Introduction of SOSMA to replace ISA draws mixed reaction from law practitioners

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KUALA LUMPUR: Almost a year after the Security Offences (Special Measures) Act 2012 was gazetted to replace the repealed Internal Security Act 1960, arguments persist as to whether the new law provides the appropriate balance between the safeguarding of national security and the rights of the accused.

The Security Offences (Special Measures) Act 2012, or SOSMA for short, was approved by the Dewan Rakyat on April 17, 2012, given the royal assent on June 18, 2012, and gazetted on June 22, 2012.

SOSMA 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”.

Senior lawyer Datuk Mohd Hafarizam Harun is of the view that SOSMA does not infringe on the rights in law of a detainee.

He said the act provided for the police to immediately notify the detainee’s next-of-kin of his or her arrest and for the detainee to consult a lawyer of his or her choice.

The act says a police officer may, without warrant, arrest and detain any person whom he has reason to believe to be involved in security offences and that person may be detained for a period of 24 hours for the purpose of investigation.

The police officer may extend the period of detention for a period of not more than 28 days, for the purpose of investigation.

The police officer would have to immediately notify the next-of-kin of the person of his arrest and detention and conditionally allow that person to consult a lawyer of his or her choice.

Said Mohd Hafarizam: “The ISA was stricter in the sense that the timeframe (for detention) was longer and the detainee could be held without trial."

He said the public had to know why the detention period under SOSMA was made rather excessive - 28 days.

He noted that one would say that such an action would infringe on certain rights and fundamental liberties laid down under the Federal Constitution, but added, however, that SOSMA was a subsidiary legislation under Article 149 of the Federal Constitution.

He said the act was strict about the timeframe of 28 days in the sense that it did not allow any extension of time over and above the 28 days.

Mohd Hafarizam said detention did not mean being held in a lockup or prison for the entire 28 days because the act provided for an electronic monitoring device to be attached to the released detainee within those 28 days.

It gives an illustration as follows: D is arrested for a security offence. After 24 hours of detention, a superintendent of police extends his detention for another seven days. At the expiry of the seven-day period, D is released but he is still needed to assist the investigation.

Upon receipt of a report from the police officer, the Public Prosecutor may apply to the Court to attach an electronic monitoring device on D. The Court may allow the electronic monitoring device to be attached to D up to a period of 21 days.

 "Thus, detainees cannot claim that their rights were infringed as provided for under Article 5 of Federal Constitution (liberty of a person)," said Mohd Hafarizam, adding that public interests outweighed private interests especially when it came to sensitive issues such as national security matters or inciting racial hatred.

Mohd Hafarizam said the public must be educated to understand the seriousness of the issues, to be informed that if they were not handled with extreme care it would lead to situations such as the recent uprising in the Middle East.

He said the infusion of external sentiments in the public should be stopped before it became a pandemonium.

Mohd Hafarizam said the SOSMA procedures were similar to those in the Criminal Procedure Code (CPC), whereby the suspects were given the opportunity to engage legal counsel and consult family members.

Nevertheless, he said, if the law was aimed at maintaining public order in the country, SOSMA was not very effective in terms of enforcement for the reason that it allowed detainees to defend themselves.

"That is to say, the law still allows the presumption of ‘innocent till proven guilty’," he said, adding that SOSMA aimed to fulfill the elements in Article 149 of the Federal Constitution which laid down special powers against subversion, organised violence, and acts and crimes prejudicial to the public.

Senior criminal lawyer Datuk N. Sivananthan said SOSMA might be effective in certain situations as it allowed the police to detain a suspect for up to 28 days when there was a real threat to public order or to the security of the country, provided that it was used properly, only in relation to offences against the state and/or offences relating to terrorism and nothing else.

Sivananthan, who was engaged by the Philippine government to lead a team of five lawyers to defend its citizens who had been charged in connection with the Lahad Datu intrusion, said SOSMA was essentially a law meant for extreme situations where there was threat to life and limb.

"However, if someone did indeed place a bomb or an explosive device during a general election then that could be construed as a security offence which would elicit the use of SOSMA," he said when asked about some quarters claiming that the police might abuse the new law on offences deemed detrimental to parliamentary democracy during a general election.

He explained that SOSMA dealt with offences that carried both the death penalty and/or life imprisonment.

He said that previously when an accused was charged with such offences, the CPC, Evidence Act and Federal Constitution would apply but, with SOSMA, all these were no longer applicable.

"What SOSMA has done is to remove all the ingredients of a fair trial," said the first Malaysian lawyer appointed as vice-president in charge of the Asia-Pacific region of the International Criminal Bar (ICB). (His appointment was made during the biennial assembly of the ICB held in Barcelona, Spain, in March 2010.)

Sivananthan said detainees could engage a lawyer but what was unacceptable was that all the rules that exist to ensure a fair trial were essentially thrown out of the window, and this was something that many were not aware of.

Another criminal lawyer, Amer Hamzah Arshad, is of the view that the provisions in SOSMA were lopsided in favour of the state rather than ensuring a fair trial for the accused person.

He said normal criminal trials were governed by the CPC and Evidence Act, but security offences would be tried under SOSMA.

"The provisions in SOSMA are not the same as in the CPC. The latter has more safeguards and is fair to an accused person whereas provisions in SOSMA are lopsided in favour of the state,” he said.

He said since SOSMA was merely a procedural legislation that governed the trial procedure for security offences, it therefore could not deny the constitutional rights of an accused to be represented by a counsel of his or her choice.

He also said there was no necessity to resort to SOSMA over the reports lodged during the recent general election period as they were merely reports of normal crimes such as vandalism.

In February, three people – former ISA detainee Yazid Sufaat, Halimah Hussein and Muhammad Hilmi Hasim -- were the first to be detained under SOSMA.

Yazid was charged with promoting an ideology intended to incite the people of Syria, and Halimah and Muhammad Hilmi were charged with abetting him.

The High Court acquitted and discharged them on May 20, after allowing their applications to strike out the charges against them.

In a landmark decision, Judge Kamardin Hashim ruled that Article 149 of the Federal Constitution was only applicable to acts of threat in Malaysia. -- BERNAMA


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