Episode 18: SOSMA: Holding Human Rights Hostage?

In May, the Consti Team examined a topic hot off of recent headlines, the issue of SOSMA amid the Dewan Rakyat’s rejection of a motion to extend its effective period. The article examines SOSMA from a constitutional standpoint and the ways in which it has been enforced upon individuals in the past. The Consti Team discusses how SOSMA infringes human rights as protected by the Constitution in such instances, and goes on to consider the age-old debate as to whether it is high time SOSMA is repealed, or if it is in fact necessary and should be retained as is.

1.0 INTRODUCTION

1.1 SOSMA: A Brief History

SOSMA is arguably one of the most controversial, heavily criticised laws currently in place in Malaysia’s legal system. What is SOSMA exactly and why was it introduced?

The Security Offences (Special Measures) Act 2012 (SOSMA) is an act which, according to its long title, serves to “provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters”.[1] The act was introduced in 2012 and was intended to serve as a replacement for the also controversial former Internal Security Act 1960 (ISA) upon its repeal that same year.

For many, the repeal of the ISA and its draconian provisions was a welcomed decision. However, a large percentage of citizens and those a part of the legal fraternity alike have criticised SOSMA as continuing to be reminiscent of the ISA in the regard that numerous provisions contravene various aspects of human rights. What do these provisions look like? Summing it up in brief, SOSMA confers certain powers to police officers such as the power to arrest and detain a person for a period of 24 hours, to extend the detention period to 28 days and to ‘suspend’ a detainee’s right to meet their family and lawyers for up to 48 hours.[2] In addition to that, those arrested under SOSMA are denied bail and remain in detention until the conclusion of all their legal proceedings, including appeals.[3]

While these provisions were implemented to combat serious security offences, such as those involving terrorist acts; with provisions such as these, abuse of power by certain parties is somewhat foreseeable. In 2020, the investigation under SOSMA of 29 individuals suspected to be members of TCB 21, an organised crime group, made headlines. News was rife with allegations of police misconduct and abuse of the remand process during their detainment.

The reality is that SOSMA in operation has been known to give rise to serious injustices toward detainees, hence the calls for its repeal. As per Karen Cheah, 2022 President of the Malaysian Bar: “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.”[4]

Recently, SOSMA as a whole has once again become the subject of much scrutiny amid Dewan Rakyat’s rejection of a motion on March 23, 2022 to extend the period for subsection 4(5) to remain effective for another five years – the provision granting police special powers to hold individuals arrested and detained under the Act for up to 28 days.[5] Upon a bloc vote, Parliament seemed to be conflicted - only 84 members of Parliament were in favour of the motion, with 86 opposed to it. 50 MPs were absent during the voting.[6]

The crux of the debate remains the same. Those in favour of SOSMA argue that provisions such as subsection 4(5) conferring such powers to the police is essential to ensure the quality of police investigations, as well as to safeguard the nation in the interest of security. On the other hand, there is the ever-present worry that should SOSMA’s provisions continue to remain in effect, abuses of power and injustices against human rights will continue to taint our nation.

It is thus relevant for both sides of this argument to be discussed in deciding whether SOSMA should remain, or if its repeal is long overdue.

2.0 SOSMA ACCORDING TO THE CONSTITUTION

SOSMA is an Act enacted pursuant to Article 149 of the Federal Constitution. Article 149(1) in particular states:

‘Ifan Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation: (a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property’.[7]

Although SOSMA is enacted to prevent security offences, it must be noted that it does not lay down any particular offences of the kind, but merely regulates the trial of the offences.[8] The effect of any law enacted with the goals mentioned in Article 149 is that the provisions of that law is permitted to be inconsistent with Article 5, 9, 10 and 13 of the Federal Constitution.[9] As such, acts enacted under Article 149 such as SOSMA are always under criticism as this constitutional permission to suspend fundamental liberties is always open to abuse.

Indeed, there are provisions in SOSMA that clearly curtail fundamental liberties. An example being s 4(1), which allows a police officer to arrest and detain any person without warrant.[10] Following this, a police officer who is above the rank of Superintendent of Police may extend the period of detention to 28 days for the purpose of investigation.

Individuals detained under SOSMA are no longer passed through the scrutiny of Article 5 any longer, as Article 5 clearly prohibits unlawful detention. Furthermore, the police have the power to extend the period detention more than what is set in the Constitution — 14 days.[11]

However, it is not the case that actions taken under SOSMA can no longer be scrutinised due to the immunity that Article 149 provides. This is because only Articles 5, 9, 10 and 13 are suspended — leaving other provisions of the Constitution able to challenge SOSMA. There are even instances where the court has ruled that certain provisions of SOSMA are unconstitutional, particularly s 13 of the Act, which prohibits individuals charged with a security offence under SOSMA to be released on bail. [12]

In Saminathan Ganesan v PP, the applicant argued that the prohibition against granting of bail in s 13 is unconstitutional on the basis that it contravenes Article 121. It was argued that the power to consider bail is a judicial power, hence, any outright prohibition by Parliament would amount to a usurpation of the judicial function. [13]

Mohd Nazlan J agreed with the applicant’s grounds. His Lordship opined that judicial power is vested in the Judiciary, and in turn, judicial power must be protected by retaining the tenet of separation of powers.[14]

Unfortunately, the courts are divided on this matter. In Suresh Kumar a/l Velayuthan v PP, the High Court found that s 13 is constitutional on the basis that it fulfils the proportionality test. The court held that s 13 fulfils the object of SOSMA and the prohibition against bail is not out of proportion.[15]

3.0 CRITICISMS OF SOSMA

3.1 Easily abused as a political tool

The most common argument against SOSMA is that the government abuses it to oppress and silence their political enemies. The government claimed that SOSMA was merely used to deal with terrorism and serious crimes, and section 4(3) of the Act itself prohibited the usage of the Act to arrest or to detain any person solely on the grounds of his political belief or activity. In reality, SOSMA is often used to detain and arrest politicians from the opposition.

To exemplify, Petaling Jaya MP Maria Chin’s detention in 2016 was claimed by opposition leaders to have been conducted for the government’s political benefit. At that time, Maria Chin, also the chairman for Bersih 2.0, was detained under SOSMA for 28 days due to involvement in “activities detrimental to parliamentary democracy”. Arguably, what she was doing was quite the contrary as she was pushing for a fair democratic process. Her living condition while in detainment was reported to have been inadequate, as her bed had no mattress, her cell had no window and the lights were always on. The government’s subsequent agreement to pay compensation to Maria Chin in a sense indicates that the government had admitted wrongdoing during the course of this detention.

To add on, Maria Chin’s detention is not the sole incident in Malaysia of the abuse of SOSMA. Khairuddin Abu Hassan, a former PH member and his lawyer were also detained for “sabotage” when in actuality he was advocating for fair elections and lodging reports against 1MDB. Furthermore, many politicians, inter alia, Mohamad Sabu, Khalid Samad, Lim Guan Eng, Anwar Ibrahim have also been detained under SOSMA. Thus, it is reasonable for political dissidents to worry that SOSMA will be used against them should they voice their political beliefs or advocate for political change that those in power oppose.

3.2 No chance for detainee to complain about abuse of power

SOSMA is also often criticised for not allowing the detainees the chance to lodge a complaint about any abuse of power during their detention.

There have been various allegations by SOSMA detainees that they were humiliated, tortured and cruelly punished throughout their detention. However under the current law, they have no legal passage to lodge a complaint. For that reason, they have no rights to take legal action against police officials who mistreated them throughout the course of their detainment, leading to injustice.

In order to overcome this, Puchong MP Gobind Singh Duo has requested for the government to come out with a specific mechanism, in which within 14 days of detention, the detainee has to be brought to the magistrate for an extended period of detention to be granted. At that instance, the detainee is afforded the opportunity to lodge any complaints they may have regarding any mistreatment during their detention, thus serving to protect them from abuse and mistreatment while in police custody.

3.3 Existing law is sufficient

In addition, critics argue that other existing laws are sufficient to cover security threats to the country. Therefore, there is no need for the existence of a draconian law such as SOSMA. Criminologist Datuk Dr P. Sundramoorthy was of this view. He stated that the Criminal Procedure Code and the Penal Code are sufficient for the police to handle terrorist threats and those who commit security offences. Current police officers are already highly educated and trained with the latest investigative methods. For that reason, procedural laws like SOSMA are obsolete and no longer necessary.

Furthermore, the Penal Code and the Criminal Procedure Code had already given the government and other relevant authorities power to combat crimes and to maintain stability, a fact acknowledged by our Inspector-General of Police. Ergo, there is no justification and room for the establishment of such an anachronistic and draconian law in our country.

4.0 IMPACTS OF REPEALING SOSMA

4.1 Advantages

Repealing such an arguably draconian law as SOSMA, would bring with it several advantages that have been emphasised on by the Malaysian public:

4.1.1 Allows equality in procedural matters

The application of SOSMA provides law enforcers with unparalleled authority over the accused to the point where it infringes with international human rights standards. Thus, its repeal will reintroduce a standardisation of criminal and evidence procedures towards the accused.

With SOSMA, one must ask the question: to what extent would fairness and equality be cast aside in the interest of the preservation of national security? The reality is, the application of SOSMA has already been extended beyond its original purpose, that is "to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters" following the 2013 Lahad Datu standoff. SOSMA has subsequently been met with approval despite contravening with provisions of the constitution.[16] Unfortunately, SOSMA has also been subject to varying degrees of controversy. One example is the detention of Maria Chin Abdullah as stated earlier which led to the raiding of the Bersih 2.0 office by law enforcement authorities.[17] This event raises questions about the justification of applying SOSMA towards these Bersih rallies; do they pose a serious threat to national security?[18]

Furthermore, SOSMA has come under criticism by the judiciary as the court held that the provision that denies bail for male detainees contravenes article 8 and article 5 of the Constitution.[19]

4.1.2 Increase public trust towards law enforcement

The usage of SOSMA allows for discretionary powers to be exercised by the Royal Malaysian Police in the procedural handling of detainees. This reduces the check and balance measures police may be subjected to in order to ensure there is no abuse of power. A lack of transparency creates the possibility of the police engaging in unethical conduct when dealing with the detainees that at times infringes their basic rights. Such instances can be seen through the claims of abuse and severe neglect by detainees during their detention. This in turn casts doubt and mistrust toward the police in their handling of such affairs. Hence, an abolishment of SOSMA in favour of legislation that specifies and emphasises on transparency and accountability of the police will increase the public’s confidence in matters of their capability and integrity.

4.2 Disadvantages

While it may be time for SOSMA to be repealed, doing so would not be easy and may cause several disadvantages due to the disturbance of the status quo from the act being in force since 2012:

4.2.1 May create strife

The dialogue surrounding the repeal of SOSMA has been met with much hostility as if its provisions are somewhat sacred. The Home Minister, Datuk Seri Hamzah Zainudin has stated that those who do not agree with SOSMA are those who intend for terrorists to infiltrate and threaten the country’s security. He further stated that this applies to parties who did not want to support the parliamentary motion to extend the detention period for detainees to 28 days for another five years starting from 31 July 2022.[20] This rhetoric of “either you are with us, or against us” would create tensions in our society. This black and white perspective is not helpful as there needs to be a recognition that merely disagreeing with SOSMA’s application does not equate an intention to threaten our country’s security.

4.2.2 Increase the vulnerability of Malaysia’s national security

Despite its controversies, there can be no objection that SOSMA does, in fact contribute in the effort to strengthen Malaysia’s peace and security. Despite having sincere intentions when criticising SOSMA, opposing parties often are not aware of the impending threats caused by subversive elements that wish to undermine our country’s sovereignty. Therefore, it is important to ascertain the available data to know of SOSMA’s success or failure in maintaining the security of the nation.

In recent years, there has been a rise in terrorism in Malaysia due to an increasing number of external and internal threats. With regard to this arising issue, law enforcement agencies have been doubling down on efforts to curb it. Between 2013-2017, there have been 19 planned attacks that have been successfully curbed by the Royal Malaysian Police (RMP). Furthermore, as of April 2018, there have been 389 individuals that have been detained due to terrorism offences. Around three quarters of these detainees are Malaysians while the rest are foreigners.

Furthermore, more than 450 people have been arrested in Malaysia for suspected links to terrorism from 2013-2018.[21]

4.2.3 Reduce the comprehensiveness of Malaysia’s security measures

It would be unfair to analyse SOSMA as the sole measure to counter national threats and those suspected of engaging in terrorism. No doubt if SOSMA were to stand as the sole preventive measure, then it would be fair to judge it as being draconian. However, Malaysia has also taken into account softer measures in tandem with these hard approaches. Beyond legislative measures that bring forth hard consequences, Malaysia has also adopted ‘softer’ measures in an effort to deradicalise militants and dissidents that have been punished under SOSMA. These include counselling, spiritual guidance to rectify their misunderstanding of religious texts and vocational training in an effort to re-integrate them back into society. These counselling and guidance are also extended to members of their family. Thus, these measures are wholesale in nature and are successful in stopping militants.[22] If SOSMA were to be repealed, it would be harder to identify and prosecute these individuals and efforts to deradicalise them would be impeded. Hence, despite its harsh nature, SOSMA can be seen as a necessity for the greater good in terms of our national security. Where SOSMA comes under criticism is that this Act extends to political dissidents rather than just possible militants. Perhaps a revision of where SOSMA would be applicable is recommended for its effectiveness.

5.0 CONCLUSION

Based on the discussion above, it can be said that where human rights are concerned, SOSMA in its current form is undoubtedly a blemish in Malaysia’s legal framework. SOSMA as it stands today which so clearly deprives detainees of certain basic rights such as the right to fair trial is just enough cause for its effectiveness and necessity in our nation to be re-evaluated.

Malaysia’s role in upholding human rights should be given great importance, especially seeing as Malaysia has pledged itself as a signatory to international conventions for this purpose. Malaysia is also notably a member of the United Nations Human Rights Council for the 2022–24 term, and as such, laws such as SOSMA which are clearly antithetical to the equal rights of all before the law reflect badly on our stance on the protection of such rights.

If the call is for SOSMA to remain in effect, a thorough review of its provisions is needed and necessary amendments should be made to ensure a just outcome for all those subject to its provisions. Echoing the sentiments of many, including the Malaysian Bar, repeal of SOSMA may be justified in Malaysia’s current state today – whereby we now as a nation have existing laws which are arguably sufficient to combat security threats without the need for preventative detention laws as extreme as SOSMA. An example being, court remand orders as allowed under the Penal Code to detain those suspected to be involved with terrorist acts or offences against the State.[23]

In any case, SOSMA debate aside, it is imperative that other avenues or legal solutions be explored and employed to curb terrorism and crime, that do not blatantly jeopardise the rights of those subject to it. To once again quote Karen Cheah, President of the Malaysian Bar, “Human rights and national security are not mutually exclusive, nor are they in conflict with each other. Instead, they are interrelated and complementary.”[24] In line with this view, it is important that one is not enforced to the detriment of the other.

References

[1] Special Offences (Special Measures) Act (Act 747).

[2] Global Bersih. (n.d.). SOSMA 2012. Global Bersih. Retrieved from https://www.globalbersih.org/resources/malaysian-laws/sosma/. Site accessed on 20 May 2022.

[3] See footnote 2 above.

[4] Cheah, K. Y. L. (2022, March 25). Press Release: Repeal SOSMA in Its Entirety. Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-repeal-sosma-in-its-entirety>. Site accessed on 20 May 2022.

[5] Shazni Ong. (2022, March 23). Dewan Rakyat rejects extension of SOSMA 28-day detention. The Edge Markets. Retrieved from <https://www.theedgemarkets.com/article/dewan-rakyat-rejects-extension-sosma-28day-detention>. Site accessed 20 May 2022.

[6] See footnote 5 above.

[7] Federal Constitution, art 149(1).

[8]PP v Yazid Sufaat & Ors [2015] 1 MLJ 571 (HC) [10].

[9] Federal Constitution, art 149(1).

[10] Special Offences (Special Measures) Act (Act 747), s 4(1).

[11] Federal Constitution, art 5(4).

[12] Special Offences (Special Measures) Act (Act 747), s 13(1).

[13]Saminathan a/l Ganesan v PP [2020] 7 MLJ 681 (HC) [18].

[14]Saminathan a/l Ganesan v PP [2020] 7 MLJ 681 (HC) [39].

[15]Suresh Kumar a/l Velayuthan v Public Prosecutor [2020] 10 MLJ 549 (HC) [107]-[110].

[16] Leong, C. (2014) Speech by Christopher Leong, President Malaysian Bar. Malayan Law Journal. 1, 84. Retrieved from <https://advance-lexis-com.ezproxy.um.edu.my/document/?pdmfid=1522468&crid=6b5ea84c-407b-4c33-91d1-15da47ea7b97&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-my%2Furn%3AcontentItem%3A5RHW-9901-JNY7-X0R7-00000-00&pdcontentcomponentid=235220&pddoctitle=Speech+by+Christopher+Leong%2C+President+Malaysian+Bar+%E2%80%94+%5B2014%5D+1+MLJ+lxxxiv&pdteaserkey=sr1&pdicsfeatureid=1521734&pditab=allpods&ecomp=sdJsk&earg=sr1&prid=e1df1915-02a7-4659-9eaf-73e97273a841>. Site accessed on 26 May 2022.

[17] The Malay Mail. (2016). Suhakam confirms Maria kept isolated, without bed. The Malay Mail. Retrieved from <https://www.malaymail.com/news/malaysia/2016/11/23/suhakam-confirms-maria-kept-isolated-without-bed/125639>1. Site accessed on 27 May 2022.

[18] Tay, W. T. V. (2019). Subversion and Emergency Powers. Malayan Law Journal. 1(4), 73, 86. Retrieved from <https://advance-lexis-com.ezproxy.um.edu.my/document/?pdmfid=1522468&crid=c3faf89d-c394-4d22-be55-3eb782a1d3c9&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-my%2Furn%3AcontentItem%3A5RHY-KS01-F2MB-S0F2-00000-00&pdcontentcomponentid=235220&pddoctitle=Subversion+and+Emergency+Powers+%E2%80%94+%5B2019%5D+4+MLJ+lxxiii&pdteaserkey=sr0&pdicsfeatureid=1521734&pditab=allpods&ecomp=sdJsk&earg=sr0&prid=152e0797-c644-4780-83e4-9dabfb990c54>. Site accessed on 26 May 2022.

[19] N. S. W. (2020). Seven years ago today: Looking back at the first case under SOSMA. Amerbon Advocates. Retrieved from <https://www.amerbon.com/blawg/seven-years-ago-today-looking-back-at-the-first-case-under-sosma>. Site accessed on 25 May 2022.

[20] Ikhwan Zulkaflee (2022). Malaysia Will Be Dominated By Criminals And Terrorists If We Don’t Enforce Sosma” Says Home Minister On 28-Day Detention Period. The Rakyat Post. Retrieved from <https://www.therakyatpost.com/news/2022/03/23/malaysia-will-be-dominated-by-criminals-and-terrorists-if-we-dont-enforce-sosma-says-home-minister-on-28-day-detention-period/>. Site accessed on 28 May 2022.

[21] Arianti, V., Sobirin, A. et. al. (2020). SOUTHEAST ASIA: Indonesia, Philippines, Malaysia, Myanmar, Thailand, Singapore. Counter Terrorist Trends and Analyses, 12(1), 5, 18. Retrieved from <https://www.jstor.org/stable/26865751>. Site accessed on 27 May 2022.

[22] Muhammad Haziq Jani. (2017). Malaysia: Counter Terrorist Trends and Analyses. International Centre for Political Violence and Terrorism Research. 9(1), 18, 19. Retrieved from <https://www.jstor.org/stable/26351477>. Site accessed on 27 May 2022.

[23] See footnote 4 above.

[24] See footnote 4 above.