Malaysians Against Death Penalty and Torture (Madpet) notes that the Attorney General’s Chambers announced on 21 February that the government is discontinuing prosecution of 12 Malaysians it had charged with supporting the Liberation Tigers of Tamil Eelam (LTTE), which included two DAP lawmakers (Malay Mail, 21 February 2020).
The attorney general was reported as saying that the decision was made “under my discretion pursuant to Article 145(3) of the Federal Constitution”. Attorney General Tommy Thomas said the decision was made after finding insufficient evidence to back its prosecution that would lead to a “realistic prospect of conviction”.
The 12 men were detained on 10 and 12 October 2019 in various parts of the country. On or about the end of October 2019, they were charged in court but bail was denied on the basis that these offences were listed as “security offences” under the Security Offences (Special Measures) Act 2012 (Sosma).
Section 13(1) of Sosma states that “Bail shall not be granted to a person who has been charged with a security offence”.
Thereafter, one High Court judge decided that this section was unconstitutional, and said the accused had a right to apply for bail. Recently, another High Court judge decided that there is no right to bail.
All these would not have happened if Parliament had repealed Sosma, when Pakatan Harapan won the general election and formed the government in May 2018.
The arrest, detention and the denial of bail of these 12 Sosma victims received much attention by the media and the Malaysian public.
The current Pakatan Harapan government, in their last election manifesto, had ‘promised’ to repeal and/or remove the draconian and unjust provisions in Sosma, but to date, after more than 20 months, it has failed to do so.
Madpet, although the news is good, is concerned whether the decision to discontinue proceedings against these 12, including two Pakatan Harapan state assembly members, may have taken in ‘political’ considerations.
It would have been better if the decision was to discontinue proceedings against all others (or some others), and not just this 12, many of whom are linked to a PH political party, who are now being tried for Sosma-defined ‘security offences’, who are languishing in detention because the right to bail is denied.
Attorney general or government discontinued proceedings?
The media report said that the attorney general “announced that the government is discontinuing prosecution”, and as such, the question arises whether the decision of the attorney general in this matter was independent or was it as instructed by the government. Did the attorney general do as requested or desired by the government of the day?
We recall with unhappiness when the former attorney general also chose to not charge former Prime Minister Najib Razak in relation to alleged offences connected to 1MDB and SRC; now the new attorney general has charged Najib and others and trials are ongoing.
Hence, the role and actions of the attorney general (who is also the public prosecutor), particularly his or her independence, needs to be looked at and reformed accordingly.
Article 145(3) of the Federal Constitution states: “The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.”
There may be a need for new laws to clarify these powers of the attorney general, to ensure that any attorney general will not exercise these powers for any wrong reasons, be it for political expediency or otherwise. The new laws should also give others – not just the actual victims but also any other concerned Malaysians – the power to challenge the attorney general’s decision.
This discontinuing of proceedings against the 12 may reduce public discussion on Sosma, but it should in no way delay the repeal of Sosma and/or the removal of draconian provisions in Sosma.
Don’t compromise on right to be heard promptly during remand applications
Whilst there may be a justification for a longer permissible remand period for the purpose of investigation for certain offences, the right to be brought before a magistrate within 24 hours and the right to heard by the magistrate before further remand orders are granted must not be compromised.
Further remand for investigation should be only through a remand order by a magistrate. The maximum period of remand for each application also needs to be restricted to not more seven days, as it is now in our Criminal Procedure Code, as amended a few years ago.
Let’s not forget the presumption of innocence until proven guilty, and the purpose of bail is simply to ensure that the accused person turns up for his or her trial.
The right to bail should be allowed for all accused persons. The admissibility of evidence and criminal procedure should be the same as for all other criminal trials. The bail amount should be reasonable and not punitive, which is discriminatory against the poor.
The list of “security offences” in Sosma needs to be reduced to just the most serious of all offences. Certain offences like the offence of “activity detrimental to parliamentary democracy” (Chapter VI Sections 124B-J of the Penal Code) which is vague, ought to be repealed. Offences like the possession of books, especially those not banned in Malaysia, should be repealed.
Criminal compensation will ensure justice to victims of administration of justice
The 12 languished in detention for more than four months. It is not just the deprivation of liberty and rights, but also it would have affected their income and caused suffering to their families, including their children.
The public prosecutor ought not to have even charged them in the first place, as he has now acknowledged there is insufficient evidence and “there is no realistic prospect of conviction for any of the 12 accused on any of the 34 charges”.
Compensation, damages may be a just remedy
Madpet urges the government to enact a law providing for just compensation for those who are detained or deprived of their liberty, in accordance with the law, but at the end of the day are not charged, acquitted by court and or had their proceedings discontinued by the attorney general, as has happened to these 12.
Sosma repeal will not mean end of trials for those accused of crimes
Madpet reiterates the call for the immediate repeal of Sosma.
The repeal of Sosma will not impact on the charges, as all charged under “security offences”, as defined by Sosma, are in fact charged for offences under the Penal Code or other laws, and as such, their criminal trials will continue.
In the interim, Madept calls for the repeal of Section 13(1) of Sosma that denies the right to bail, which is a violation of the right to a fair trial.
Madepet reiterates its call for the repeal of all draconian laws, including laws like the Prevention of Crime Act and the Prevention of Terrorism Act, which allow for detention without trial and denies victims their fundamental right to a fair trial.
21 February 2020
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture