Malaysians Against Death Penalty and Torture (Madpet) is pleased that the Pakatan Harapan-Barisan Nasional government is looking at the Security Offences (Special Measures) Act 2012 (Sosma) and may restore bail-granting discretion to judges.
At present, the act enacted by Parliament prohibits bail pending the end of the criminal trial, which means those accused of any offences listed as Sosma offences are forced to languish in detention until the end of their trials. This is draconian as it ignores the presumption of innocence until proven guilty.
Further, it is totally unjust for any possibly innocent individual because denial of bail results in having to languish in detention until the completion of trial. Note that trials in Malaysia take a long time to end, maybe even years.
Imagine the suffering also caused to the family, children and dependents of these possibly innocent accused persons. What happens when they are found not guilty?
Leave it to the judges to determine whether bail is allowed. It is wrong for Parliament by law to steal from judges the power to determine whether bail should be granted.
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It was reported on 23 August:
The federal government has no intention to repeal the controversial Security Offences (Special Measures) Act 2012 (Sosma), Ramkarpal Singh said today.
Instead, the deputy minister in the Prime Minister’s Department (Law and Institutional Reform) said the government plans to introduce two amendments to the law, one of them being the issue of bail.
Madpet is disappointed that this PH-led government’s position, as expressed by the late Karpal Singh’s son, is not to repeal Sosma.
As such, we reiterate that what is needed urgently is the abolition of Sosma – not simply making some minor amendments here and there.
All criminal trials must comply with the Evidence Act and the Criminal Procedure Code.
All persons should equally be given a fair trial, in compliance with the existing Evidence Act and Criminal Procedure Code.
Now, those accused of Sosma-listed offences are discriminated against and not accorded the same fair rights in a trial.
There is no justification for allowing any exception to the strict compliance of the Evidence Act and the Criminal Procedure Code, which ensure the standard for a fair trial in Malaysia.
If there is a need, then amend the Evidence Act and Criminal Procedure Code, and apply the same standards and procedures to all accused in all criminal trials.
Sosma is a bad law, similar to the Essential (Security Cases) Regulations, 1975 (Escar), that violates the right to a fair trial, as it provides for special measures relating to security offences, including the use and admission of evidence currently prohibited by Malaysia’s Evidence Act.
Note that the Federal Constitution provides for, in Article 8(1), that “All persons are equal before the law and entitled to the equal protection of the law”.
Sosma is a violation of this constitutional guarantee. It allows for a class of accused persons to be tried differently, not in full compliance with Malaysia’s Evidence Act and Criminal Procedure Code – hence a violation of Article 8.
Even the late Karpal Singh and the Malaysian Bar opposed Escar (a law like Sosma).
Sosma, an act to provide for special measures relating to security offences, is just like the Escar, which was strongly opposed by the late Karpal, Malaysian lawyers and the Bar. Lawyers threatened to boycott any cases that used Escar, which permitted the avoidance of strict compliance with the Evidence Act and the Criminal Procedure Code.
The government’s reaction to the Malaysian Bar then was the amendment of the Legal Profession Act 1976, that, amongst others, barred young lawyers (below seven years of practice) from holding bar leadership positions and being in bar committees, and increased the quorum for general meetings.
Hence, the retention of Sosma is certainly not what lawyers, including the late Karpal, and the better Pakatan Harapan of the past wanted.
Hopefully, the current PH-led government will revert to its earlier just position and abolish Sosma speedily.
ISA repealed, but….
Sosma is not a law that allows detention without trial, as all those charged under any Sosma-listed offence will be accorded a trial, where the prosecution is duty-bound to prove in open court beyond reasonable doubt that the accused is guilty of the crimes he or she was charged with.
In detention without trial, like the then Internal Security Act (ISA) and the present Prevention of Crime Act 1959 (Poca), the Prevention of Terrorism Act 2015 (Pota) and the Dangerous Drugs (Special Preventive Measures) Act 1985 – which are laws that allow detention without trial – there will be no trial. The accused does not have the opportunity to defend himself or herself in court.
For Sosma-listed offences, there is a trial.
Confusion may have arisen because the draconian ISA was repealed by Section 32 of Sosma in 2012, which states: “The Internal Security Act 1960 [Act 82] is repealed….”
but this certainly does not mean that Sosma replaces the ISA and is a ‘new’ law that allows detention without trial law. It is not.
After the ISA was repealed, a new law, Pota, was enacted, and Poca’s scope increased, resulting in a wider scope for detention without trial.
What happened after the repeal of the draconian laws that allowed detention without trial – the ISA was repealed in 2012 and the Emergency (Public Order and Crimes Prevention) Ordinance 1969 was repealed in 2013 – was that a new law that allowed detention without trial, Pota, was enacted.
The existing Poca was amended in 2014 and after that, to increase the scope of alleged crimes that would make suspects subject to detention without trial.
Like the ISA, laws that allow detention without trial are draconian also because judicial review or court challenges regarding the reasons the arrest, detention or restriction are not allowed.
Hence, not only is there a denial of the right to a fair trial, there is also the denial of the right to challenge the reasons it was used on you. This facilitates a miscarriage of justice, including the possibility of an innocent person being wrongly arrested, detained and restricted.
This is why Malaysia must abolish all laws that allow detention without trial.
Repeal these laws
Some say that the ISA was strongly opposed by politicians and political parties, after politicians fell victim to the law in Operation Lalang in 1987.
So, until politicians fall victim to Poca, Pota or Dangerous Drugs (Special Preventive Measures) Act, Malaysian politicians may not repeal the remaining laws that allow detention without trial.
It seems that political parties and the government do not care if ‘unknown’ Malaysians become victims of these laws.
Madpet hopes that this not be the case and calls for the immediate repeal of all laws that allow detention without trial.
Some say the current PH-led government is backtracking or making U-turns in its commitment to abolish draconian laws or provisions in law because it did not manage to obtain a majority in the last general elections, forcing it to form a coalition government with other parties that do not care about human rights.
This is a lame excuse, as PH won 81 seats out of 112 seats required to form the government, which means it has over 50% in cabinet – which is all that is required to table laws.
Madpet believes that there are sufficient non-PH MPs and opposition MPs who will pass any good laws that promote justice and human rights.
Hence, the excuse of Prime Minister Anwar Ibrahim’s PH-led government or PH for not repealing bad laws is not justifiable and may not be accepted by the public.
Table the required bills to repeal bad laws and bad provisions in some laws.
Madpet reiterates the call for the immediate repeal of Sosma and all laws that allow detention without trial – Poca, Pota, the Dangerous Drugs Act.
Madpet also calls for a moratorium on the usage of these draconian laws pending abolition. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture