Can we avoid partisanship?

I REFER to senior lawyer Datuk Seri Jahaberdeen Mohamed Yunoos’ column “What was all that with Sosma?” (Through Many Windows, Sunday Star, March 27; online at bit.ly/star_parliament).

As explained by the learned gentleman, the Security Offences (Special Measures) Act 2012 (Sosma) is a law that provides for the procedures, evidential rules and powers (including that of arrest) in relation to “security offences”.

The term “security offences” is defined to include offences which fall under Chapters VI (offences against the state), VI(a) (offences relating to terrorism) and VI(b) (organised crimes) of the Penal Code. For these offences, it is explicitly stated that Sosma shall apply (section 2). There are no two ways about it.

Sosma, as it is now, allows for a person to be detained for security offences for up to 28 days, after the initial 24 hours following arrest. This is for the purpose of investigation. Such a detention is generally referred to as detention pending investigation, or pre-charge detention as it is the period that a person can be detained between being arrested and being either charged or released.

Why 28 days? It is twice as long as the 14-day detention period allowed under Malaysia’s Criminal Procedure Code (CPC). It might be “inspired” by the same period of detention under the United Kingdom’s legislation which allows for pre-charge detention of terrorist suspects for up to 28 days without charge. At 28 days, the pre-charge detention period in the UK is said to be the longest of any common law country.

The maximum period of detention in the UK was originally set at seven days in 2000. This was amended by section 306 of the Criminal Justice Act 2003 to 14 days.

Following the July 7, 2005, terror bombings in London, the British government announced proposals to extend this to 90 days. The proposals were defeated in the House of Commons in late 2005, but an alternative measure was passed to extend the maximum to 28 days.

Mind you, in 2007 the UK government proposed to extend the maximum period to 56 days. The motion was roundly condemned by human rights groups. The government then attempted to extend the period to 42 days – a 14-day compromise from the previously proposed 56 days – but was eventually unsuccessful.

As alluded to by Jahaberdeen, terrorism cases require longer periods of pre-charge detention because of the complex investigation required, the difficulty of obtaining admissible evidence, and the importance of protecting the public from terrorist attacks.

Having said this, it does not mean that the 28-day detention under Sosma is not objectionable. A main objection is that Sosma, unlike the UK legislation and Malaysia’s CPC, does not provide for a judicial authority, like a magistrate, to be satisfied that an extension to the period of detention is necessary.

This is one area where reform to Sosma is necessary. Like the UK legislation, a judicial authority should be satisfied that an extended detention is necessary to obtain or preserve relevant evidence; permit the completion of an examination or analysis of any relevant matter with a view to obtaining evidence; and that the investigation connected with the detention is being conducted diligently and expeditiously (UK Police and Criminal Evidence Act 1984).

A responsible Parliament should examine whether existing laws in Malaysia on pre-charge detention are adequate to have “a disruptive and preventative impact on any terrorist plans that may be in process”.

It is a difficult issue but, to borrow the words of British barrister and lawmaker Lord Alex Carlile, it “can be decided by Parliament on the merits, rather than merely by party division in the normal political hostilities”. Are our members of Parliament able to address such issues without succumbing to the influence of partisan or personal political interests?

HAFIZ HASSAN

Bukit Baru, Melaka