The Nut Graph Holding Court by Ding Jo-Ann
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
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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