Lawyer: Why Sosma should have been repealed as promised by PH govt

Shankar Ram Asnani

KUCHING, Dec 4: Senior lawyer Shankar Ram Asnani today said the Security Offences (Special Measures) Act 2012 (Sosma) should have been repealed as promised by the Pakatan Harapan (PH) Government as there are in existence enough provisions under the present Malaysian Criminal Laws which could be used against all kinds of offences.

Today, Sessions Court Judge Steve Ritikos had postponed the case of PP v Mohamad Roslan Marjo to January 28, 2021, for further mention because the appeal by the Prosecution to the Court of Appeal against the decision of the High Court in granting the orders to release the accused is pending hearing, after several postponements.

“It is a correct decision made by the Honourable Sessions Judge on the matter, pending the conclusion of the matter on points of law in the Court of Appeal,” Shankar told Dayakdaily here today.

The accused had in fact filed his application dated Nov 12, 2018, in the High Court to challenge the constitutionality of Sosma 2012 and High Court Justice Azhahari Kamal Ramli on Dec 21, 2018, ruled that “[4] notwithstanding the fact that offences under Part IIIA of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Atipsom) under which s. 26E was enacted, has been listed as security offence under the First Schedule of Sosma, it does not provide a blanket provision approval/categorically that all offences thereunder must be treated/considered/defined as security offence under the said Act.

“It is open to the defence to challenge whether any particular offence under the particular section under the First Schedule qualified to be considered as security offence or the purpose of a trial under Sosma. At the same time, it was incumbent upon the court to determine whether that particular offence fell under the ambit of the Sosma,” said Shanker, who is Roslan’s defence lawyer.

He said the definition of ‘smuggling of migrant’ under s. 2 of the Atipsom involved an element of ‘unlawful entry’ into or through or unlawful exit from any country of which the person was not a citizen or permanent resident. Issuance of the passport to Malaysian citizen could not tantamount a threat to public order. Having been issued a travel document, albeit fraudulently, will not make a Malaysian citizen a smuggled migrant under the Atipsom.

“The offence purportedly committed by the accused under s. 26E was an act prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the federation or any part thereof ie, which fell under art. 149(1)(e) of the FC. Hence, the 12 charges preferred against the accused fell within the scope of art. 149(1)(e) of the FC and should not be treated as security offence.

“Consequently, the charges against the accused should be tried in the Sessions Court and the accused had the right to be released on bail. The bail application was to be dealt with by the Sessions Court. All the charges in the High Court were struck out and the accused was discharged not amounting to an acquittal,” said Shanker.

The accused is now on bail and if not for the decision of the High Court, Marjo would have been detained in Prison from Oct 22, 2018 which is the date the charges were preferred up to now.

On Sosma, Shankar argued that, as per the purpose of the enactment, it should be confined to terrorists and/or terrorism-related activities.

“Sosma is an oppressive law which the PH government promised to repeal it before they came into power.

“But when they came into power, they did nothing about it until alleged members of LTTE (Liberation Tigers of Tamil Eelam), got arrested, then they started to make noise. But they never repealed the law.

“They promised to repeal it and they could have done it but they did not,” he stressed.

Last year, few alleged LTTE members were arrested under SOSMA. The now-defunct LTTE was a militant separatist group fighting for an independent homeland for Hindu Tamils in North-eastern Sri Lanka.

According to Shankar, former Prime Minister Tun Dr Mahathir Mohamad has in fact promised to repeal Sosma.

“Dr Mahathir had on July 22, 2018, was reported to have said that since Sosma was passed by former Prime Minister (Datuk Seri) Najib (Tun Razak), he had promised to repeal the law. But he didn’t,” said Shankar.

Shankar reiterated that even former Attorney-General Tan Sri Tommy Thomas was also reported on August 25, 2018 to have said they would repeal Sosma but nothing was done. Thomas was quoted to have said that Sosma, which was passed in 2012, is against civil liberties and will go soon.

Under Sosma, a person could be detained pending trial all the way and even up to the appeal stages of the case which can take years.

The law was enacted to deter extremists, including those linked to the Islamic State.- DayakDaily