©The Sun Daily (Used by permission)
by Himanshu Bhatt
THERE was an unusual stir during lunchtime on Feb 7 at the canteen of the Kuala Lumpur court complex, when a Police team suddenly swooped in to detain a cafeteria operator there.
Leaving aside the drama of the moment, the incident was actually much more significant than what the surprised onlookers there may have thought. That it took place right within the nation's house of justice must have amplified how symbolic the detention was to our very code of law.
The cafeteria operator, Yazid Sufaat, was a former detainee of seven years under the Internal Security Act (ISA) which was repealed last year. He was now detained under the controversial Security Offences (Special Measures) Act 2012 (SOSMA) – the very legislation put in place to replace the ISA.
Detained alongside him was his cafeteria assistant Mohd Hilmi Hasim. A few hours later, another person, Halimah Hussein, was picked up elsewhere, also under SOSMA.
They trio were the first individuals to be detained and charged under the act, since the widely publicised repeal of the ISA last year.
The government has since last year worked hard to deflect criticisms against SOSMA, by maintaining that it is an improvement over the ISA.
For example, at a recent law conference the Attorney–General, Tan Sri Abdul Gani Patail, pointed out that Subsection 4(3) of SOSMA expressly provides that no person is to be arrested under the Act solely for his political belief or political activity. Additionally, Section 4 only permits detention of up to 24 hours for investigations.
However, the Malaysian Bar Council has pointed out deficiencies in SOSMA since April 2012. Among the many factors it has raised is the extension of the detention period which it says should be subject to judicial oversight – and not by way of a decision of a police officer of or above the rank of Superintendent.
Under SOSMA, a person may be detained for a further 28–day period on police authority, after which a decision should be made as to whether the person should be prosecuted based on the evidence gathered.
Also, Bar Council president Lim Chee Wee has stressed that the definition of a security offence in SOSMA as an act that is prejudicial to national security or public safety, is too wide. There needs to be more precise and better definition, such as what is found in the United Nations Convention for the Suppression of the Financing of Terrorism.
Among the other recommendations proposed by the Bar Council was that the power to intercept communications should be exercised by a judge, and for solicitor–client communication to be protected.
"In particular, the radical departure from the ordinary rules of evidence may negatively impact on the accused's right to a fair trial. Counter–terrorism laws, policies and decisions must not usurp the very rights and freedoms that the terrorists themselves are threatening," said Lim.
Interestingly enough, earlier this month, international human rights research and advocacy group Human Rights Watch (HRW) said it its annual World Report that Malaysia is "backsliding on human rights".
HRW Asia deputy director Phil Robertson said despite several reforms, protections for basic liberties in Malaysia still have not significantly improved.
Among other things, HRW criticised SOSMA for permitting police to authorise communication intercepts and for allowing prosecutors to bring up evidence without disclosing sources. Furthermore, acquitted suspects in the midst of an appeal may still be detained in prison or tethered to a monitoring device until the appeal is settled.
The HRW however did describe the reduction in the initial detention without charge from 60 days to 28 and the requirement that a suspect be charged in court or released thereafter, as positive points.
There has been much debate between the authorities and human rights activists over the merits of such concerns. There are also worries that notwithstanding the contentious points of law in the Act, it can be subject to abuse.
Mind you, lawyers for SOSMA detainee Hilmi had on Feb 13 lodged a report against the Police for allegedly denying his right to legal representation. Lawyer Fadiah Nadwa Fikri said the report was lodged after two of Hilmi's lawyers were not allowed to see him despite the new law allowing Police to deny such access for only 48 hours.
Meanwhile, Hilmi has filed a habeas corpus application to be released from police detention.
Yazid was charged for promoting violence to intimidate the public in Syria, while Halimah was charged with abetting him in committing the same offence. Both have claimed trail.
The dramatic detentions and trial will be something that will be closely monitored over the next few months. Like it or not, the incident has now cast a spotlight over the question of how much of an improvement SOSMA really is compared to the ISA it replaces.
Himanshu is theSun's news editor. Comments: letters@thesundaily.com