail shall not be granted to a person who has been charged with a security offence".2
The Malaysian Bar believes that there are existing laws, such as the Penal Code and Criminal Procedure Code, which are tried and tested, and accord accused persons fundamental liberties in the trial process, and are sufficient to address such crimes. If found insufficient, the solution lies in amending existing non-draconian laws or enacting new laws that observe the rule of law.
Further, the conflicting reports -- from the detainees and the Government -- of mistreatment, torture and intimidation while in custody, does not augur well for a Government that prioritises the rule of law. To this end, the Malaysian Bar calls for an immediate investigation be carried out to ascertain the truth of the allegations.
Such scenarios should no longer arise. The Malaysian Bar has, through the years, repeatedly called for the urgent repeal of SOSMA, having seen its abuse in the past, and recognises its potential for misuse, going forward. While the current Government has pledged in its Election Manifesto to "abolish draconian provisions in ... [SOSMA]", and the total repeal of other draconian and oppressive laws,3 what we have seen instead is flip-flopping and reneging on these promises. The Malaysian Bar hopes that the Government's reiteration of their commitment to this pledge bears tangible results.
The Malaysian Bar is cognisant of the Government's need to maintain national security. However, this must always be done in harmony and recognition of constitutional guarantees and the rule of law. SOSMA as it stands, has no place in a democratic nation, and is an affront to the principles of natural justice.
The Malaysian Bar stands ever ready to assist the Government in executing this pledge.
Abdul Fareed Abdul Gafoor
President
Malaysian Bar
7 November 2019
[1] "Sosma, other draconian laws to be amended soon, says Dr M", Free Malaysia Today, 5 November 2019.
[2] SOSMA, section 13(1).
[3] Promise 27, Buku Harapan.