When Home Minister Saifuddin Nasution Ismail, in a parliamentary reply, said that 401 people were punished (not tried and convicted) in 2022 under the Security Offences (Special Measures) Act 2012 (Sosma), doubts arose about his suitability to continue to be home minister.
Does this minister not understand the rule of law, and the administration of criminal justice? The law cannot be used to punish anyone, save for those already been charged, accorded a fair trial, found guilty and sentenced. The sentence is the only punishment permissible by law. Arrest and pre-conviction detention should never be abused to punish anyone.
… A total of 624 individuals were detained under the Security Offences (Special Measures) Act (Sosma) last year, says Datuk Seri Saifuddin Nasution Ismail. The Home Minister added that 140 of these detainees had already been released. “Of those detained, 71 were charged in court, 401 were punished, 140 were released and 12 are still under investigation,” he said in a written reply to a question by Chow Yu Hui (PH-Raub) in the Dewan Rakyat yesterday. (The Star, 7 March)
Only 71 out of 624 Sisma victims were charged in court.
Sosma is not a detention-without-trial law. Post-arrest detention without trial is only for the purpose of investigation, nothing else. The police cannot use detention or torture, even under Sosma, for the purpose of ‘punishing’ anyone in Malaysia.
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Of the 624 arrested and detained for offences listed in Sosma, only 71 were apparently charged and tried – meaning that almost 550 innocent persons ended up becoming victims of Sosma. They possibly suffered detention or prolonged detention in police custody, as Sosma allows for detention beyond the maximum 14 days stipulated in Malaysia’s Criminal Procedure Code.
The minister must disclose how many days they spend in police custody, and how much suffering they endured with regard to their employment, business or income-generating activities, which all affect not just the detainee but also the detainee’s family and children – more so, if the detained person was the sole or primary bread winner.
Really, Malaysia, must for the sake of justice, consider how we can compensate victims of Sosma and other criminal laws for their loss of liberty, rights and losses when they were held in detention in the administration of criminal justice.
Arrest for investigation only
For suspects, the police should only keep them in police custody when absolutely needed for the purpose of investigation. The police can always continue investigation without any arrest or detention.
Suspects can be asked to turn up when needed for questioning and statements. We have seen this done in the cases of former Prime Minister Najib Razak and most recently former Prime Minister Mahiaddin Yasin. They never had to spend days in police cells.
In the administration of criminal justice, law enforcement must never discriminate based on poverty, ethnicity, class or position, consistent with Article 8(1) of the Federal Constitution, which states:
(1) All persons are equal before the law and entitled to the equal protection of the law.
Minister must understand rule of law
A home minister, who is responsible for criminal law enforcement, must be a person who understands the rule of law, justice and human rights. He must understand the presumption of innocence until found guilty by a court of law after a fair trial. He must never condone police abuse of powers, or the use of the law for any other ulterior motives like “punishment” before conviction.
The minister is not supposed to condone the wrongs of the police but must fearlessly point out the wrongs and reform the administration of criminal justice. How can he not criticise the use of Sosma to punish people? Did “punish” in his parliamentary reply mean something else?
In December last year, Saifuddin said the government had no intention of reviewing Sosma. On 16 February the minister said Sosma is still a relevant act to maintain national security and the government is committed to strengthen the law. “The police still need the law to implement any urgent action to prevent panic among the people and address threats to the country’s sovereignty and the wellbeing of the people,” he said in a written reply.
The Malaysian police and law enforcement, if they are professional and competent, can certainly carry out law enforcement urgently without Sosma. They can already investigate and charge anyone who has broken the law.
Malaysians Against Death Penalty and Torture (Madpet) believes law enforcement does not need Sosma, which is an act to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters. Sosma wrongly allows for not [adhering to] certain requirements of the Malaysian Criminal Procedure Code and Evidence Act. Why?
If there is a need for certain serious security offences, where the police need a longer maximum period in detention for the purposes of investigation, then the law can provide for it but the role of the magistrate must be maintained.
Sosma excludes magistrate’s role
Article 5(4) of the Federal Constitution states:
Where a person is arrested and not released, he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority.
Under Sosma, there is no need to bring [a suspect] before the magistrate. In Sosma, after 24 hours in custody following arrest, all it needs is that “a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation”.
Don’t the home minister, Prime Minister Anwar Ibrahim and the Pakatan Harapan-led government understand the role of the magistrate and remand hearings? It is to protect a suspect’s rights and to ensure that the police do not abuse their powers, including by torture, when police custody and post-arrest detention is only permissible for the purposes of investigation.
The police can only keep a suspect in custody for questioning and other investigations requiring the presence of the suspect. A suspect cannot be held simply to “punish”.
The magistrate and the remand hearing, which gives suspects the right to be heard, is to prevent abuse and to protect human rights,
Remember that Parliament, in its wisdom in 2007, amended the law to set new maximums for the length of remand orders a magistrate can give in an application, where it now depends on the seriousness of the offence. For serious offences like murder, it is seven days. Previously, that maximum on the first application could be 14 days. Parliament wanted the police to bring the suspect before the magistrate regularly.
Sadly, our current home minister and the government, despite the calls of the Malaysian Bar, the national human rights commission Suhakam, civil society and justice-loving Malaysian, fail to understand the need for the immediate repeal of Sosma.
Saifuddin Nasution, the PKR secretary general and PH secretary general, may be a good MP and politician, but, according to Madpet, he does not qualify to remain as home minister.
Madpet calls on the home minister to resign, or alternatively urges Prime Minister Anwar to remove him as home minister or even from the Cabinet. Choose a home minister that understands and respects human rights and who will always uphold justice.
Madpet calls for a disclosure of how the 401 people held under Sosma were punished last year.
Madpet reiterates the call for the immediate repeal of Sosma.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)