No need for preventative detention laws

THE Malaysian Bar welcomes Parliament’s rejection of the government’s motion to extend the effective period of subsection 4(5) of the Security Offences (Special Measures) Act 2012 (Sosma) for another five years (“Dewan Rakyat votes against five-year extension of 28-day detention under Sosma”, The Star, March 23; online at bit.ly/star_dewan).

After July 31, 2022, the police will no longer have the power under Sosma to detain a suspect up to 28 days for investigations without being brought before a magistrate to be remanded under subsection 4(5) of Sosma. This is a step in the right direction as Article 5(4) of the Federal Constitution requires any person arrested to be brought before a magistrate within 24 hours and not be further detained in custody without the magistrate’s authority.

By denying the government’s motion, Parliament has signalled that 28 days of detention without judicial oversight is antithetical to the rule of law. The absence of judicial oversight allows the Exec-utive and the police free rein to use such power against human rights defenders and political dissidents, as was done in the case of Maria Chin Abdullah, who was detained and placed in solitary confinement (“Maria Chin detained under Sosma”, The Star, Nov 19, 2016; online at bit.ly/star_detained).

We are also reminded of the detentions and prosecutions of Datuk Seri Khairuddin Abu Hassan and Matthias Chang. None of these individuals was involved in violent behaviour tantamount to a public security threat that would warrant an arrest under Sosma.

Inspector-General of Police Tan Sri Acryl Sani Abdullah Sani was reported to have said that he is aware that there are other provisions under the law to carry out detentions when investigating suspected acts of terrorism and offences against the state under the Penal Code through court remand orders.

The Malaysian Bar echoes the IGP’s views that existing laws provide our law enforcement agency with ample statutory basis and authority to confront such activities without having to resort to preventive detention laws, which are anachronistic and draconian.

Even though Parliament has rejected the government’s motion, Sosma as a whole remains problematic. Most of its provisions go beyond stopping or preventing national security threats and encroach on the trial of an accused and powers of the Judiciary. Sosma substantially shifts the goal posts in favour of the prosecution by changing the trial process and established rules on evidence that would otherwise safeguard an accused’s right to fair trial.

The Malaysian Bar has consistently urged the government to repeal Sosma in its entirety. National security is not carte blanche for curtailing fundamental liberties.

Malaysia, being a member of the United Nations Human Rights Council for the 2022–2024 term, should take this opportunity to uphold its commitment to protect human rights by repealing Sosma and other preventive detention laws, such as the Prevention of Terrorism Act 2015 (Pota) and Prevention of Crime Act 1959 (Poca).

Human rights and national security are not mutually exclusive, nor are they in conflict with each other. Instead, they are interrelated and complementary. The Malaysian Bar therefore reiterates its call for the government to repeal Sosma, Pota and Poca. Let there be no further attempts to revive debates on any preventative detention laws.

KAREN CHEAH YEE LYNN

President

Malaysian Bar