The Malaysian Bar welcomes Parliament’s rejection of the government’s motion to extend the effective period of subsection 4(5) of the Security Offences (Special Measures) Act 2012 (Sosma) for another five years.
After 31 July 2022, the police no longer have the power to detain a suspect for up to 28 days for investigations without being brought before a magistrate to be remanded under subsection 4(5) of Sosma.
This is a step in the right direction as Article 5(4) of the Federal Constitution requires any person arrested to be brought before a magistrate within 24 hours and not to be further detained in custody without the magistrate’s authority.
By rejecting the government’s motion, Parliament has signalled that 28 days of detention without judicial oversight is antithetical to the rule of law. The absence of judicial oversight allows the executive and the police a free rein to abuse such power against human rights defenders and political dissidents, as was done in the case of Maria Chin Abdullah, who was detained and placed in solitary confinement. We are also reminded of the detentions and prosecutions of Khairuddin Abu Hassan and Matthias Chang.
None of these individuals were involved in violent behaviour that was tantamount to a public security threat that would warrant an arrest under Sosma. These individuals were the subject of Sosma because of their political beliefs and activities.
The Inspector General of Police, Acryl Sani Abdullah Sani, was reported to have said that he is aware that there are other provisions under the law in force to carry out detentions for suspected acts of terrorism and offences against the state under the Penal Code through court remand orders.
The Malaysian Bar echoes the inspector general’s views that existing laws clothe our law enforcement agency with ample statutory basis and authority to confront such activities without having to resort to preventive detention laws, which are anachronistic and draconian.
Even though Parliament has rejected the government’s motion, Sosma, as a whole, remains problematic. Most of its provisions have gone beyond stopping or preventing national security threats and have encroached on the trial of an accused and powers of the judiciary. Sosma substantially shifts the goalpost in favour of the prosecution by changing the trial process or established rules on evidence that would otherwise safeguard an accused’s right to fair trial.
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.
Malaysia, being a member of the UN Human Rights Council for the 2022–24 term, should take this opportunity to uphold its commitment to the protection of human rights by repealing Sosma and other preventive detention laws such as the Prevention of Terrorism Act 2015 (Pota) and the Prevention of Crime Act 1959 (Poca).
Human rights and national security are not mutually exclusive, nor are they in conflict with each other. Instead, they are interrelated and complementary.
The Malaysian Bar therefore reiterates its clarion call for the government to repeal Sosma, Pota and Poca. Let there be no further attempts to revive debates on any preventative detention laws.
Karen Cheah Yee Lynn is president of the Malaysian Bar
This piece is reproduced from here and has been edited for style only.