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Malaysia’s security law reform must regain momentum

By Ng Sze Fung

Reviewing security laws, and possibly other draconian laws, acknowledges that these are relics of the past that have no place in contemporary Malaysia. The new government’s deliberations must include the question of repealing the controversial Security Offences (Special Measures) Act (SOSMA).

On 12 December 2022, within two weeks of his appointment to Anwar Ibrahim’s cabinet, Home Minister Saifuddin Nasution Ismail dropped a bombshell during a press conference. He declared that Malaysia’s unity government has, for the time being, no intention of reviewing the controversial Security Offences (Special Measures) Act (SOSMA) 2012. Saifuddin defended the need for such a law on the grounds that it is less punitive than its predecessor, the Internal Security Act (ISA) 1960. SOSMA provides for 28 days of detention with access to legal recourse. The ISA allowed a longer initial detention-without-trial period of 60 days, and two-year extensions of the detention at the discretion of the Home Minister.

Human rights watchers, the legal fraternity, the general public, and even government lawmakers have expressed dismay and disappointment at SOSMA’s continuation. The formation of the new unity government with the Pakatan Harapan (PH) coalition at its core led many to expect the newly-appointed Cabinet ministers to take action on democratic reforms that PH has long advocated.

In step with their reformist credo, last July 88 Pakatan Harapan MPs voted in parliament against a SOSMA provision that allows 28-day detentions without trial to be renewed indefinitely. PH was then unwilling to compromise its stance on arbitrary detention under SOSMA despite inking a bipartisan Memorandum of Understanding (MoU) on Transformation and Political Stability with the federal government. However, the government mustered a majority and extended this provision for another five years.

The official justification for the security offences legislation is to combat organized crime and acts of terrorism, which may require the detention of suspects for a period while investigations are in progress. However, despite salutary intentions and the replacement of the notorious ISA, recent history has shown that these laws can still be used to silence legitimate opposition and political dissidents. In 2015, then Prime Minister Najib Razak invoked SOSMA to arrest Khairuddin Abu Hassan and Matthias Chang who had lodged reports overseas that facilitated investigations into the 1MDB scandal, clearly to shield himself from further exposure.

The above abuses of SOSMA, and of the ISA previously, go against the original spirit of the law. Malaysia’s first Prime Minister Tunku Abdul Rahman stated, at the ISA’s inception in 1960, that it is to “be used solely against the communists and never to be used to stifle legitimate opposition and silence lawful dissent”. The ISA was introduced to counter the Malayan emergency, a guerrilla war fought between the communist pro-independence Malayan National Liberation Army (MNLA) and the military forces of the British Empire and Commonwealth.

However, the law has been weaponised against political opposition under the pretext of dealing with security threats, undermining fundamental liberties in Malaysia. Its continual presence leaves an open door for the country to regress back to police state practices of the past. Laws such as SOSMA should be consigned to the annals of history.

Deep reservations toward SOSMA were articulated by the Malaysian Bar Council at its introduction in 2012. The Bar Council argued that the existing legal provisions are adequate to deal with security offences. Malaysia’s ordinary criminal law, as established in the Criminal Procedure Code (CPC), provides for up to 14 days of detention. The 14-day period should be more than enough to investigate terrorism and organised crimes. For reference, other countries such as the United Kingdom allow a pre-trial detention period of 14 days for terror suspects.

There is no reason for the punitive measures deployed under SOSMA, as Malaysia has incrementally expanded countermeasures against terrorism. Malaysia’s Penal Code was amended in 2012 to deal specifically with terrorism-related offences. It is worth noting that the introduction of these terrorism-specific provisions coincides with the passing of SOSMA. In addition, legal oversight of these offences are supplemented by the Prevention of Terrorism Act (POTA) 2015 and the Special Measures against Terrorism (in Foreign Countries) Act 2015.

While the Home Minister Saifuddin’s statement drew the ire of pro-reform groups, the de facto Deputy Law Minister Ramkarpal Singh sensibly reached out to Saifuddin, stressing the need for a review of SOSMA. On 23 December 2022, Ramkarpal said that engagement sessions with the relevant stakeholders will be held to gather feedback on the best possible ways to address the provisions which are disproportionate and open to abuse. Civil society will be watchful that the deliberations include the question of repealing SOSMA. As mentioned, the CPC provides a timeframe which is deemed adequate for investigations pertaining to security offences. More so, the CPC provides safeguards which help guarantee the fundamental liberty of the person detained.

Bold and forward moves to review security laws, and possibly other draconian laws, acknowledge that these are relics of the past that have no place in contemporary Malaysia. The possible formation of a Law Commission, mooted by de facto Law Minister Azalina Othman on 12 December 2022, is also opportune as an institution to ensure that Malaysia’s laws are being continuously reviewed, revised and updated without relying on political will or public pressure to make these changes.

Should Malaysia enjoy a stable government in the coming years and deliver on broader democratic reforms, the country’s standing will be elevated in line with Prime Minister Anwar Ibrahim’s decades-long championing of “reformasi”.

– Published in Fulcrum on 5 January 2023.

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