Tommy Thomas wonders if the Security Offences Bill is constitutional. The much inferior treatment of an accused when prosecuted under the Bill violates the fundamental right to equality, he points out.
Congratulations to Prime Minister Najib Razak, who has single-handedly taken the necessary action to repeal the dreaded Internal Security Act, 1960 (“ISA”): Clause 32 (1) of the Security Offences (Special Measures) Bill 2012expressly says so.
It is fitting that 52 years after his late father, Tun Razak, moved the ISA Bill in Parliament, he goes into the history books as the leader who piloted its abolition. His achievement is all the greater because his zeal to make Malaysia a freer country does not seem to be shared by his Cabinet — which has been conspicuously silent — or by law enforcement agencies like the Attorney-General, Police and other bureaucracies.
The abolition of the ISA must be seen against the background of the revocation in October 2011 of the four Emergencies which have scarred the national psyche for nearly the entire duration of Malaysia’s nationhood since Merdeka. The result is much greater space and freedom for our people, and is welcome.
A. “Special Offences”
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The Security Offences (Special Measures) Bill 2012(“the Security Offences Bill”), as the name suggests, is a Bill providing for special measures relating to security offences. Clause 3 defines “special offences”to mean the offences specified in the First Schedule. Categories of security offences are listed in the First Schedule. Both categories are already found in the Penal Code. The first category is “Offences against the State”,which appear in Chapter VI of the Penal Code, that is, from Sections 121 to 130A. The second category is “Offences relating to Terrorism”,which can be found in Chapter VI A of the Penal Code, that is, from Sections 130B to 130T.
“Offences against the State” include waging or attempting to wage war against the Yang di-Pertuan Agong, Rulers or Yang di-Pertuan Negeri (“the Rulers”), hurting the Rulers, deposing the Rulers, overthrowing by criminal force the government of Malaysia or of any of the states and assaulting Members of Parliament or State Legislative Assembly members in their exercise of their duties. All these offences share a common theme of force being used or intended to be used in order to obtain their objectives, which are to overthrow the government or to harm members of the different branches of government.
“Offences relating to terrorism” concern acts of a “terrorist”, who is defined as a person who commits or attempts to commit any terrorist act or participates in or facilitates the commission of any terrorist act. Section 130B (2) of the Penal Code defines a “terrorist act”to mean “an act or threat of action within or beyond Malaysia” where
— the act done or the threat made is with the intention of advancing a political, religious or idealogical cause; and
— the act or threat is intended or may reasonably be regarded as being intended to
(i) intimidate the public or a section of it; or
(ii) influence or compel any government, whether in Malaysia or elsewhere, or any international organisation to do or refrain from doing any act.
Under Section 130B(3) an act or threat of action includes causing death, serious bodily injury, serious damage to property, use of firearms, interference with any computer or communication systems, interference with police, or actions which prejudice national security or public safety.
The specific terrorist offences provided for in the Penal Code from Sections 130C to 130T include committing terrorist acts, providing explosives, recruiting persons to join terrorist groups, providing training or facilities to terrorists, giving of support, directing terrorist activities and engaging in criminal conspiracy.
B. Why the Bill?
The first observation to make is that the “security offences”under the Security Offences Bill already exist as offences under the laws of Malaysia, that is, by virtue of Chapters VI and VIA of the Penal Code, which came into force in 2007. Why is it therefore necessary for Parliament to legislate on a second occasion the exact same offences using the exact same language? The simple answer is that those accused of committing these offences under the Special Offences Bill will be prosecuted and tried in a very oppressive manner when compared to a prosecution and trial under the Penal Code. This seems to be the raison de’ etreof the Special Offences Bill. I wonder if Prime Minister Najib has been properly briefed that this is the consequence of the Bill?
That this seems to be the only intention for enacting the Special Offences Act becomes clear by a brief review of its provisions. Part II confers special powers on the police for security offences. Clause 4(1) empowers a police officer, without warrant, to arrest and detain any person “whom he has reason to believe to be involved in security offences”. The person can be detained for a maximum period of 28 days for investigation under Clause 4(5). Even after release, an electronic monitoring device may be attached to that person by an Order of Court under Clauses 4 (6) and 7(1). A detainee may be kept in communicado, and no notification of his detention is to be made to his next-of-kin or lawyer for a period of 48 hours: see Clause 7.
Part IV of the Bill contains special procedures relating to sensitive information. Clause 8(1) provides that notwithstanding Section 51A of the Criminal Procedure Code (“CPC”), if the trial of a security offence involves “matters relating to sensitive information”,the Court shall conduct any hearing pertaining to the use of such sensitive information in camera, and may rule whether such sensitive information may be admissible as evidence or even disclosed to the accused: see Clause 8 (7). Clause 8 (8) states that any such decision of a Court cannot be appealed from.
Accordingly, the expression “sensitive information”is of paramount importance. It is defined in Clause 3 to mean:
any document, information and material
(a) relating to the Cabinet, Cabinet committees and State Executive Council; or
(b) that concerns sovereignty, national security, defence, public order and international relations
whether or not classified as ‘Secret’ or ‘Confidential’.
This is an incredibly wide definition, and essentially covers every governmental document, information or material. Thus, whistle-blowers who intend to make public wrong doings of ministers or civil servants may come under this category, provided, of course, that they are charged for a security offence.
All security offences shall be tried by the High Court (as opposed to the magistrates or sessions court). The general rule is that bail shall not be granted to a person who has been charged with a security offence: see Clause 13 (1). However, minors, women or sick persons, if charged, may be released on bail, but they would be attached with an electronic monitoring device.
Perhaps the worst treatment for any person who is to be charged for security offences under the new law when compared to being charged under the Penal Code is to be found in Part VII of the Bill, which takes away any protection given to the accused by the Evidence Act,1950(and the cases decided thereunder) during the course of his trial. Thus, statements made by any person who is dead or cannot be found or incapable of giving evidence shall be admissible as evidence under Clause 18. This would be unjust and unfair because such a person/witness cannot be cross-examined on his statement. Other unacceptable inroads into a fair trial include allowing the use of testimony of a child of tender years, even if uncorroborated and not given under oath, and of accomplices and agents provocateurs.
C. Justification for the Bill
How does the drafters of this Bill justify its enactment when it violates equality protection under Article 8 of the Federal Constitution because of its oppressive treatment viz-a-viz the Penal Code (together with the CPC and the Evidence Act)? Article 8(1) provides that all persons are equal before the law and entitled to the equal protection of the law. The answer is an attempt to classify the Bill as a special law pursuant to Article 149 of the Federal Constitution. Thus, the Recitals to the Bill reproduce the language used in Article 149 (1) in an attempt to come within it. It reads :
WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia —
(1) to cause, or to cause a substantial number of citizen to fear, organised violence against persons or property;
(2) to excite disaffection against the Yang di-Pertuan Agong;
(3) which is prejudicial to public order in, or the security of, the Federation or any part thereof; or
(4) to procure the alteration, otherwise than by lawful means, of anything by law established.
AND WHEREAS Parliament considers it necessary to stop such action.
Articles 149 to 151 make up Part XI of the Federal Constitution which is entitled — “Special Powers against subversion, organised violence, and acts and crimes prejudicial to the public and Emergency Powers.”
Article 149 confers powers on Parliament to pass laws against subversion, action prejudicial to public order, etc. Article 149(1) contains six conditions precedent which have to be satisfied before such laws can be passed. Four of these conditions are recited in the Securities Offences Bill. From the government’s perspective, the advantage of an Article 149 law is that it is valid “notwithstanding that it is inconsistent with any of the provisions of Articles 5, 9, 10 or 13”of the Federal Constitution. But, a breach of Article 8 is not permitted by a law enacted under Article 149.
Article 150 of the Federal Constitution is significantly relevant when interpreting a law passed by Parliament under Article 149 because it empowers the Proclamation of Emergency upon satisfaction “that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened”.Such a satisfaction by the Executive warranting the Declaration of Emergency must be made on objective grounds, and is reviewable by the Courts: see the important constitutional case decided by the Privy Council : Teh Cheng Poh v. PP  1 MLJ 50.
In that case, which was an appeal from Malaysia, Lord Diplock stated that for laws to be passed by Parliament under Article 149, they “must be taken bona fide for the purpose of stopping or preventing subversion action of the kind referred to in the recitals of the Act in order to be valid”. Thus, any laws enacted by Parliament “must be designed to stop or prevent that subversion action and not to achieve some different end”.
D. Constitutionality of the Bill
In consequence, in order for the Security Offences Bill to be constitutional it must be a valid exercise by Parliament of its powers under Article 149(1) of the Federal Constitution. In other words, the Bill must be a genuine legislative solution to the problems recited in the Bill which must actually exist. It is an objective yardstick. An examination of the Bill will indicate that problems recited do not exist in Malaysia in April 2012, decades after independence.
Thus, no action “has been taken”or “further action is threatened by a substantial body of persons”to achieve any of the four conditions. To start off, there is no evidence of violence against the State by any person or organisation, let alone “organized violence”. It was claimed in 1960 when the ISA was introduced that it was necessary to arm the nation with adequate legal powers to cope with violence that had been organised and carried out by Chin Peng’s Malayan Communist Party since 1948. Malaysia is blessed that in 2012 no similar threat of violence exists. Likewise, a “substantial body of persons”is not exciting disaffection against our King, threatening our national security or public order or attempting to change by unlawful means anything in our system. The best proof that even the government accepts that normalcy has fully returned to the nation is the revocation of the four Emergencies last year.
In consequence, the constitutionality of the Special Offences Bill is in grave doubt for at least two reasons. First, there is the issue of whether Parliament can pass such a law in circumstances when the conditions precedent to a valid exercise of power under Article 149(1) of the Federal Constitution do not exist at the present time. Second, there is the question of whether the much inferior treatment of an accused when prosecuted and tried under the Bill when compared to being prosecuted and tried for the very same offence under the Penal Code violates the fundamental right of equality under Article 8(1).
E. 9/11 Paranoia
Civil liberties across the globe suffered major setbacks after the 9/11 attack in New York. Hence, the past decade has not been happy for the protection of human rights worldwide. The worst examples are the United States and United Kingdom (after the 7/7 attack in London). The laws in the two Anglo Saxon nations have been substantially changed to the detriment of individual rights. The State has been given massive power, unprecedented in history, all in the name of the “War on Terror”(whatever that nebulous concept may mean!). The worst law is probably the Patriots Act of the USA, and the most well-publicised human right violations have occurred in the Abu Ghraib prison and Guantanamo Bay detention centre.
Unfortunately, our law enforcement agencies have justified the Special Offences Bill and other unacceptable laws by referring to the experience in the United States and United Kingdom. But Malaysia is not the US or the UK. Malaysians are peace-loving and non-violent. The comparisons with these Islam-hating countries are wholly misplaced.
Accordingly, although I am delighted that the ISA will shortly be repealed, I am not persuaded that there is any need for the rest of the Security Offences Bill. The Prime Minister has been poorly advised. His objectives have not been fully carried out. Further, repressive laws continue to be part of our laws. Preventive detention is still valid under other written laws. Until all these oppressive laws disappear, one cannot say that the people of Malaysia enjoy a full measure of freedom, even 55 years after Merdeka.
Tommy Thomas is a leading constitutional lawyer.