Sosma Motion Rejected What Are The Implications

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Something historic happened this week.
On March 23, the Dewan Rakyat voted down a motion to extend the enforcement period for a key provision under the Security Offences (Special Measures) 2012 Act (Sosma) once it expires on July 31, 2022.
The provision in question is Section 4(5) of Sosma, which allows for detention without a court order for up to 28 days.
It provides that the police, after the initial 24 hours of arrest, “may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.”
This is different from the provisions of the Criminal Procedure Code, where after 24 hours of arrest and detention, the person under investigation must be brought before a magistrate for a remand order to further detain the said person.
Section 4(5) dispenses with the need to bring the person under investigation to court and allows the police to arbitrarily detain the person for a period of up to 28 days.
This pre-charge power of detention is problematic. The detention is not judicial detention, unlike the remand procedures for non-security offences.
From my own personal experience handling such cases, the 28-day detention is often abused by the authorities.
Suspects will be pressured to issue a “confession”. The pressure is usually not physical assault or torture but comes in the form of mental pressure on the suspects.
I have heard stories from accused persons of how the authorities will threaten to arrest their family members during questioning, while under the 28-day detention.
In a lot of instances, the detainees do not have access to legal representation and will not know his or her legal rights.
Faced with such prospects, many detainees will agree to “confess”. They will usually be made to sign a “confession”, known as a Section 18A document.
This document refers to Section 18A of Sosma, which provides that any statement by an accused person whether orally or in writing would be admissible, a stark departure from the usual rules of evidence.
In most instances, the “confession” in the Section 18A document will be used in court against the accused person.
Sunset clause
According to Section 4(11) of Sosma, the enforceability of Section 4(5) must be renewed by both Houses of Parliament every five years. This is the “sunset clause” of the section in order to compel Parliament to review the detention powers of the authorities periodically.
With the defeat of the government motion, it means after July 31, the authorities can no longer rely on Section 4(5) to detain persons under investigation.
The authorities would need to fall back on existing provisions under the Criminal Procedure Code, as well as the constitutional provision of Article 5 of the Federal Constitution.
The authorities must now bring arrested persons before a magistrate and obtain a remand order.
While it is not usually difficult for such an order to be granted, at the very least the detention is authorised by a separate body than that of the authorities. It also provides an opportunity for the person to resist the application for remand.
More importantly, unlike before when the police has 28 days to complete investigations, they would now only have a maximum of 14 days to do so, depending on the type of offence and the remand period authorised.
Sosma is a flawed piece of legislation. Much literature has been written on how it violates an individual’s right to a fair trial by tilting the odds in favour of the prosecution.
While a specific anti-terror legislation may be needed, Sosma’s problematic provisions mean that it is untenable for it to remain as part of our laws.
Hopefully, what happened in Parliament on March 23 will spark a serious review on the part of the government on the more problematic elements of Sosma.
Hopefully, too, it will lead to its abolition, to be replaced with a law that strikes the right balance between the security of the state and personal liberties. - Mkini
SYAHREDZAN JOHAN is a civil liberties lawyer and political secretary to Iskandar Puteri MP Lim Kit Siang.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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