Renewed calls to abolish Sosma

The recent arrests of individuals purportedly linked to the Liberation Tigers of Tamil Ellam (LTTE) have reignited debate on the Security Offences (Special Measures) Act 2012.

Sosma itself does not create offences. A person cannot be charged for an offence under Sosma. Sosma is a law that provides procedures, evidential rules and powers to the authorities in relation to what is known as ‘security offences’. ‘Security offences’, according to the Act, include offences which fall under Part VI (offences against the State) and Part VIA (terrorism) of the Penal Code.

Sosma allows for a person to be detained for a ‘security offence’ for up to 28 days without trial.

In response to the arrests, some have called for the individuals arrested to be charged in court, instead of being detained under Sosma. In my view, this call is misplaced.

I have conducted Sosma trials for those charged under these offences. The biggest problem with Sosma is not the 28 days pre-trial detention.

The pre-trial power of detention is certainly problematic. The detention is not a judicial detention, unlike the remand procedures for non-security offences. Under Sosma, a person can be detained for 28 days without judicial oversight. However, in most instances, once the 28 days is up, the suspect would either be freed, or charged in court.

Once they are charged in court, then Sosma provides that in most instances, the accused person cannot be granted bail. This detention would continue throughout the trial, and even if in the unlikely event that the accused person succeeds in his or her defence, if there is an appeal by the prosecution, the accused person will continue to be detained.

In practical terms, the accused person is therefore ‘punished’ even though he or she has not been found guilty of any offence.

Yet, the biggest problem with Sosma is the many provisions which favour the prosecution in a trial relating to security offences. There are provisions within Sosma that are inconsistent with the established rules of evidence.

Sosma does not provide accused persons the right to a fair trial. One example is in Section 18A of Sosma. It provides that any statement, whether written or oral, made to any person, shall be admissible in evidence.

Thus, what usually happens is that after days of questioning during the pre-trial detention, the accused will be pressured to sign a written ‘confession’ about his or her ‘crimes’. Under normal rules of evidence, such a ‘confession’ would be inadmissable. However, because of Section 18A, these ‘confessions’ will be used in Court.

We must also remember how laws such as Sosma can be abused. Petaling Jaya MP, Maria Chin Abdullah (above) was detained under Sosma before the Bersih 5 rally. There are other instances of how the law can be abused because of the wide and arbitrary powers given to the authorities.

Certainly, special laws are needed when it comes to security threats and terrorism. But any law must balance between the rights of individuals, with the need to keep the peace. Sosma does not strike that balance. Sosma does not provide a fair trial to accused persons.

I have long called for the abolition of Sosma, even before the change of government last year. I am renewing my consistent call for the law to be abolished. It is high time that we replace Sosma, as well as laws such as the Prevention of Terrorism Act (Pota) and Prevention of Crime Act (Poca) be abolished and replaced with laws which can ensure that the rights of individuals are preserved, without jeopardising national security.

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SYAHREDZAN JOHAN is a civil liberties lawyer and political secretary to Iskandar Puteri MP Lim Kit Siang. - Mkini