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Monday, November 30, 2020

No to Sosma, even for water saboteurs


On Nov 23, 2020, two men were charged under Section 124K of the Penal Code in relation to the recent water disruptions in Kuala Lumpur and Selangor. 

According to the charge, they allegedly committed sabotage on the water supply. Both men pleaded not guilty to the charge.

They were not the first persons charged with causing pollution to the water supply in Selangor and Kuala Lumpur. However, they were the first to be charged under Section 124K of the Penal Code for the offence of "sabotage".

Section 124K of the Penal Code provides that "whoever, by any means, directly or indirectly, commits sabotage shall be punished with imprisonment for life." It is indeed a serious offence and if found guilty, the two men will face the sentence of life imprisonment.

They are also the first to be tried under the Security Offences (Special Measures) Act 2012 (Sosma) for the offence of water pollution.

Some media have erroneously reported that the men have been charged under Sosma. However, Sosma does not contain predicate offences, unlike the Penal Code. A person cannot be charged under the Act.

Sosma is a law that provides for the 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, and also include Section 124K, ie the offence of sabotage.

Sosma is a problematic law. Many critics, including myself, have frequently called upon the government to abolish Sosma.

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 with 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 "confession" would be inadmissible. However, because of Section 18A, these "confessions" will be used in court.

We should give our full support to the authorities in taking heavy action against those who have sabotaged the clean water supply in Selangor. Their actions have impacted millions in Kuala Lumpur and Selangor and the full force of the law should be used against them.

The use of Section 124K of the Penal Code against them in this instance is warranted.

However, we must not support the use of Sosma against them. The full force of the law cannot include draconian and unjust laws such as Sosma.

If there is evidence against these men, then they will be found guilty. There is no need to stack the decks against them since they are already facing the full machinery of the state.

We must allow them to defend themselves, as any other accused person would.

The right to a fair trial is the bedrock of our criminal justice system. The use of Sosma makes a mockery of this system.

Whatever we may feel about the alleged offence these people have committed, we must not close one eye against any potential injustice they may suffer as accused persons.

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

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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