A Tale of Two Acts: ISA, SOSMA and Preventive Detention Laws in Malaysia
We've been on a break recently and we're happy to announce that we're finally back with the second half of Issue #2! Unless otherwise notified, we will continue to publish an issue once a month.
SUARA MANDIRI Issue #2
“On December 9, 2004, I stepped out of my cell without violating any orders. I was handcuffed in the front, my head was forced to bow as low as waist-length, and then I was hauled towards the back of the [cell block]. I was beaten, spat on, and kicked several times. After reaching the back of [that block], I was ordered to sit facing the wall, while handcuffed, and my head was pushed down. There I was insulted, continuously kicked from behind and clubbed on the head with a baton. . . .
We were then taken to [another cell block]. On the way from [a cell block] to [another block] I was handcuffed with my hands at the back and my head was pushed down to waist level. My head was struck with a baton and my eye was hit, injuring it. When I reached room seven of [the cell block], I was continuously beaten and then forced to strip naked, ordered to crawl while entering the room and then my buttocks were kicked and that was how I stumbled inside, naked. My t-shirt and pants were outside the room, which were returned to me later by [the] warden. . . . My left eye continuously bled. I only received eye wash treatment on Sunday, December 12, 2004.”
Statement of Mohamad Faiq bin Hafidh describing events on 9 December 2004 in Kamunting Detention Center after he was arrested under the ISA in 2002.
The criminal justice system is simple; if a person commits a crime, he will be arrested, tried in court and punished when found guilty. What if the state can take it further by arresting the person before he can commit any crime? In Captain America: Winter Soldier, Hydra explores this idea by implementing a diabolical plan to kill people whom its algorithm deemed to be a threat based on the probability of them committing crimes. All in the name of safety and security.
Well the idea is not that far-fetched. Preventive detention laws, i.e. Internal Security Act 1960 (ISA) and Security Offences (Special Measure) Act 2012 (SOSMA) are similar to Hydra’s scheme. Upon suspicion that a person will carry out a criminal act, the police is authorised by preventive detention laws to arrest him before he could even do so. However, they cannot immediately charge the person in court for a crime that he has not committed yet. If that is so, he will be detained by the police until they have a case against him in court. Such detention is usually justified by strong and sufficient evidence that the person is a threat to national security (e.g. terrorist or extremist).
But for how long will those arrested under the ISA and SOSMA be in detention? One month, one year, or an indefinite period?
History of Preventive Detention Laws in Malaysia
The first preventive detention law, known as the Emergency Regulations Ordinance 1948, was introduced by the British in 1948 during the Malayan Emergency in response to the armed insurgency by the Communist Party of Malaya (CPM). In 1960, three years after the independence of Malaya, the Ordinance was repealed and replaced by the ISA, which was enacted under Article 149 of the Federal Constitution. The government at the time justified the need for the ISA as a tool to tackle the remnants of the communist threat in Malaya:
"The ISA introduced in 1960 was designed and meant to be used solely against the communists...My Cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent"
Tunku Abdul Rahman, First Prime Minister of Malaysia.
"The ISA is a measure aimed at preventing the resurgence of the earlier communist threat to the nation... During my term of office as Prime Minister, I made every effort to ensure that pledges of my predecessors, that powers under the ISA would not be misused to curb lawful political opposition and democratic citizen activity, were respected."
Tun Hussein Onn, Third Prime Minister of Malaysia.
Since the implementation of the ISA, about 10,000 people have been detained despite the fact that there is no longer communist threat in the country. Most of the detainees are not military or paramilitary agents, but people who were deemed to be political threats to the government, including journalists, political activists, academicians, students and opposition members. This is a blatant abuse of the ISA that is contradictory to the government’s assurance that the goal of the ISA is to control internal subversion.
An example of such abuse of law is the infamous Operation Lalang on 27 October 1987, which saw the arrest of 106 people including the late Karpal Singh and Maria Chin as well as newspapers such as The Star, Sin Chew Jit Poh, The Sunday Star and Watan losing their publishing licenses.
Again, in November 2000, when the Barisan Nasional coalition suffered a by-election defeat in Mahathir's home district in Kedah and the government faced increasingly vocal opposition protests,the ISA was enforced against its political opponents. Among those targeted under the ISA were minority Shi'a Muslims, supporters of the then jailed former Deputy Prime Minister Anwar Ibrahimand youth leaders in the opposition Pan Malaysian Islamic Party.
Be careful what you wish for: Enter SOSMA
Fast forward to 31st of July 2012, the ISA was repealed and was replaced by the SOSMA. This came after years of protest and opposition against the ISA from the public, civil liberty groups and opposition parties. The then Prime Minister, Najib Razak assured that the SOSMA “incorporates far more judicial oversight and limits the powers of the police to detain suspects for preventive reasons”.
However, the repeal of the ISA was not entirely altruistic. In one of his speeches, Najib Razak mentioned that the law was no longer politically beneficial to the Barisan Nasional coalition at the time. He said:
"If you put someone in under ISA, it doesn't kill them politically. Instead, it enhances their political career”.
This indicates that the ISA was abolished not because of its draconian and unnecessary nature, but because it no longer serves its political purpose adequately.
After SOSMA was enacted, the PH coalition led by Mahatir Mohamad criticised the law as being draconian and infringing human rights standards and promised to repeal the SOSMA in one of his speeches prior to the 2018 General Election.However, the promise was not kept when PH became the government. Muhyiddin Yassin, who at the time was the Minister of Home Affairs, denied claims that they (PH) had promised to repeal SOSMA in their manifesto and said that such laws were still needed for national security.
SOSMA as the Lesser Evil or ISA Rebranded?
To figure out if the SOSMA is the lesser of the two evils, we must examine its legal machinery and how it is open to abuse.
The ISA, through a series of amendments, had extended the powers of the Executive and stripped the available judicial safeguards for detainees. Once a person is detained under the ISA, he has no effective recourse to legal protection nor any opportunity to establish that he is innocent of the accusations levelled against him. As such the ISA is contrary to fundamental principles of human rights, including the right to liberty, right to freedom from arbitrary arrest, right to be informed of the reasons for arrest, right to the presumption of innocence, and right to a fair and open trial in a court of law.
Is the SOSMA similar to the ISA?
SOSMA and ISA are similar in terms of arrest and detention powers whereby a police officer can arrest a person without a warrant if he believes that the person was involved in an offence under the preventive detention laws. However, the SOSMA does require the officer to inform the detainee of the grounds of arrest.
The officer is also required to inform the detainee’s next-of-kin and allow the detainee to consult a legal practitioner immediately. This is significantly better than the ISA as it somewhat protects rights of the detainee during arrest. Nevertheless, these improvements may be seen as empty gestures. For example, the police may delay informing the detainee’s next-of-kin or communications to a legal practitioner up to 48 hours if instructed by an officer above the rank of Superintendent of Police.
Summarily, the SOSMA does seem to have less teeth than ISA. However, provisions that allow the installation of electronic monitors and interception of communication between the detainee and the outside world can be seen as a breach of privacy and modernisation of security laws.
Human Rights Breaches towards SOSMA Detainees
It was reported that 5 of the 12 detainees who supported Liberation Tigers of Tamil Eelam were abused and tortured. Suara Rakyat Malaysia (SUARAM), a human rights organisation together with the members of the SOS-Torture Network Working Group on Torture and Terrosim of the World Organisation Against Torture (OMCT), released a joint statement condemning the government and the police for their misconduct.
“Systems of special security detention, like the one in Malaysia, far from making us more secure, create an environment that is conducive to torture. We have looked at the system in Malaysia and concluded that torture allegations like the ones before us are not an accident.”
These allegations were however denied by The Home Ministry.
Another account of torture was given by an auxiliary policeman. He was tortured for two weeks while he was detained under the SOSMA in 2018 for allegedly trafficking in illegal immigrants. According to him, the abuse only stopped once he agreed to give a cautioned statement.
More recently, the police detained up to 13 individuals under the SOSMA since 26 September 2020 and continued to detain them even though the magistrate court had instructed them to release the detainees multiple times. According to SUARAM, the police only notified family members of the detainees on 14 October. After 28 days of detention, without charging the detainees with any offence, the police rearrested and investigated the detainees under the Societies Act 1966. SUARAM called for the immediate need for an Independent Police Complaints and Misconduct Commission (IPCMC) to address cases of police brutality so that the police can be held accountable for their misconducts.
The poor treatment of detainees can also be highlighted in the death of Thanabalan Subramaniam, a SOSMA detainee who passed away when held under custody. The post-mortem revealed that he received no signs of physical abuse, but the police’s negligence to ensure Thanabalan received immediate medical treatment was questioned by civil society groups.
Lawyer M. Visvanathan told Free Malaysia Today that Thanabalan was found to have contracted leptospirosis as a result of being exposed to rat urine. This clearly reflects the poor living conditions of detention cells. Lawyers for Liberty executive director Eric Paulsen questioned whether the police followed the standard operating procedures (SOPs), and whether they had given him the medical attention needed. SUARAM executive director Sevan Doraisamy also noted the lack of “interest of will to end custodial deaths”.
SOSMA as a tool to reduce criminal activities
The police views the SOSMA as a necessity to reduce crime rates. Federal Criminal Investigations Department director Commissioner Datuk Huzir Mohamed attributed the decrease in crime rates to the use of the SOSMA and the Prevention of Crime Act 1959 (POCA). Between 2009 and 2019, Malaysia’s crime index has demonstrated a downward trend from 212,678 cases in 2009 to 83,475 cases in 2019, with an average of 11,000 fewer cases in each successive year.
The police force also attributed the SOSMA as key to the fall of the Gang Kabali, a gang responsible for 65 armed robberies. Recently, Johor police chief Datuk Ayob Khan said that it is a more effective law to curb smuggling as the police could only use the Customs Act 1967 to combat contraband and cigarette smuggling.
However, various legal experts have called for the repeal of the SOSMA as they believe that existing laws under the Penal Code and the Criminal Procedure Code are sufficient. Lawyer and former deputy public prosecutor Arik Zakri cited the case against militant group Al-Maunah as proof that conventional laws are adequate to deal with terrorist crimes.
Furthermore, conventional laws allow the trials to be conducted with greater transparency and legitimacy. In the case of Al-Maunah, the group was tried in open court and was afforded an able team of defence counsels. According to him, under the SOSMA, the defence counsels would be not allowed to see the prosecution witness nor cross-examine him directly. With such restriction in place, the defence counsels would not be able to properly examine witnesses and evidence.
He pointed out that the SOSMA diverges from the norms of the rules of evidence as hearsay can be accepted as proof, and other “special rules not found in the conventional law of evidence”. In contrast to conventional laws, there is a lack of access to legal representation under the SOSMA. It also deviates from the ordinary rules under the Criminal Procedure Code and Evidence Act 1950.
The Malaysian Bar also shares a similar sentiment. They believe that piecemeal amendments are not enough as the SOSMA is an unnecessary piece of legislation that results in the police having arbitrary powers. SOSMA detainees do not have rights to a fair trial, and the law undermines the protections and fundamental liberties in the Federal Constitution. While acknowledging that the SOSMA provides provisions to tackle terrorism, Abdul Fareed, the then president of the Malaysian Bar pointed out that the provisions contain “draconian elements that run counter to the rule of law”. He also acknowledged the need for the government to maintain national security, but concluded that the SOSMA “has no place in a democratic nation, and is an affront to the principles of natural justice”.
SOSMA open to abuse and political exploit
Suruhanjaya Hak Asasi Manusia (SUHAKAM) has identified 4 provisions in the SOSMA that violate human rights of detainees:
Section 4 does not provide for judicial oversight when the detention period is extended up to 28 days.
Section 5 allows the police to deny immediate access to legal representation for a period up to 48 hours.
Section 6 permits the interception of communication which may infringe personal liberty and right to privacy.
Section 30 compels the court, upon application by the Prosecutor to commit an acquitted person pending exhaustion of all appeals.
The SOSMA was invoked in the arrest and detention of former Bersih 2.0 chairman and current MP Maria Chin, for the offence of committing activity detrimental to “parliamentary democracy” as Bersih 2.0 purportedly received fundings from the Open Society Foundation (OSF) in 2016. She was first detained under Section 124C of the Penal Code, and subsequently detained under the SOSMA for 11 days. In a commentary by Steven Thiru, a former president of the Malaysian Bar, the definition of the offence is “imprecise”, and it was never intended to “restrict or prohibit any form of peaceful and legitimate democratic activity”. It was reported that there was no concrete evidence that NGOs which used the funds were involved in activities that can disrupt the peace of the country.
Another example was when the police arrested Khairuddin Abu Hassan on 18 September 2015 to stop him from travelling to the United States. This was after he provided information on the 1Malaysia Development Berhad (1MDB) corruption scandal to international authorities. Phil Robertson, the Deputy Director of HRW’s Asia Division concluded that “Malaysian officials evidently view SOSMA as a shortcut to harass and silence human rights activists and anti-corruption campaigners with prolonged detention without charge”.
In 2019, to ensure that there is a process of “‘checks and balances”, the government had proposed amendments such as allowing detention for investigation purposes before an application for a 14-day extention can be applied from the court. In the same year, the Attorney-General’s Chambers (AGC) found that Section 13 of the SOSMA was “unconstitutional” for prohibiting the court from granting bail to a person charged for an offence under Chapter 6A of the Penal Code. Malaysia Centre for Constitutionalism and Human Rights (MCCHR) Chief Human Rights Strategist Firdaus Husni countered that the move to shorten the detention period does not address the need for judicial scrutiny of the authorities.
Call to Action
Preventive detention laws such as the ISA and the SOSMA have no place in the modern world where respect for human rights and fundamental liberties must always prevail. Whether politically motivated or not, it is plain as day that these laws are and have been opened to abuse. While there is a need for a legal mechanism to maintain national security and to facilitate the investigation and prosecution of persons who pose a threat to national security, the implementation of preventive detention laws should be balanced with the protection of fundamental human rights of the detainees.
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