What was all that with Sosma?

A FEW days ago, politicians, the media and human rights activists were abuzz with discussions about Sosma. Specifically, about the moment on Wednesday when the government failed to get the requisite votes to support its resolution to seek an extension of a provision to detain suspects for up to 28 days without trial under the Security Offences (Special Measures) Act 2012 (Sosma).

There was the far-fetched political narrative that this failure showed that the government had lost its confidence in Parliament. There was also the equally misleading assertion that this showed democracy was alive. If at all, this exposed the irresponsibility of some of our members of Parlia-ment if they had no just excuse for being absent from the House during the vote.

In any event, what exactly is Sosma?

It was enacted by Parliament under Article 149(1) of the Federal Constitution and came into force on July 31, 2012. The preamble to Sosma states that it is an Act to provide for special measures relating to security offences for the purpose of maintaining public order and security, and for connected matters. The preamble further repeats provisions 1(a), (b), (c) and (d) of Article 149(1) of the Federal Constitution, namely the following:

1) To cause, or to cause a substantial number of citizens to, fear, organised violence against persons or property;

2) To excite disaffection against the Yang di-Pertuan Agong;

3) Which is prejudicial to public order in, or the security of, the Federation or any part thereof;

4) To procure the alteration, otherwise than by lawful means, of anything by law established.

Sosma had been held to be Constitutional by the Malaysian courts even though it may be inconsistent with some of the fundamental rights in the Consti-tution, in particular Articles 5 (liberty of the person), 9 (prohibition of banishment and freedom of movement), 10 (freedom of speech, assembly and associations) and 13 (rights to property). These prohibitions or deprivations to rights should not cause alarm if they are done so in accordance with the law, for example criminal laws.

The other important confusion to clear up is that Sosma does not provide for offences. It is an Act that provides special measures or special procedures relating to security offences. These special procedures relate to the bail of the accused, trial for the offence, procedures of evidence-taking for protected witnesses, and so on.

All these are maters that have serious implications for the fundamental rights of a person and the “justice” of the criminal process. Obviously a responsible Parlia-ment will want to educate itself on these matters and debate them thoroughly when any such legislation is passed.

What then are the security offences envisaged by Sosma? These are clearly provided for in the First Schedule and contains some of the existing offences under the Penal Code, Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, and Special Measures Against Terrorism in Foreign Countries Act 2015. Briefly, most of the offences are offences against the state and offences relating to terrorism and organised crime.

Hence, Sosma very clearly relates to very serious offences that are complex and may in many instances become urgent. It is therefore understandable that the police force would like to have procedures in place to help them effectively curb, monitor, arrest and manage the perpetrators of such serious offences to maintain the security of the nation.

There are many issues that need to be debated and discussed when it comes to legislation such as Sosma but I shall focus on the matter raised in Parliament.

The Home Minister was seeking the permission of Parliament to extend the provisions of Section 4(5) in Sosma for a further five years because this is a requirement under section 4(11) of the same Act. If an extension is not given, then the said section ceases to have effect. What then is section 4(5)?

Section 4 of Sosma contains the procedures concerning the powers of arrest and detention of suspects by a police officer. Briefly, the section provides that no one shall be arrested and detained solely for their political beliefs; the person should be informed as soon as possible of the reason for his/her arrest; and the person may be arrested without warrant if the police officer believes that he/she is involved in security offences.

Like most other Acts that deal with criminal offences, the police may arrest and detain a person for a period of 24 hours for the purposes of investigation.

Under the Criminal Procedure Code (CPC), if the police need to remand the suspect for a period longer than 24 hours, they have to apply to a magistrate to do so. The maximum remand period that the police may obtain is 14 days; this too with the police having to comply with rigorous requirements under the CPC.

Since remand concerns the liberty of an individual, the Chief Justice’s office has, laudably, seen it fit to issue comprehensive guidelines to magistrates on remand procedures and principles.

However, under Sosma, after the expiry of the 24 hours after arrest, Section 4(5) allows a police officer of or above the rank of superintendent to extend detention to a period of not more than 28 days for the purpose of investigation. Hence, Sosma allows for 28 days of detention compared with 14 days under the CPC. Also, under Sosma, it is the police and not the courts that decide on the further extension – and hence the concern among human right activists.

There is a concern about checks and balances and the management of police powers. However, there are also provisions in Sosma that require the police to inform the next-of-kin of the person arrested of the arrest and to allow him/her consultation with a lawyer.

So what happened in Parlia-ment is not clear in the sense that there was not a respectable debate on the particular provision of Sosma. Why specifically was the extension requested? What were the justifying reasons? Likewise, why the objection and what is the alternative measure to address the security concerns of the police force?

Our members of Parliament still appear unqualified to address issues without partisan or personal political interets. I really wonder if MPs know that we have a piece of legislation in our country that allows detention for up to 59 days?

Senior lawyer Datuk Seri Jahaberdeen Mohamed Yunoos is the founder and chairman of Yayasan Rapera, an NGO that promotes community-based learning activities and compassionate thinking among Malaysians. The views expressed here are entirely his own.