Malaysiakini Letter

How to put an end to Sosma’s 28-day detention?

Ooi Heng  |  Published:  |  Modified:

The Dewan Rakyat will be having the 1st meeting starting from March 6. Other than whether the minister in Prime Minister’s Department in charge of Islamic affairs will table a government amendment Bill for the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355), it is worth paying attention to another government business, which is regarding the Security Offences (Special Measures) Act 2012 (Sosma).

Shortly before Malaysia Day in 2011, Prime Minister Najib Abdul Razak announced the abolishment of the Internal Security Act 1960 (ISA), Restricted Residence Act 1933, and the Banishment Act 1959. On April 10 in the following year, then-minister in the Prime Minister’s Department Nazri Aziz tabled the Sosma Bill for first reading.

Six days later, during the second reading in the Dewan Rakyat, Najib clarified on the federal government’s stance, which was to avoid the Sosma from being abused, therefore he made six promises, including stating in the law that nobody will be arrested under Sosma merely because of their political beliefs or political activities, and also establishing a sunset clause that in every five years, the Parliament would review the relevant provisions in the Sosma regarding the 28-day extension of detention.

Shortly before the Bersih 5 rally, as the police used the Sosma to detain Bersih chairperson Maria Chin Abdullah, many came to a rude awakening. Even when there is no more ISA, the Sosma can be abused against political detractors as well.

Even though before this the government had already used the Sosma against former Batu Kawan Umno division vice-chief Khairuddin Abu Hassan and his lawyer Matthias Chang, the “political purpose” of Sosma came into widespread attention only during the days of Maria Chin being detained.

However, widespread concern over possible misuse of Sosma vanished under the heavy year-end holiday atmosphere, after Maria Chin was released from her 10-day detention.

As we get into the year of 2017, the Parliament will receive a government business regarding the Sosma. By that time, a cabinet member will resubmit a government motion, which will propose a five-year extension for Section 4(11) of Sosma. As the Sosma came into effect since July 31 2012, once this government motion is being passed in the Parliament, Section 4(11) of Sosma will extend for another five years until July 31, 2022.

Actually the cabinet had already submitted such a motion on Oct 27 last year. Later, six days after Maria Chin had been detained, the cabinet withdrew the motion.

It is stated in Section 4(11) of Sosma that the provision for the 28-day extension for detaining a Sosma detainee shall be reviewed every five years by the Parliament. Once the relevant government motion is being presented in the Parliament and being passed by both the House of Representatives (Dewan Rakyat) and the Senate (Dewan Negara), the 28-day detention order may be extended for another five years.

Conversely, if the Parliament rejects this government motion, thus the 28-day detention order will cease to have effect on July 3 this year. By then, the police can no longer use Sosma to prolong the detention of any suspect for 28 days, for the purpose of investigation.

Why shouldn’t the MPs support this gov’t motion?

In the past there were many factors about the usage of the ISA to invite criticism, one of them was that the government used the ‘detention without trial provision’ in this Act against political detractors. Sosma does not give the home minister absolute power to use such ‘detention without trial provision’ against detractors. However, Sosma gives a police officer of or above the rank of Superintendent the power to ‘detain without trial’ for up to 28 days.

According to the statistics provided by Nazri in the Parliament, there were altogether 10,883 people who were detained under the ISA. The 119 people being detained by the government under Operation Lalang on Oct 27, 1987 only consisted of 1.09 percent out of these 10,883 people.

If the MPs support such a government motion, in order to allow the ‘detention without trial provision’ of Sosma to continue in effect for another five years, therefore from this year till the year of 2022, how many more is likely to be ‘detained without trial’ under Sosma?

Actually Section 117 of the Criminal Procedure Code (CPC) has given the police the power that, for a case which the investigation cannot be completed within 24 hours, the police may apply to the Magistrate to extend the detention of the suspect.

According to Section 117 of the CPC, if the offence which is being investigated is punishable with imprisonment of less than 14 years, then after the 24-hour detention, the police can only apply for the detention from the Magistrate for not more than four days. After the four-day period, the police have to apply from the Magistrate again, and once authorised, may only detain the suspect for not more than three days.

If the offence which is being investigated is punishable with imprisonment of at least 14 years, then after the 24-hour detention, the police can only apply for the detention from the Magistrate for not more than seven days. After the seven-day period, the police have to apply from the Magistrate again, and once authorised, may only detain the suspect for not more than seven days.

In other words, under the CPC, the police must be authorised by the court, and even while investigating the most serious criminal cases, may only extend the detention of a suspect for 14 days at the most.

Conversely, although Sosma does not give the home minister absolute power, it gives a police officer of or above the rank of Superintendent the power to ‘detain without trial’ for 28 days.

From the past records of ISA abuses, as well as the recent abuses of ‘detention without trial’ of Maria Chin and others, we should have the reason to worry that if the MPs do not put an end to the ‘detention without trial provision’ under Sosma, then not only the court’s power of discretion will be shelved, but also if there is a next ‘Maria Chin’, he or she may be any one of us, or may be any MP.

But now the question is, is there any Barisan Nasional (BN) backbenchers opposing the government to continue enforcing the power of ‘detention without trial’ under Sosma?


OOI HENG is executive director of PKR think-tank Political Studies for Change (KPRU).

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