THE humiliation suffered by Home Minister Hamzah Zainuddin may well spark the beginning of the end to the successor of the discredited Internal Security Act (ISA), but the motion defeated last week did not lead to a permanent abolishment of Security Offences (Special Measures) Act 2012 (Sosma).

When Sosma was first passed in 2012 right after the repeal of ISA, many believed that Sosma would effectively replace ISA when it came to arresting and detaining those who were perceived to be critical against the government.

To appease critics, Sosma was shown as being different from ISA in two ways, (a) under section 4(3), Sosma would not be used against individuals solely for their political belief or political activity, and (b) there is a sunset clause regarding the power to detain an individual for not more than 28 days and a parliamentary review is required every five years.

The second point is that the home minister was forced to go to Parliament and argue his case of “renewing” the detention power of Sosma last week. And with its defeat last week, Sosma’s detention power is due to expire by the end of July 2022 unless the government is able to convince Parliament to vote for its reactivation.

Nevertheless, Sosma is still an active legislation, and it was only severely weakened because Parliament decided to deny its detention power last week.  

The condition upon which Sosma could be applied differs from the application of ISA where the room for abuse was more extensive for the latter.

It should be noted that Sosma operates in lieu of the Criminal Procedure Code (CPC) and the act has stipulated that there are only very specific offences where Sosma can be utilised.

This includes offences against the state, terrorism, organised crime and specific offences under Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Atipsom) and Special Measures Against Terrorism in Foreign Countries Act 2015.

It is unlawful under Sosma and an abuse of power if an individual were to be detained under Sosma for a petty offence such as housebreaking.

However,in the case of Maria Chin Abdullah and Mandeep Singh’s arrest  in 2017 under Sosma, this has contravened section 4(3) and yet the former was not immediately released but continued to be held in detention for 11 days.

Despite numerous safeguards that have been imposed under Sosma, there is still room for manoeuvre especially when the state has a history of liberally interpreting dissenting political activities as offences against the state.    

Sosma itself is unique in that it is not a piece of legislation that is designed to deter an offence rather it is crafted to circumvent the rights of the arrested person spelled out under Section 28A of the CPC.

An individual could be remanded for a maximum of 14 days depending on the severity of the offence, but Sosma could potentially extend the pre-trial detention for a maximum of 28 days before the remand process.

There are provisions within Sosma which are hugely problematic and undermine the principles of right to fair trial.

Despite the loss of arrest and detention power, Sosma could still be used to charge someone under those offences that I have mentioned. Those who have been charged under Sosma are not granted bail unless under special circumstances and this means the court has effectively lost its discretionary power to protect the liberty of the individual who was charged.

Under the criminal justice system, the role of the court is to act as a safeguard for the protection of an individual’s liberty.

The court could grant bail to an individual if the person has suffered abuse during prior detention as further detention serves no purpose to the investigation of his or her alleged offence.

Sosma has effectively eroded that principle and the executive’s detention power, at least after an arrest has been made, it is unchecked and unaccountable under SOSMA.

Nevertheless, the application of Sosma is currently in uncharted waters. While the sunset clause was added for parliamentary scrutiny and ensuring Sosma is not ISA 2.0, I believe even the drafter of Sosma could not foresee the day the act would be allowed to exist while having its most powerful provision nullified.

It is still entirely permissible for the executive to abuse Sosma even without its draconian detention power. Other potential violations to right to fair trial in Sosma includes how confession of crime is  made admissible regardless of whether it is being made under duress, of which the executive could take advantage as long as Sosma exists.

Therefore, it is not just the detention power of Sosma that is problematic. Sosma needs to be abolished in its entirety to ensure the right to fair trial can be fully exercised in Malaysia. – April 3, 2022.

* Kenneth Cheng has always been interested in the interplay between human rights and government but more importantly he is a father of two cats, Tangyuan and Toufu. When he is not attending to his feline matters, he is most likely reading books about politics and human rights or playing video games. He is a firm believer in the dictum “power concedes nothing without a demand. It never did and it never will”.