Arrested on the eve of the Nov 19 Bersih 5 rally in 2016, and detained for 10 days under the law, Maria stands firm in the belief that Sosma, a form of preventive detention that allows the police to make arrests without a warrant, should be abolished altogether and not just amended.
“Having gone through inhumane and degrading treatment under the law myself in 2016, I believe that it has absolutely no space in a democratic Malaysia,” the Petaling Jaya MP tells Sunday Star. During her time in prison, she was left in a permanently lit individual confinement cell.
Maria was held under Sosma and investigated under Section 124C of the Penal Code for engaging in activities detrimental to Parliamentary democracy. As of November 2018, more than 2,000 people have been detained under the Act.
Human rights group Suara Rakyat Malaysia’s (Suaram) Human Rights Report Overview 2018 on Malaysia documented 219 people detained under Sosma last year: 85 for terrorism-related offences, 18 for trafficking and immigration offences, and 116 for other criminal offences.
“Sosma allows for detention without trial whereby an accused person can be detained for 28 days, as compared to 14 days under the Criminal Procedure Code, without being brought before a magistrate. No bail is granted unless you are a woman, under 18, sick or infirm; discretionary access, and most of the time no access to lawyer and families; and solitary confinement,” Maria says in a text message.
“Sosma is unjust, as the trial court cannot direct the public prosecutor to produce any statement or summary of information deemed sensitive, or prejudicial to national security. This makes defence very challenging. Besides this, the accused could be held in prison for years until the final appeals are completed even though the trial court has set the person free,” she adds.
Maria points out that some detainees have died in custody, as in the case of Thanabalan Subramaniam who died in April 2018.
She adds her voice to those of civil society groups and the Malaysian Bar Council, which has also argued that existing laws under the Penal Code and the Criminal Procedure Code are sufficient to deal with security-related issues.
In 2018, Maria sued the Inspector-General of Police, the Home Minister and the government for wrongful detention under Sosma. A settlement was reached without admission of liability.
In her statement of claim, Maria said that her arrest was politically motivated and was done to serve the purpose of the party helming the government at the time to thwart efforts to hold a peaceful assembly.
Issues within Sosma
Malaysian Centre for Constitutionalism and Human Rights (MCCHR) Chief Human Rights Strategist Firdaus Husni also believes that Sosma needs to be repealed.
“The main concerns behind criticisms of the detention period under Sosma are the violation of an individual’s right to a fair trial and that there is no judicial scrutiny in determining the period of detention,” she tells Sunday Star.
“This opens the door to abuse or torture by the authorities. The current move to reduce 28 days to 14 days does not address this concern about the need for judicial scrutiny of the power of the executive,” she adds.
Furthermore, Firdaus explains, these are not the only criticisms about Sosma.
“Other concerning provisions include access to legal representation and the deviation from the ordinary rules under the Criminal Procedure Code and the Evidence Act. If the government is committed to safeguarding the individual’s right to a fair trial, all these other issues must be addressed too,” she adds.
Can conventional laws cope?
Lawyer and former deputy public prosecutor Arik Zakri is also of the view that conventional laws are enough to deal with security issues without having to resort to Sosma.
“The case against (militant group) Al-Maunah is proof that conventional laws of criminal procedure and evidence are adequate to deal with terrorist crimes. We do not need a special law to prosecute people accused of terrorism,” says Arik, who handled Sosma cases.
“Members of Al-Maunah were tried in open court by an able team of government prosecutors and defended by the most able attorneys at the time. Their leaders were found guilty,” he elaborates.
According to Arik, trial by
conventional laws enjoys greater transparency, legitimacy and better assurance of due process.
“Against Al-Maunah, it was a fairer fight and we all won,” he says, adding that Sosma allows for unfair trials.
“In certain circumstances, the defence attorney is not allowed to see the prosecution witness nor cross-examine him directly (under Sosma). It is virtually impossible to do the job fairly with such restrictions in place. Sosma departs from the norms of the rules of evidence because it allows proof of the offence based on hearsay as of right, and other special rules not found in the conventional law of evidence,” he explains.
Can we strike a balance?
Dr Ahmad El-Muhammady, a political science lecturer at the International Islamic University of Malaysia and member of Malaysia’s terrorist rehabilitation panel, is supportive of amending Sosma but believes that the law in itself is still needed.
“We cannot get too emotional when it comes to security issues,” he says.
Noting the criticisms raised by former Sosma detainees, Ahmad acknowledges that some changes need to take place.
“We need the law to protect national security but we also need to protect human security, which includes human rights. I think we have to take the middle path,
reconciling these two concerns. So reviewing elements of Sosma such as the length of detention would be a good step to begin with,” he says.
However, Ahmad says that the practical aspects of a police investigation still need to be considered.
“For example, a normal remand of seven days is often not enough for the police to build a case and gather information for these kinds of sensitive issues,” he says, adding that Sosma gives a broader scope for authorities to access evidence from the suspects including seizing mobile phones and laptops.
On Oct 16, Home Minister Tan Sri Muhyiddin Yassin said that Malaysia still requires Sosma to address terrorism activities and that current laws are inadequate (“Muhyiddin: Sosma still very much needed”, The Star; online at bit.ly/star_need). He reiterated that Pakatan Harapan never promised to abolish Sosma in its Election Manifesto but insisted instead that amendments and reviews were needed.
A day prior, Defence Minister Mohamad Sabu also said that Sosma does not need to be abolished but only improved from time to time due to its risk of misuse (“Sosma should be improved, not abolished”, The Star; online at bit.ly/star_sabu).
On Nov 6, Muhyiddin said that the current 28-day maximum detention period for Sosma suspects may be amended (“Ministry looking into amending Sosma”, The Star; online at bit.ly/star_amend).
The new proposal is for 14 days of detention with the possibility of extending that for another 14 days but only with a judge’s approval.
Another provision being looked into is the “economic sabotage” offence, such as in the case of
lawyer Matthias Chang, which Muhyiddin said was found to be politically motivated.
The Sosma amendments might be tabled in March next year.
In response, the Malaysian Bar called for Sosma to be repealed in its entirety, saying that piecemeal amendments to Sosma is not enough for a law that has already been abused many times over.
The Bar argued that if current laws were found to be insufficient to tackle security issues, the solution lies in amending existing “non-draconian” laws or enacting new laws that observe the rule of law.
Most recently, Sosma was used against 12 people, including Melaka state executive council member G. Saminathan and Seremban Jaya assemblyman P. Gunasegaran, over alleged links to the Liberation Tigers of Tamil Eelam militant group.
On Nov 29, the High Court declared that Section 13 of Sosma, which provides for no discretion in the granting of bail by the court, is unconstitutional.