Ooi Chia Rou, Nichole How Yuan Tung, Nur Ellyana Farina Binti Muhammad Ello, Lim Cheah Hoay and Lee Yie Shyuan
The Security Offences (Special Measures) Act 2012 (“SOSMA”) was introduced as a response to tackle growing security threats, terrorism and organised crime, following the repeal of the Internal Security Act. However, since its enactment in 2012, SOSMA has faced significant controversy for undermining the right to a fair trial—a fundamental principle of justice.
With the increased criticism over the use of SOSMA, particularly with the questions about the necessity of SOSMA have grown louder, the question arises: should SOSMA be reformed or should it be repealed altogether? To have this discussion, it is inevitable for us to examine SOSMA’s origins, its applications, and future development of SOSMA.
Historical Context and the Need for SOSMA
SOSMA traces its origins to the Internal Security Act 1960 (“ISA”), a law inherited from British colonial rule aimed at suppressing the communist insurgency, until the introduction of SOSMA in 2012, as a response to evolving security concerns, such as terrorism.
However, public opinion on national security laws often fluctuates depending on the political climate. In the past, during the communist insurgency, stricter laws were widely accepted. Today, with the country enjoying relative peace, many had hoped SOSMA would adopt a more balanced approach, taking into account both security needs and human rights. Questions about the necessity of SOSMA have also grown louder, and there are growing calls to review SOSMA.
SOSMA: A Necessary Tool or a Threat to Constitutional Rights
While SOSMA is meant to tackle serious security threats, its application has been highly controversial. Below are some notable cases where SOSMA has been applied, which has sparked controversy, raising concerns about its potential misuse for among others, as a tool of political suppression to silence political opposition and activists, rather than a legitimate means of addressing security threats.
A. Khairuddin Abu Hassan and Matthias Chang (2015)
In 2015, Datuk Seri Khairuddin, a former Umno division leader, and his lawyer Matthias Chang were detained under SOSMA. It was reported that the two had lodged reports with the FBI to investigate the 1MDB scandal, a move that many saw as an attempt to bring global attention to corruption in Malaysia. After 62 days in detention, the charges against him were dropped, and he was acquitted. Khairuddin later filed a suit against 8 Defendants, including police officers, Deputy Public Prosecutor, Attorney General of Malaysia and the Government of Malaysia, claiming wrongful detention. In 2018, the High Court allowed Dato Seri Khairuddin’s claim for unlawful detention under SOSMA and awarded him RM300,000 in general damages.[1]
B. Maria Chin Abdullah (2016)
In 2016, Maria Chin Abdullah, the then-chairperson of the Bersih 2.0 movement, was arrested on the eve of the Bersih 5 rally. She was detained under SOSMA for allegedly receiving foreign funds to destabilise Malaysia’s democracy, specifically from the Open Society Foundation (“OSF”).
However, Bersih 2.0 had publicly stated they no longer receive such funds. Her detention, including 10 days of solitary confinement, drew widespread condemnation and raised fears that SOSMA was being used to suppress dissent and intimidate civil society activists.[2]
In 2018, Maria filed a lawsuit against the Inspector-General of Police (“IGP”), the Home Minister and the government of Malaysia for wrongful detention under SOSMA. The case was eventually settled by way of consent judgment, wherein the government is to pay RM25,000.00 in damages.
C. The Liberation Tigers of Tamil Eelam (“LTTE”) Case (2019)
In 2019, SOSMA was used by the Pakatan Harapan government under Home Minister Muhyiddin Yassin to detain several members of the opposition Democratic Action Party (DAP) over alleged links to the now-defunct LTTE, a terrorist group in Sri Lanka.
The individuals were arrested and detained under SOSMA, however, as the trial was approaching, the prosecution turned to the Penal Code and charged the 12 individuals with 34 charges of terrorist act under the Penal Code, despite they were detained under SOSMA, for “giving support”[3] “in possession” and “displaying” [4] photographs of LTTE leaders on their phones or social media. At all material times, no evidence of direct involvement in terrorist activities was presented.
On 21.2.2020, then Attorney-General Tan Sri Tommy Thomas exercised his discretion under Article 145(3) of the Federal Constitution and discontinued the proceedings against the 12 accused on the 34 charges under the Penal Code, as there were no “realistic prospect of conviction”[5].
D. The Global Ikhwan Services and Business Holdings Sdn. Bhd. (“GISBH”) Case (2024)
The most recent and controversial use of SOSMA occurred in 2024 with the arrest of members of GISBH. The police raided 20 charity homes nationwide, rescuing over 600 victims and arresting more than 400 individuals. Since the Royal Police Malaysia initiated Operation Global, 58 individuals from GISBH have been detained under SOSMA for their involvement in serious crimes, including human trafficking, child exploitation, and the indoctrination of religious fanaticism.[6]
The use of SOSMA in this case was defended by Home Minister Datuk Seri Saifuddin, who argued that it was necessary to allow police adequate time to investigate the scale of the criminal activities.[7] While some Members of Parliament, expressed concern and opposition against the use of SOSMA in the GISBH investigation,[8] the Home Minister maintained that SOSMA was justified in this instance due to the serious nature of the crimes involved.[9]
SOSMA in Ensuring National Security
The significance of SOSMA is often touted by the administration for its provision of enhanced powers to law enforcement agencies in addressing serious security offences, such as terrorism and threats to national security. In the digital age, the convergence of cybercrime and terrorism has become an increasingly critical concern, with these threats growing more complex and difficult to track. Therefore, the 28-day detention period allows authorities to conduct thorough investigations without formal charges for cases where security concerns exist, but immediate prosecution is not yet possible.
The Royal Malaysia Police contend that handling complex security threats, particularly terrorism, often requires extended detention periods to effectively collect evidence. Although the police are granted 28 days for an investigation, in practice, they have only 21 days to complete it, as 7 days before the 28-day period ends, they must submit the finalised investigation report to the Attorney General’s Chambers for further instructions. Without an extension of subsection 4(5) of SOSMA, and if the 28-day detention period is not maintained, there are concerns that the quality of police investigations could be compromised. The police argue that such laws are necessary to enable swift actions that protect against public intimidation and threats to public welfare.[10] It was reported that SOSMA is effective in counterterrorism and the police had foiled 23 terror plots nationwide since 2012.[11]
However, the broad and vague definition of “securities offences” in SOSMA, which covers a wide range of offences related to terrorism, espionage, sabotage, and other actions deemed a threat to national security, has led to concerns that it may be applied beyond its intended purpose. For instance, SOSMA has been used against peaceful protesters, civil society activists, or political critics, as seen in the cases of Maria Chin Abdullah and Khairuddin Abu Hassan (above). Critics argue that the vagueness in the definition could lead to selective enforcement, potentially creating a chilling effect on free speech and assembly, as activities deemed detrimental to parliamentary democracy could be reclassified as security threats under SOSMA.
The Contentious Nature of SOSMA
A. Human Rights Violation
Since its inception, SOSMA has faced criticism for its impact on fundamental human rights. The Human Rights Commission of Malaysia (“SUHAKAM”), Suara Rakyat Malaysia (“SUARAM”) and the Malaysia Bar have been vocal in their calls for the repeal of SOSMA arguing that it violates constitutional guarantees and leads to human rights abuses, such as violation of individuals’ rights to personal liberty, fair trial, and legal representation. It is often argued that the lack of checks and balances in the enforcement of SOSMA has raised serious concerns about the potential for abuse, with critics warning that it could be used to silence political opposition or curtail freedom of expression under the guise of national security.
One of the most contentious provisions of SOSMA is Section 4(5), which grants police officers the authority to detain individuals for up to 28 days without judicial oversight for the purposes of investigation.
The only safeguard in place is the sunset clause under Section 4(11), which mandates that this provision be reviewed every five years. On 23.3.2022, a motion to extend Section 4(5) was narrowly defeated in Parliament.[12] However, just a few months later, on 20.7.2022, a motion was tabled to quash the previous decision, pursuant to the House of Representative’s Standing Order 36(3).[13] Subsequently, on 26.7.2022, our then Home Minister re-tabled the motion to extend the enforcement of Section 4(5). Contrary to the outcome on 23.3.2022, 111 of the Members of Parliament voted in favour, with 85 MPs voted against. With the majority vote, Section 4(5) of SOSMA was renewed for another 5 years, with the effective period until 31.7.2027.[14]
In the U-turn, the possibility of reform of SOSMA to reject the extension of the 28-day detention period was overturned. This back-and-forth decision-making highlights the political divide surrounding SOSMA, with some MPs arguing that the law is essential to combating modern security threats. In contrast, critics argue that SOSMA grants excessive powers to law enforcement and undermines the principles of democracy and human rights.[15]
B. The Separation of Powers
SOSMA also raises concerns regarding the principles of separation of powers – a fundamental principle of governance that ensures no single branch of government can overreach – to be upheld. Briefly, the principle of separation of powers is based on the idea of having three separate branches: executive, judicial, and legislative so that the three branches are distinct and have checks and balances on each other to ensure no one branch can gain absolute power or abuse the power they are given.
The next question to ask is whether SOSMA affords accessibility of the court to an accused and whether the Court’s power to review cases which are initiated under the disguise of national security under SOSMA. Recently, cases have been brought before the courts challenging the constitutionality of certain provisions of SOSMA, with arguments that these provisions infringe upon the judiciary’s power.
B1. Section 4(5)- Power for detention
In Tanasilan Nakethiran v PP & Ors [2023] 1 LNS 872, the constitutionality of subsection 4(5) of SOSMA was examined, as it was argued that Section 4(5) restricts the judiciary’s power to grant detention and cut across the doctrine of separation of powers which forms part of the basic structure of the Constitution. The High Court Judge Noorin Badaruddin held that it is not unconstitutional, nor does it contravene Article 121 of the Federal Constitution. The distinction was drawn between the judiciary power to order for remand, and the 28-day detention under SOSMA, which is deemed as executive detention under SOSMA. Section 4(5) does not restrict the judiciary’s power but merely grants the executive power to make executive detention.
B2. Section 13 of SOSMA, the Denial of Bail
Section 13 of SOSMA, which denies bail to those charged with security offences, has also been a point of contention. The denial of bail undermines the judiciary’s discretion in determining whether an individual should be granted bail and is seen as a breach of fundamental rights.
In this respect, in 2020, the High Court in Saminathan A/L Ganesan v Public Prosecutor [2020] 7 MLJ 681 ruled that Section 13 was unconstitutional, arguing that it infringed upon the judiciary’s power to grant bail as enshrined in Article 121 of the Federal Constitution, as it divests from the courts the judicial discretionary power to consider bail in cases of offences relating to terrorism under the Penal Code.
However, in the following months, two separate High Court decisions upheld the constitutionality of Section 13. In Suresh Kumar a/l Velayuthan v Public Prosecutor [2020] 10 MLJ 549, the judge held it is the Parliament Parliament’s clear intention that the bail provision in Section 13 of SOSMA was meant to prevail over the general provisions of bail under section 388 of the Criminal Procedure Code.
Similarly, in Md Nasir Uddin v Public Prosecutor [2021] 11 MLJ 448, the Judge held that the court was not bound by the decision in Saminathan (supra). Instead, the learned judge adopted the principle in Public Prosecutor v Khairuddin bin Abu Hassan & Anor [2017] CLJ 701, the learned High Court Judge ruled that section 13 of SOSMA is constitutional, for the reason that there is a presumption of constitutionality operating in favor of SOSMA.
Reform or repeal?
As we can see from the above, SOSMA has drawn significant criticism over the years for its perceived erosion of fundamental freedoms, particularly those enshrined in Malaysia’s Federal Constitution. As Malaysia grapples with the future of SOSMA, the question arises: should SOSMA be reformed, or should it be repealed altogether?
While SOSMA was originally designed as a tool to combat terrorism, it has often been misused, with reports of detainees being subjected to mistreatment and unfair practices, particularly in politically sensitive cases. The lack of checks and balances in the enforcement of SOSMA has raised serious concerns about the potential for abuse, with critics warning that it could be used to silence political opposition or curtail freedom of expression under the guise of national security.
In 2019, our then-Prime Minister Tun Dr. Mahathir Mohamad expressed a commitment to reviewing and amending SOSMA, along with other repressive laws. The Malaysian Bar welcomed this move, emphasizing that while minor reforms might be a step forward, they would not suffice.[16] The call was clear: SOSMA should be repealed in favour of laws that balance national security with the protection of individual rights.
However, despite the widespread criticism, the government’s position on SOSMA has been more cautious. As we can see from the illustration below regarding the development of SOSMA, the back-and-forth government’s decision-making highlights the deep political divide surrounding SOSMA. The differing judicial opinions, coupled with the political tensions, underscore the contentious nature of the Act and its provisions. The ongoing debate over its constitutionality, the practical necessity of certain measures, and the governance of human rights under SOSMA remain unresolved issues, ultimately requiring further attention from lawmakers and Members of Parliament.
The Path Forward.
The trajectory of SOSMA underscores the ongoing tension between national security concerns and the protection of individual rights. On one hand, there is a legitimate need to address increasingly sophisticated security threats, including terrorism and organised crime. On the other hand, it is crucial that Malaysia’s legal framework respects the principles of justice, fairness, and due process as enshrined in the Federal Constitution.
The debate on SOSMA is emblematic of this struggle. While there are valid concerns about the effectiveness of existing laws like the Penal Code and the Criminal Procedure Code in dealing with modern security threats, it is clear that SOSMA, as it currently stands, contains provisions that undermine fundamental rights. As such, a comprehensive reform of SOSMA is essential. This reform should focus not only on amending draconian provisions like those found in Sections 4 and 13 but also on ensuring that any changes made respect the rule of law and human rights.
Former Dewan Rakyat Speaker Tan Sri Mohamad Ariff Md Yusof has called for a cautious approach to reform, emphasising that while change is necessary, it should not come at the expense of security. Repealing SOSMA outright may not be practical in the current political climate, but significant safeguards must be put in place to ensure that those detained under the law are afforded their constitutional rights and that abuses of power are prevented.[17]
Ultimately, Malaysia must strike a balance between securing the nation and protecting its citizens’ rights. This balance requires ongoing dialogue, careful consideration of the law’s impact, and a commitment to reforms that strengthen both security and human dignity.
Footnote:
[1] Khairuddin bin Abu Hassan v Wan Aeidil bin Wan Abdullah & Ors [2022] MLJU 2052[2] “Maria Chin settles suit amicably over her wrongful arrest under Sosma”, New Straits Times dated 18.2.2019 https://www.nst.com.my/news/crime-courts/2019/02/461199/maria-chin-settles-suit-amicably-over-her-wrongful-arrest-under
[3] Section 130J(1) of the Penal Code makes it an offence if a person “gives support” to- (a) any terrorist group; or (b) the commission of a terrorist act; and
Section 130J(2) lists numerous examples of “giving support” including: “Using the social media or any other means to –(i) advocate for or to promote a terrorist group, support for a terrorist group or the commission of a terrorist act; or (ii) further or facilitate the activities of a terrorist group.”
[4] Section 130JB(1) of the Penal Code makes it an offence for anyone who – (a) has possession, custody or control of; or (b) provides, displays, distributes or sells any item associated with any terrorist group or the commission of a terrorist act.
[5] “AG discontinues criminal proceedings against LTTE 12”, Malaysia Kini dated 21.2.2020 https://www.malaysiakini.com/news/511720
[6] “Op Global: Senior GISBH management among 16 re-arrested under SOSMA”, the Sun dated 10.10.2024 https://thesun.my/malaysia-news/op-global-senior-gisbh-management-among-16-re-arrested-under-sosma-CC13115531; “Malaysia child abuse case: CEO of GISB, wife among 22 people charged with being members of organised crime group”, CNA dated 23.10.2024 https://www.channelnewsasia.com/asia/gisb-al-arqam-malaysia-child-abuse-human-trafficking-4696476 ; and “Why Sosma, and why application for ‘habeas corpus’ should not be delayed — Hafiz Hassan”, Malay Mail dated 16.10.2024 https://www.malaymail.com/news/what-you-think/2024/10/16/why-sosma-and-why-application-for-habeas-corpus-should-not-be-delayed-hafiz-hassan/153779#google_vignette .
[7] “GISBH: Use of SOSMA due to involvement in serious crimes- Saifuddin Nasution”, the Sun, dated 15.10.2024 https://thesun.my/malaysia-news/gisbh-use-of-sosma-due-to-involvement-in-serious-crimes-saifuddin-nasution-IA13138761
[8] “MPs question need to use Sosma against GISB members”, the Straits Times dated 15.10.2024 https://www.nst.com.my/news/nation/2024/10/1120204/mps-question-need-use-sosma-against-gisb-members; and “Why SOSMA?”, Bebas news dated 16.10.2024, https://bebasnews.my/2024/10/16/why-sosma/
[9] “GISBH: Use of SOSMA Due to Involvement in Serious Crimes – Saifuddin”, BERNAMA dated 15.10.2024 https://www.bernama.com/en/news.php?id=2352109
[10] “Without SOSMA, Malaysia would be at the mercy of criminals and terrorists, says Home Minister”, Ministry of Communications dated 23 March 2022, https://www.malaymail.com/news/malaysia/2022/03/23/without-sosma-malaysia-would-be-at-mercy-of-criminals-and-terrorists-says-h/2049083
[11] “Malaysia lucky to have Sosma, says Ayob Khan despite calls for abolishment”, Malay mail dated 27.8.2024, https://www.malaymail.com/news/malaysia/2018/08/27/special-branch-no.2-says-malaysia-lucky-to-have-sosma-despite-calls-for-abo/1666354
[12]“Dewan Rakyat rejects extension of SOSMA 28-day detention” The Edge Malaysia dated 23.3.2022, https://theedgemalaysia.com/article/dewan-rakyat-rejects-extension-sosma-28day-detention; and “Govt motion to renew key Sosma provision defeated, 2 votes shy”, Malaysia Kini dated 23.3.2022 https://www.malaysiakini.com/news/615593
[13] “Home Ministry to retable motion to extend Subsection 4(5) of SOSMA”, Awani International, dated 20.7.2022, https://international.astroawani.com/malaysia-news/home-ministry-retable-motion-extend-subsection-45-sosma-372101
[14] “Extension of Sosma clause allowing for 28-day detention passed by Dewan Rakyat”, Free Malaysia Today dated 26.7.2022, https://www.freemalaysiatoday.com/category/nation/2022/07/26/extension-of-sosma-clause-allowing-for-28-day-detention-passed-at-dewan-rakyat/
[15] Malaysian Bar, Press Release “Repeal SOSMA- Recognise Right to a Fair Trial and the Rule of Law” dated 7.11.2019, https://www.malaysianbar.org.my/article/about-us/president-s-corner/pressstatements/press-release-repeal-sosma-ndash-recognise-right-to-a-fair-trial-and-the-rule-of-law
[16] “Sosma, other draconian laws to be amended soon, says Dr Mathahir” Free Malaysia Today dated 5.11.2019, https://www.freemalaysiatoday.com/category/nation/2019/11/05/sosma-other-draconian-laws-to-be-amended-soon-says-dr-m/
[17] “Former speaker: Now not the right time to repeal Sosma, Sedition Act” Malaysia Kini dated 19.8.2023. https://www.malaysiakini.com/news/676233; and https://www.youtube.com/watch?v=LaubhImnrJo
