LETTER | The home minister must be someone who respects rule of law, human rights and justice, does not fear criticising the police and will get rid of draconian laws like Security Offences (Special Measures) Act 2012 (Sosma).
When Home Minister Saifuddin Nasution Ismail, in a parliamentary reply said that 401 was punished (not tried and convicted) in 2022 under Sosma, doubts have arisen about his suitability to continue to be a home minister.
Does this minister not understand the rule of law, and the administration of criminal justice? The law cannot be used to punish anyone, save for those already charged, accorded a fair trial, found guilty and sentenced.
The sentence is the only punishment permissible by law. Arrest and pre-conviction detention should never be abused to punish anyone.
“...A total of 624 individuals were detained under the Sosma last year, said Saifuddin.
The home minister added that 140 of these detainees had already been released.
“Of those detained, 71 were charged in court, 401 were punished, 140 were released and 12 are still under investigation,” he said in a written reply to a question by Chow Yu Hui (Harapan-Raub) in Dewan Rakyat.
Only 71 out of 624 Sosma victims were charged in court. It is to note that Sosma is not detention without a trial law.
Post arrest, detention without trial is only for the purpose of investigation, nothing else. Police cannot use detention or torture, even under Sosma, for the purpose of “punishing” anyone in Malaysia.
Of the 624 arrested and detained for the offences were listed in Sosma, only 71 were apparently charged and tried – meaning that almost 550 innocent persons have ended up becoming victims of the law, and they possibly suffered detention or prolonged detention in police custody, as Sosma allows for detention beyond the maximum 14 days stipulated under the Criminal Procedure Code.
The minister must disclose how many days they spent in police custody, and how much suffering they endured with regard to their employment, business or income-generating activities, which all affect not just the detainee but also their families and children.
Really, Malaysia, must for the sake of justice, just consider how can we compensate victims of Sosma and other criminal laws, for their loss of liberty, rights and losses when they were held in detention.
Post-arrest, custody for investigation only
For suspects, police should only keep them in police custody when absolutely needed for the purpose of investigation.
Police can always continue their investigations without any arrest or detention. Suspects can be asked to turn up when needed for questioning and statements.
And we have seen this done in the cases of former prime ministers Najib Abdul Razak and Muhyiddin Yassin. They never had to spend a day in police lock-ups.
In the administration of criminal justice, law enforcement must never discriminate based on poverty, ethnicity, class or position, consistent with Article 8(1) of the Federal Constitution that states, “(1) All persons are equal before the law and entitled to the equal protection of the law”.
Home minister must respect human rights
A home minister must understand the presumption of innocence until found guilty by a court of law after a fair trial. He must never condone police abuse of powers, or the use of law for any other ulterior motives like “punishment” before conviction.
The minister is not supposed to condone the wrongs of the police, but must fearlessly point out the wrongs, and reform the administration of criminal justice. How can he not criticize the use of Sosma to “punish”? Did “punish” in his parliamentary reply mean something else?
In December last year, Saifuddin said the government had no intention of reviewing Sosma. He said Sosma is still relevant to maintain national security and the government is committed to strengthening the law.
The police, if they are professional and competent, can certainly carry out law enforcement work without Sosma. They can already investigate and charge anyone who has broken the law.
(Malaysians Against Death Penalty and Torture) Madpet believes law enforcement does not need Sosma, being an Act to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters.
If there is a need for certain serious security offences, where the police need a longer maximum period in detention for the purposes of investigation, then the law can provide for it but the role of the magistrate must be maintained.
Respect magistrate’s role
Article 5(4) of the Federal Constitution says, “Where a person is arrested and not released, he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority.”
But under Sosma, there is no need to bring a detainee before the magistrate. After 24 hours in custody after arrest, all it needs is that “a police officer of or above the rank of superintendent of police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.”
Does the government not understand the role of the magistrate and remand hearings? It is to protect a suspect’s rights and to ensure that the police do not abuse their powers, including by torture - when police custody post-arrest detention is only permissible for purposes of investigation.
The magistrate and remand hearing provides the suspect’s right to be heard to prevent abuse and protect human rights.
Remember that Parliament, in its wisdom in 2007, amended the law to set new maximums of the length of remand orders a magistrate can give in an application, where it now depends on the seriousness of the offence, and for serious offences like murder, it is seven days.
Previously, the maximum on the first application could be 14 days. Parliament wanted the police to bring the suspect before the Magistrate regularly.
Sadly, our current home minister and government, despite the call of the Malaysian Bar, Suhakam, civil society and justice-loving Malaysian fail to understand the need for the immediate repeal of Sosma.
Madpet calls for Saifuddin’s resignation. Choose a home minister that understands and respects human rights, and will always uphold justice.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.