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Malaysia's national flag flies in front of the Federal Court on a hazy day in Putrajaya, Malaysia, October 6, 2015. © 2015 Reuters
(Bangkok) – The Malaysian government should urgently repeal the draconian 2012 Security Offenses (Special Measures) Act (SOSMA), Human Rights Watch said today. The detention of 12 people, including two ruling coalition politicians, for more than two weeks in October 2019 for alleged links to a defunct Sri Lankan armed group highlights due process violations under the law.

“The Malaysian government has not only failed to fulfill its campaign promise to repeal the draconian provisions in SOSMA, but it’s still arresting people under this deeply flawed law,” said Phil Robertson, deputy Asia director. “The government should also implement the pledges in its election manifesto to repeal other legislation allowing for indefinite detention without trial, notably the Prevention of Crime Act 1959 and the Prevention of Terrorism Act 2015.”

Under SOSMA, certain offenses under the Penal Code are categorized as “security offenses” for which different rules of evidence and trial procedure apply. Many of these provisions violate international human rights standards on the right to a fair trial, Human Rights Watch said. For instance, those charged with SOSMA security offenses cannot be granted bail. Even after a suspect has been acquitted, the public prosecutor can apply under SOSMA for the accused to remain detained pending an appeal, which the courts must grant.

SOSMA also allows for “protected witnesses,” whose identity is concealed from the accused and their counsel, to give evidence. This violation of international fair trial standards makes it difficult for the accused to challenge the credibility of witnesses and mount an adequate defense of the charges. Furthermore, SOSMA provides that “any statement by an accused whether orally or in writing to any person at any time” can be admitted into evidence, with no exception for evidence obtained under duress. This provision, coupled with provisions permitting the police to detain suspects for up to 28 days without any judicial oversight, increases the risks of torture and other ill-treatment in custody.

Procedural rules that jeopardize basic human rights and fair trial guarantees not only increase the likelihood of rights violations, they decrease the likelihood that those responsible will be discovered and punished, Human Rights Watch said. Those accused of terrorist acts should be charged and tried according to the regular rules of evidence and procedure to ensure their right to a fair trial. As the United Nations Global Counter-Terrorism Strategy of 2006 notes, violations of human rights are among the conditions “conducive to the spread of terrorism,” even though they can never excuse or justify terrorist acts.

The Protection of Crime Act (POCA) 1959 and the Prevention of Terrorism Act (POTA) 2015 also need urgent revision. Under the Prevention of Crime Act, police can detain suspects for up to 59 days with no judicial oversight. A government-appointed board can impose detention without trial for up to two years, renewable indefinitely, order electronic monitoring, and impose other severe restrictions on freedom of movement and association, without judicial review.

The Prevention of Terrorism Act empowers an unaccountable Prevention of Terrorism Board to order detention without trial. Suspects brought before the board are not entitled to be represented by legal counsel. The Board’s decisions are final and not subject to judicial review except on procedural grounds.

“Eighteen months after assuming office, the Pakatan Harapan government is outrageously still using the abusive SOSMA to violate people’s rights,” Robertson said. “Efforts to bring an end to police abuse are unlikely to be successful so long as the authorities have an array of legal tools that permit denial of fair trial rights.”

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