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The Malaysian Bar welcomes Parliament’s rejection of the Government’s motion to extend the effective period of subsection 4(5) of the Security Offences (Special Measures) Act 2012 (“SOSMA”) for another five years.1
After 31 July 2022, the police no longer have the power to detain a suspect up to 28 days for investigations without being brought before a magistrate to be remanded under subsection 4(5) of SOSMA. This is a step in the right direction as Article 5(4) of the Federal Constitution requires any person arrested to be brought before a magistrate within 24 hours and not be further detained in custody without the magistrate’s authority.
By rejecting the Government’s motion, Parliament has signalled that 28 days of detention without judicial oversight is antithetical to the rule of law. The absence of judicial oversight allows the Executive and the police a free rein to abuse such power against human rights defenders and political dissidents, as was done in the case of Maria Chin Abdullah, who was detained and placed in solitary confinement.2 We are also reminded of the detentions and prosecutions of Dato’ Sri Khairuddin Abu Hassan and Matthias Chang.3 None of these individuals were involved in violent behaviour that were tantamount to a public security threat that would warrant an arrest under SOSMA. These individuals were the subject of SOSMA because of their political beliefs and activities.
The Inspector-General of Police (“IGP”), Tan Sri Acryl Sani Abdullah Sani, was reported to have said that he is aware that there are other provisions under the law in force to carry out detentions for suspected acts of terrorism and offences against the State under the Penal Code through court remand orders.4 The Malaysian Bar echoes the IGP’s views that existing laws clothes our law enforcement agency with ample statutory basis and authority to confront such activities without having to resort to preventive detention laws, which are anachronistic and draconian.
Even though Parliament has rejected the Government’s motion, SOSMA as a whole, remains problematic. Most of its provisions have gone beyond stopping or preventing national security threats, and have encroached on the trial of an accused and powers of the Judiciary. SOSMA substantially shifts the goal post in the favour of the prosecution by changing the trial process or established rules on evidence that would otherwise safeguard an accused’s right to fair trial.
The Malaysian Bar has consistently urged the Government to repeal SOSMA in its entirety. National security is not carte blanche for curtailing our fundamental liberties.
Malaysia, being a member of the United Nations Human Rights Council for the 2022–24 term, should take this opportunity to uphold its commitment to the protection of human rights by repealing SOSMA and other preventive detention laws such as the Prevention of Terrorism Act 2015 (“POTA”) and Prevention of Crime Act 1959 (“POCA”).
Human rights and national security are not mutually exclusive, nor are they in conflict with each other. Instead, they are interrelated and complementary. The Malaysian Bar therefore reiterates its clarion call for the Government to repeal SOSMA, POTA, and POCA. Let there be no further attempts to revive debates on any preventative detention laws.
Karen Cheah Yee Lynn
President
Malaysian Bar
25 March 2022
1 “Dewan Rakyat rejects extension of SOSMA 28-day detention”, The Edge Markets, 23 March 2022.
2 “Suhakam confirms Maria kept isolated, without bed”, Malay Mail, 23 November 2016.
3 “Khairuddin, Matthias Chang charged with sabotaging Malaysian banking, financial services”, Astro Awani, 12 October 2015.
4 “PDRM to use other legal provisions after rejection of Sosma subsection motion, says IGP”, Malay Mail, 24 March 2022.