THE Security Offences (Special Measures) Bill (Sosma), passed by the Dewan Rakyat on 18 April 2012, will repeal the Internal Security Act (ISA) once it comes into effect. The ISA has long been criticised for allowing preventive detention for indefinite periods without trial.
Prime Minister Datuk Seri Najib Razak said the reform, including the rescinding of three emergency proclamations, ushers in a “new era” for Malaysia. He said the government would no longer limit individuals’ freedom but instead ensure their basic constitutional rights were protected. He also hoped other promised reforms, including the introduction of the Peaceful Assembly Act and amendments to the Universities and University Colleges Act, would herald a “golden democratic age in Malaysia”.
The prime minister’s grand pronouncements however seem a little divorced from reality. For while Sosma may be somewhat of a step up from the ISA, it is in no way a guarantee that Malaysians’ basic rights will be protected, as he seems to suggest. There are real issues with the new law, the implications of which demonstrate just how insincere our government is in their professed aim of making Malaysia a more open democracy.
What’s better
Let’s start with the positive aspects of the new law before dealing with its problems.
The ISA allowed police to detain individuals for 60 days. Under Sosma, this has been shortened to 28 days.
The ISA also gave the home minister the discretion to place individuals under detention without trial for two years, renewable indefinitely. This power has been taken away, something which apparently was “not easy” for Home Minister Datuk Seri Hishammuddin Hussein to do.
The ISA allowed police broad scope under which they could detain anyone acting in a manner prejudicial to the security of Malaysia, or to the maintenance of the country’s essential services or economic life. Under Sosma, only those suspected of “security offences” may be detained by the police.
What’s not
So far so good, right? But Sosma is only slightly better and nowhere near ensuring that citizens’ basic constitutional rights are adequately protected, Najib’s promises notwithstanding. And let’s not even talk about a “golden democratic age”.
Many have already raised valid criticisms of the new law and I’ll just highlight a few key points.
Firstly, the definition for who may be arrested under Sosma remains too broad. The definition of “security offence” includes committing acts “prejudicial to national security and public safety”. This is no better than the ISA definition. Such a broad definition allows our government to deem, for example, the Bersih 2.0 rally, possession of Che Guevera T-shirts and Seksualiti Merdeka, a sexuality rights festival; as national security threats.
There are options instead of this broad definition. The Malaysian Bar has recommended using the definition of the United Nations (UN) Convention for the Suppression of the Financing of Terrorism. The UN definition confines terrorist acts to those specifically intended to cause death or serious bodily injury for the purpose of influencing government actions.
Secondly, the power to detain suspects for 28 days is given to the police, without judicial oversight. Persons arrested under Sosma need not be produced before a magistrate. A superintendent of police or officer of higher rank may extend the detention for 28 days “for the purposes of investigation”. Ordinarily, persons arrested by the police can only be detained for up to 24 hours. After that, the person must be released unless produced before a magistrate who may order further detention for the police to complete their investigation. The maximum period a person can be held under remand is seven or 14 days, depending on the seriousness of the offence.
This begs the question: If the government truly cares about protecting basic constitutional rights, what’s keeping them from instituting judicial oversight? Does the government not trust the judges with the country’s national security? Or, more likely, does it not trust the judges to agree with them on who exactly is a national security threat?
Thirdly, Sosma compels the court to imprison suspects after acquittal upon the public prosecutor’s application. If an acquittal is appealed and the public prosecutor applies for imprisonment of the accused, the law states that the court shall commit the accused to prison pending the appeal’s disposal.
The length of time it takes for appeals to be heard varies in this country. The Home Ministry’s appeal against the Dec 2009 High Court decision on The Herald’s use of “Allah” has yet to be heard. A person acquitted under Sosma can therefore be imprisoned for an indefinite time pending appeal.
False hope
This is no grand reform.
A government genuinely wanting to respect constitutional rights would not introduce a security law with so many loopholes. It would institute tighter safeguards with judicial oversight and not leave citizens open to abuse of police power. It would sign the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to ensure no suspect is subject to police abuse while in custody.
And while we’re at it, it wouldn’t repeal provisions requiring peaceful assemblies to obtain police permits only to introduce another law allowing police to set more onerous conditions. Or purport to “give” university students freedom to join political parties, but maintain control over the appointment of vice-chancellors and allowing the university board to deem any organisation unsuitable for students.
The reforms so far are grudging, piecemeal and at the heart of it, insincere. There is no “new era”, no “golden democratic age” to come. The government has merely made as few changes as possible to make it look as if genuine reform has taken place while ensuring it has left enough powers in reserve to continue maintaining control over citizens.
With all their grandiose pronouncements, it seems to me that the government is trying to drum up hope. Hope that things are changing. Hope that there is more to come. Hope that the Barisan Nasional (BN) government truly intends to relinquish its tight control over citizens. For hope, said the manipulative president in the movie The Hunger Games, is the only thing more powerful than fear. And hope may just return the BN into power with its two-thirds parliamentary majority and help them regain their lost states.
I, for one, am not hoping. The gap between the big words and the measly offerings of reform is just too wide for me to take any of this seriously. If Najib had in fact come clean and admitted that things are changing, but in tiny baby steps, then I may have started hoping. For that would be more honest, more sincere and more believable. 
Ding Jo-Ann hopes that Malaysians will not accept the government’s “reforms” but push for true reform so no Malaysian government will have the power to control and restrict citizens’ basic constitutional rights.
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Gopal Raj Kumar says
The first thing this writer has to come to grips with is that protection of what she calls “Malaysians’ basic rights” which she wants. What, in the first place, does she call ‘basic rights’?. There are rights and there are rights. A cursory reading of the Malaysian constitution will clearly show that rights under the constitution are qualified in every way. The same, too applies to constitutionally “guaranteed rights” in most countries. It is the fine print that limits the extent of those “rights”.
Getting rid of the ISA does not guarantee the abrogation of state responsibility to arbitrary arrest and detention without trial. It happens in the US, in all of Europe, in the UK and in Australia as well.
Any departure from such norms, like freedom from arbitrary arrest and detention without trial, are subject to a case-by-case assessment. For instance, if another Nordin Top were to surface and there exists an imminent and present danger to the public from the likelihood (in the estimation of the police and security apparatus of the state) that the man will offend. Arbitrary preventive arrest and detention in these circumstances is justified in the constitution.
Of course, in his defence the Nordin Tops of this world will claim they are being persecuted and are being arrested and detained on purely politically-motivated grounds which is unconstitutional just like Ambiga, Guan Eng and Anwar’s supporters, and they themselves, claim when they seek to breach the law.
There will always be the legitimate right in the hands of any properly and lawfully elected government to exercise the right to suspend or deny individuals or groups of people their rights under the constitution.
The UK is currently re-examining the return to internment in Northern Ireland in preparation for a return of the republican militants> last week a 600-pound was detonated by security forces in Northern Ireland. The second such incident in a month. Don’t count on any sympathy from Britain for the Bersih cause.