COMMENT The BN government has truly exposed itself once again in detaining Bersih chairperson Maria Chin Abdullah under the Security Offences (Special Measures) Act 2012 (Sosma).

The Act is “to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters”. The Act was intended to replace the discredited 1960 Internal Security Act (Malaysia) (ISA).

Alleged terrorists and gangsters

Three people, including former ISA detainees Yazid Sufaat, Halimah Hussein and Mohd Hilmi Hasim, were the first ever detained under Sosma in 2013. They were arrested for alleged incitement of terrorist acts.

Following the 2013 Lahad Datu standoff, 104 Filipinos with suspected links to Jamalul Kiram III, one of the claimants to the throne of the sultanate of Sulu, were detained under Sosma. These included several family members of Kiram who had entered the state of Sabah using false identities.

Sosma was amended in the Dewan Rakyat on Oct 22, 2013, to place organised crimes as an offence punishable under Sosma. With the latest amendments to Sosma, we are told that gangsters are the new “threat to national security”.

Sosma is detention without trial

Superficially, Sosma looks like a better piece of legislation when compared to its predecessor the ISA. In comparison, Sosma only permits 28 days of detention without trial while the ISA permitted 60 days of detention before two years’ extension by the Home Affairs Ministry. While this may be true, the actual conditions of detention and other facets of Sosma render it as draconian (if not even more so) as its predecessor.

Sosma itself is not a piece of legislation that defines crimes and provides punishment for acts of terrorism. Sosma is a procedural law that operates in a manner similar to the Criminal Procedure Code. As such, when a person is detained under Sosma, he or she is technically arrested for crimes outlined in Chapter VI or Chapter VII of the Penal Code.

Under Sosma, the Royal Malaysian Police can only prevent the detainee from meeting his or her family members and deny any access to legal counsel for the first 48 hours. In practice, most detainees are not made aware of their right to legal counsel when detained under Sosma. Further, reports and complaints from families of victims often contain allegations that family visits take place under close scrutiny with the ‘meeting’ venue filled with a ‘battalion’ of police officers.

The draconian aspect of Sosma is rather discreet as it permits punitive punishment and detention without trial due to its ‘no-bail’ policy. Traditionally, the granting of bail is up to the discretion of court. However, for cases under Sosma the courts no longer enjoy this discretion and cannot, in theory, provide bail. In practice, this would subject a person to incarceration for months, if not years, pending court hearings.

In 2015, Suaram documented 46 cases (and actively assisted with two cases where the accused is held under Sosma). The speculation that 46 cases would only be the tip of the iceberg was confirmed when the Chief Justice of Malaysia, Arifin Zakaria, mentioned that there were 110 cases related to Sosma heard in court in 2015. (Suaram Human Rights Report 2015)