Friday, November 25, 2016

Your KiniGuide to Security Offences (Special Measures) Act


  KiniGuide     Published     Updated
KINIGUIDE The arrest of Bersih chairperson Maria Chin Abdullah has sparked renewed calls to abolish the Security Offences (Special Measures) Act 2012 (Sosma).
Her detention under Sosma since Friday last week has thus far sparked at least two protest marches, and three nights of protests close to Dataran Merdeka.

What is this law, and why do its opponents deem it ‘draconian’? In this instalment of KiniGuide, we will take a look at Sosma’s 33-pages and why it has become so controversial.

What is Sosma?
Sosma was passed by the Dewan Rakyat on April 17, 2012, to replace the Internal Security Act 1960 (ISA), after longstanding complaints that ISA is a draconian law that is prone to abuse.

Sosma provides the police with more powers to detain people and conduct investigations, and more leeway for prosecutors on what evidence they can tender in court.

This is meant to help authorities tackle security offences, particularly terrorism.

It was enacted pursuant to Article 149 of the Federal Constitution, which allows for laws to tackle subversion, organised violence and other threats to be valid even if such laws violate some of the fundamental liberties provided by the constitution.

Why the fuss now?
Even during the debates in Parliament that led to Sosma being passed, concerns were raised that Sosma would be abused for political purposes, despite its safeguards.

For Sosma’s critics, last Friday’s arrest of Maria is a further vindication of those fears.

Similar concerns had also been raised late last year, after the former Batu Kawan Umno division vice-chief Khairuddin Abu Hassan and his lawyer Matthias Chang were arrested.
Khairuddin and Chang were held under Sosma and were subsequently charged under Section 124L of the Penal Code, for trying to sabotage Malaysia’s banking and financial services sector.
charged

What does Sosma do?
Sosma provides additional powers to the police and to the prosecution, superseding those provided under the Criminal Procedure Code (CPC) and the Evidence Act 1950.

For example, under the CPC, the police may only detain a suspect for up to 24 hours to facilitate investigations.

If it is deemed necessary to detain the suspect further, the police would have to go to court to apply for a remand order. The magistrate may or may not grant the full amount of time requested by the police, or turn down the request altogether and order the suspect’s release.

A remand period may last up to 14 days, including a one time extension, depending on the offence being investigated.

In contrast, Sosma allows the police to detain suspects who are investigated for a security offence to be held for up to 28 days, without any judicial oversight.

Under Sosma, the police may also compel married persons to disclose the communication between them, although such compulsion is ordinarily prohibited under the Evidence Act 1950.

In addition, bail will not be granted for those charged with a security offence. This means the accused would have to remain in prison for the duration of his trial.

The exception is for a person is underaged, a woman, or if sick or infirm, in which case the accused may be released on bail, but with an electronic monitoring device attached.

Trials under Sosma also allow for ‘protected witnesses’, who would testify in court behind a closed door and in the absence of the accused or his counsel.

When do Sosma’s ‘superpowers’ apply?
Sosma’s ‘superpowers’ apply to offences under Chapters VI, VI-A, VI-B of the Penal Code, Part III-A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, and the Special Measures Against Terrorism in Foreign Countries Act 2015.

These offences are defined as security offences under Sosma.

Examples of provisions that come under Sosma include Section 124L of the Penal Code (Attempt to commit sabotage) and Section 124C (Attempt to commit activity detrimental to parliamentary democracy).

Section 124C is the offence that Maria is being investigated for, whereas Section 124L is the offence Khairuddin and Chang are accused of.

Both come under the Chapter VI of the Penal Code, which deals with offences against the state.

Meanwhile Chapter VI-A of the Penal Code deals with terrorism, while Chapter VI-B deals with organised crime.

Part III-A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 deals with the smuggling of migrants, while the Special Measures Against Terrorism in Foreign Countries Act targets those travelling abroad from Malaysia to commit acts of terrorism.

Does it always apply to these offences?
There appear to be some exceptions.

After Khairuddin and Chang had been charged under Section 124L of the Penal code, they were initially denied bail under Sosma.

However, the High Court in Kuala Lumpur later ruled that Khairuddin and Chang’s alleged offence do not fall under Sosma and allowed them to be released on bail.

High Court e judge Mohd Azman Husin said this is because financial services - which the duo are accused of sabotaging - do not come under the ambit of Article 149 of the Federal Constitution.

Article 149 is applicable only in six different situations, such as when a substantial body of people threatens to promote ill-will and hostility between different races, or to excite disaffection against the Yang Dipertuan Agong or the government.

What safeguards are there?
Section 4(3) of Sosma states, “No person shall be arrested and detained under this section solely for his political belief or political activity,” referring to the section that deals with the power of arrest of detention.

This includes the power of the police to detain a person suspected of a security offence for up to 28 days.

“Political belief or political activity” here, is defined as lawful activities that, among others, include the expressions of opinions or the pursuit of actions that are directed toward any government in Malaysia.

Members of registered political parties engaging in the activities of their parties are also protected from arrest and detention under Sosma.

This is because ‘the expression of an opinion or the pursuit of a course of action made according to the tenets of a political party’ is considered to be a political belief or activity under Sosma.

In addition, the power of the police to extend the detention period from one day to a maximum of 28 days has a ‘sunset clause’.

If the power to extend the detention period is not renewed by both Houses of Parliament every five years, it automatically becomes null and void.

Another safeguard is the judiciary. An aggrieved person who believes he or she is unlawfully detained may file a habeas corpus application to the court.

If the court determines that the person is indeed being held unlawfully, the court may direct for his or her immediate release.

This is the course of action currently being pursued by Maria’s lawyers.


This instalment of KiniGuide is compiled by Koh Jun Lin.

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