I REFER to G. Selva’s letter, “Preventive laws have overstayed welcome”. 

According to the learned writer, preventive laws “were inherited from our colonial masters and have in all moral and ethical aspects of jurisprudence outlived their purpose and suitability for contemporary society.”

But not all preventive laws are inherited from our colonial masters.

The Security Offences (Special Measures) Act 2012 (Sosma) is a good example. It’s our own. It’s not inherited, though you can say that it’s ‘inspired’ by similar laws in our former colonial masters.

Sosma is a law that provides for the procedures, evidential rules and powers (including that of arrest) to the authorities in relation to what is known as ‘security offences’.

The term ‘security offences’ is defined to include offences which fall under Chapters VI (offences against the State), VIA (offences relating to terrorism) and VIB (organised crimes) of the Penal Code.

For these offences, it is explicitly states 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. But this is for the purpose of investigation.

This was alluded to by the then prime minister at the second reading of the proposed law. Read it here.

Such a detention is generally referred to as detention pending investigation. In other jurisdictions like in our former colonial masters, it is called pre-charge detention. It is the period that a person can be detained by the police between being arrested and being either charged with a criminal offence or released.

Pre-charge detentions serve the primary purpose of securing sufficient admissible evidence during investigation for use in criminal proceedings.

Why 28 days? It is twice longer than the 14 days of detention allowed under the Criminal Procedure Code (CPC).

This is where you can see how Sosma 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 (see Terrorism Act 2006).

At 28 days, the maximum period of pre-charge detention in the UK is said to be the longest of any common law country.

That will continue to be the case after July 31 following the Dewan Rakyat’s voting down of the government’s motion to extend the enforcement of subsection 4(5) of Sosma which allows for the detention of suspects for up to 28 days without trial.

The maximum period of detention in the UK was originally set at seven days in 2000 [see Terrorism Act 2000]. However, this was amended by section 306 Criminal Justice Act 2003 to 14 days. Following the 7 July 2005 bombings in London the 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 – section 23 Terrorism Act 2006 – to extend the maximum to 28 days.

Mind you, in 2007 the UK government proposed to extend the maximum period to 56 days. It was condemned by human rights groups.

In 2008 the UK government legislatively attempted to extend the period to 42 days – a 14-day compromise from the proposed 56 days – but was eventually unsuccessful.

The provisions extending pre-charge detention, which was passed by the House of Commons, were defeated in the House of Lords – the upper House like the Senate here in Malaysia – by a majority of 309 votes to 118.

It is said that terrorism cases require longer periods of pre-charge detention because of the complexity of investigating terrorism cases, the difficulty in obtaining admissible evidence, and the importance of protecting the public from terrorist attacks.

The complexity of terrorism cases includes the use of encrypted data; voluminous quantities of material; data from cellular telephones; multiple false identities; forensic science delays; difficulties when large numbers of suspects are held together; and the cumulative impact of all the above issues. (see “Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post-Charge Questioning, 2007-08, Cm 7215). 

Whether it is 14 days or 28 days, much debate has in fact gone into this period of detention (see Lord Carlile of Berriew, Q.C., Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill, 2007-08). 

It is a struggle that any government will have to strike between its “primary responsibility to ensure the safety of its citizens, which must include looking at what powers the law enforcement agencies may need in future instead of waiting until current powers have been proved inadequate” and “the scale and nature of the terrorist threat and the increasing complexity of cases.”

Legislation such as the UK’s Terrorism Act 2006 recognise that investigations into security and terrorism offences call for a separate power of arrest and detention from the normal procedural law, which in Malaysia is contained in the CPC.

This special power has been described as one of the most important powers that should be made available to the police and law enforcement agencies.  The exercise of such power can “have both a disruptive and preventative impact on any terrorist plans that may be in process.”

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 the 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  
• the investigation connected with the detention is being conducted diligently and expeditiously. (see Terrorism Act 2000 c. 11, sch. 8 part 3)

A responsible parliament will have to apply its mind whether the 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.”

I agree with Selva that the key is in providing “the right balance” and that it is a difficult act to achieve but “absolutely necessary in the war against hardened and very dangerous criminals.”

It is indeed a difficult issue but, in the words of Lord Carlile , it “can be decided by parliament on the merits, rather than merely by party division in the normal political hostilities.” – March 27, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.