What is SOSMA?
The Security Offences (Special Measures) Act 2012 (SOSMA) provides additional measure for the Royal Malaysian Police to address security offences. Security offence in this context can refer to terrorism, organized crime, human trafficking and advocating for democracy.
For most part, the Act was designed to replace the Internal Security Act 1960 when it was repealed in 2012. However, unlike its predecessor, this law does not outline any crime on its own. SOSMA serve as a procedural law which would operate in lieu of the Criminal Procedure Code in the event that someone committed an offence under Chapter VI and Chapter VII of the Penal Code.
Prior to the arrests of Maria Chin Abdullah (2016) Khairuddin Abu Bakar (2015) and Matthias Chang (2015), SOSMA have been used to arrest and detain alleged combatants from Lahad Datu, Sabah, alleged supporters and sympathizers of the Islamic State and others considered as threat to national security.
Overview of SOSMA
- The Police have the power to arrest and detain without warrant if he has reason to believe the the person is involved in security offences. – S.4(1)
- The Police have the power to arrest and detain a person for a period of 24 hours – S.4(1)
- The Police have the power to extend the detention period to 28 days – S.4(5)
- The Police have the power to ‘suspend’ detainee’s right to meet their family and lawyers for up to 48 hours – S.5(2)
- No bail for those arrested under SOSMA – S.13
- Detainee will remain in detention until conclusion of all legal proceedings including appeal – S.30
SOSMA in operation
The overview only provides a brief description of the police’s power to detain an individual without trial. While these provisions may seem fair and necessary in combating terrorism, the reality is often a far cry from the ‘designed narrative’. In many cases, these provisions give rise to significant injustice to the detainee.
There have been allegations where detainees are severely mistreated and on occasion beaten and tortured during the first 28 days of detention. It is during this time where the police reportedly attempt to elicit forced confession.
More often than not, those that were detained are not well informed of their legal rights and were not provided any legal counsel throughout their detention. Even if lawyers are provided during the 28 days, the lawyers are limited to providing legal counsel and ‘guarantee’ of safety as the laws itself makes any intervention impractical. In the event that the lawyers wish to file a habeas corpus or challenge the detention, the 28 days would likely have expired before the hearing date, rendering the hearing irrelevant.
Further, in cases of wrongful arrests or the unfortunate scenario where an innocent individual is detained as part of a group in a mass detention, they would be subjected to prolonged detention for a crime that they never did. Realistically, it may take years for any legal proceeding (including the appeal procedures) to conclude. This result in the unfortunate circumstances where an innocent individual would be forced to plead guilty and bargain for a relatively short sentence of a year.
On top of these inherent injustice, the notion that SOSMA was purely a tool meant for combating terrorism was revealed to be a façade when Khairuddin Abu Bakar and his lawyer Matthias Chang was arrested under SOSMA in conjunction with Section 124K and 124L of the Penal Code (alleged activities deemed detrimental to parliamentary democracy). Various quarters alleged that Khairuddin was arrested and detained for the reports he made in foreign states in regards of the state investment firm 1MD. His lawyer, Matthias on the other hand was arrested when he visited his client at IPD Dang Wangi.
SOSMA utility as a tool to silence political opposition and restrict freedom of expression was reaffirmed following the arrest and detention of Maria Chin Abdullah, the chairperson of Bersih 2.0. She was arrested on the eve of Bersih 5 rally on 18th November 2016 at Bersih office. Lawyers were denied access to Maria Chin and were also not allowed to witness the search.
It should also be noted that S.4(11) of SOSMA states that detention period of 28 days shall be reviewed every five years and shall not have effect when approved by both Houses of Parliament. During the Parliamentary Session in April 2017, Dewan Rakyat approved the continuation of the 28 days detention period, being enforced for another 5 years until 2022.
What Rights do you have under SOSMA?
Upon your arrest, the police must inform you of the reason of your arrest as soon as possible. The police officer conducting investigation must immediately notify your next-of-kin of your arrest and detention and allow legal counsel except in exceptional circumstances. Even then, this can only be delayed for 48 hours.
Although no bail will be granted to person charged with security offences, there are exceptions to it. If you are a person below the age of 18 years or a woman or a sick or an infirm person, you may be released on bail subject to an application by the Public Prosecutor that you be attached with an electronic monitoring device.
What to do if you are arrested under SOSMA?
Contacting a lawyer or next-of-kin should be the first order of business. Keep in mind that the police do have the power to deny this rights and prevent you from contacting your family or lawyer for 48 hours.
Can we do without SOSMA?
In general, SOSMA and its siblings (laws that permit detention without trial) violate fundamental human rights, namely the right to a fair trial. Furthermore, the wide-ranging powers afforded to the Royal Malaysia Police gave rise to countless cases where an individual is arbitrarily detained with no sound reasons behind their initial arrest.
Furthermore, we must not forget that the Criminal Procedure Code that was based on the English common law system has operated in countless countries across the globe including the United Kingdom, India, Australia and others. In all of those countries, the ordinary power to arrest and detain individual subjected to remand applications to the magistrate judge has been proven to be adequate.
Under the Criminal Procedure Code in Malaysia, for a serious crime, the Royal Malaysian Police can apply for a 7 day remand from the magistrate court and apply for another 7 day extension if they found it necessary to keep the individual in detention for further investigations. The magistrate oversight involved in these procedure reduces the possibility of abuse and also ensure that the police are accountable to the law.
On the issue of bail under SOSMA, the courts have no say on the matter and the power to deny bail falls squarely on the Attorney General’s Chamber. the Criminal Procedure Code grants judges discretion in granting bail and would not result in an individual being subjected to prolonged incarceration for something relatively trivial.