SOSMA allows for the continued detention of an acquitted person

(FMT) – Several lawyers have urged the government to repeal a provision in the Security Offences (Special Measures) Act (Sosma) that allows for the continued detention of the accused even after acquittal by the trial court.

Salim Bashir said such detention could be seen as disrespect for court decisions, especially in cases that involve offences like organised crime and terrorism.

“Accused persons who have been found not guilty are entitled to their freedom when they are remanded after failure to get bail,” he told FMT.

His remarks follow a statement by DAP veteran Lim Kit Siang who said his party would continue to press for the abolition of draconian provisions in Sosma.

Section 30 of the act allows the prosecution to apply for the continued detention of an acquitted person pending an appeal, which could end in the Federal Court.

Salim said this would be unfair to the individual, who could be incarcerated for up to three years until the legal process is complete.

“Compare this to an accused who is acquitted of murder or drug trafficking, which carry the death penalty.

“They are freed while the prosecution appeals against their acquittals,” he said.

He also referred to a recent High Court decision that judges can only consider bail applications against those charged with security offences where Sosma procedures are invoked.

In the decision on Nov 29, judge Mohd Nazlan Mohd Ghazali allowed the constitutional challenge brought by Melaka executive councillor G Saminathan, who was charged alongside 11 others with supporting the Liberation Tigers of Tamil Eelam (LTTE) group.

Nazlan said Section 13 of Sosma is ultra vires Article 121 of the Federal Constitution as it removes the discretion of judges to even consider bail applications.

Lawyer Abdul Shukor Ahmad said bail should be provided for all 12 men charged with promoting terrorism as a matter of course.

“Firstly, LTTE has been declared defunct since 2009. Also, no concrete evidence has been provided by the police so far,” he added.

In criminal cases, he said, the liberty of accused persons is of paramount importance as well, as they cannot be compensated if they are later found not guilty of the charges against them.

Lawyer Syed Iskandar Syed Jaafar Al Mahdzar said other provisions in Sosma which give prosecutors the upper hand in securing convictions while denying the defendant a fair trial should also be reviewed.

He said Sosma allows prosecutors to use protected witnesses who give evidence from outside the courtroom.

“The defence cannot conduct an effective cross-examination because the witness is not in court,” he added.

He said Sosma also allows the admission of sensitive and intercepted information as evidence, and takes precedence over other procedural legislation like the Criminal Procedure Code and the Evidence Act in the event of a conflict in law.