PETALING JAYA: A lawyer joining the chorus of calls for amendments to the Special Offences (Special Measures) Act 2012 (Sosma) has spoken of a need to revise the section covering the protection of witnesses.
Speaking to FMT, R Sivahnanthan noted that the debate so far has mainly been on the detention period of 28 days and has largely ignored what he believes is a necessity to amend Section 14 of the act.
The section allows for a witness to testify without being seen or heard by the accused or his counsel.
Sivahnanthan said this meant that hearsay evidence was admissible, whereas “the rule of thumb is that the more serious the offence, the more convincing must be the evidence produced.”
He said the rule should apply to Sosma cases since they would often involve matters as serious as national security.
He noted that courts in India and the United Kingdom reject hearsay evidence.
He said: “Imagine that I don’t know who the witness is. I don’t know his name, I can’t see or hear him, but he comes to court saying, ‘Yes, the accused is a terrorist. I’ve seen him carrying an AK47 in his hand. People told me he’s a terrorist. People told me he’s planning a terrorist attack.’
“All these are admissible under Sosma. It’s nearly impossible to rebut this kind of evidence without first knowing the background and connection between the witness and the accused.”
Sosma came under scrutiny again recently after police arrested 12 people under the act for alleged links to the defunct Liberation Tigers of Tamil Eelam. The suspects include two DAP members who are state assemblymen.
The arrests drew flak from various groups, with the Malaysian Human Rights Commission (Suhakam) saying it has consistently viewed detention without trial, as provided for under Sosma, as against the “core principles” of human rights.
Sivahnanthan said he believed the act should not be abolished in order to ensure peace and harmony in the country, but he added that changes must be made to unjust and draconian provisions.
He said Section 30, which allows for an accused’s detention pending the exhaustion of the legal process, was unfair as it could take years before the acquittal of an innocent person.
He noted that the prosecution needs only to make an oral application to the High Court, informing it of the intention to appeal to the Court of Appeal, and this will deny the accused bail until the appeal is heard.
“Even if the accused is acquitted and proven to be innocent in the Court of Appeal, the prosecution can orally inform the court of its intention to appeal to the Federal Court.
“The accused will again be denied bail until the case is heard there. Why should a person serve six to seven years of remand after being acquitted as innocent?”
Referring to the 28-day detention period provided under the act, he suggested that 14 days be given for the police to investigate the accused, after which they can apply for an additional two weeks.
“The judge can decide whether there is basis to further investigate,” he said.
“If you do it this way, there are better checks and balances. We definitely do understand that the police need a good amount of time to do their investigations since it is an offence related to security.
“But one long stretch of detention for 28 days is definitely daunting. What happens to the accused in police custody in those 28 days is vague. They might be getting tortured, for example.” - FMT
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