MPU Module - Rights in Malaysia Assignment

1. Act 747: What It Is and How It Affects the
Fundamental Principles of the Malaysian
Constitution.

2. A first look at SOSMA:
What are the special characteristics?

3.  “An Act to provide for special measures relating to security
offences for the purpose of maintaining public order and
security and for connected matters.”
 Arrest for investigation purposes only.
 Chapter VI & VIA of the Penal Code
 The basis of arrest is vague and open for interpretation.

4.  Chapter IV: Offenses Against the State
 Section 121 – 130A
 Chapter IVA (2003): Offenses Relating to Terrorism
 Section 130B – 130ZC

5.  SOSMA 2012 overriding other laws, especially the Federal
Constitution:
 Criminal Procedure Code (Section 117, 51A, and 264)
 SOSMA Section 4(10), 8(1), 14(2)
 Evidence Act 1950
 SOSMA Section 17
 The Federal Constitution (Article 5 and 9)
 SOSMA Section 4(10), 5(3), 6(6)

6. Criminal Procedure Code SOSMA 2012
Section 117:
- Must produce to court within 24
hours of arrest.
- Can be remanded for max 14
days.
Section 4:
- Can be detained for 24 hours.
- Can be extended to max 28
days.
Section 264:
- Evidence must be taken in the
presence of the accused or his
advocate.
Section 14:
- The identity of the witness can
be hidden (“protected”) if
requested.

7.  Arresting Without Warrant:
 “A police officer”, “without warrant”, “reason to believe”
– Section 4(1)
 Extension of Detention:
 Detained for 24 hours.
– Section 4(4)
 Superintendent of police (and above) may extend up to 28 days
– Section 4(5)

8.  Consultation Delay:
 Not more than 48 hours.
– Section 5(2)
 Intercept Communication:
 Police Officer may act without authorisation of the Public
Prosecutor.
– Section 6(3) & (4)
 Amendment (2015): “Any other persons”

10.  Commissioners:
 Inspector-General of police
 Deputy General of police
 Senior Commissioner of police
 Deputy Commissioner of
police
 Senior Assistant
Commissioner of police
 Assistant Commissioner of
police
 Superintendents
 Superintendent of police
_____________________________
 Deputy Superintendent of police
 Assistant Superintendent of
police
 Inspector of police
 Probationary Inspector of police

11. Discrepancies of duties.

12.  Power to Arrest:
 The power to arrest has been given to the police instead of the
Attorney General.
 Ordinary Procedure:
 Criminal Procedure Code – Section 38 & Section 40
 The Judiciary (“Court”) releases the Warrant – Section 38
 The Police takes action according to the Warrant – Section 40
 Public Prosecutor’s Power:
 The PP can apply for the person to be detained.
 The court has no say in the matter.

13.  The police Force
 Power is vested in the YDPA
 Section 40(1), Federal Constitution
 The YDPA “shall act upon the advice given by.. (the prime
minister)”
 The one giving commands?

14. The SOSMA’s Violations.

15.  Article 4(1)
 The Federal Constitution is supposed to be the supreme law.
 SOSMA is inconsistent, but not void.

16.  Article 5(1)
 A person has a right to personal liberty
 SOSMA: A person can be monitored with an electronic device.
 Article 5(3)
 A person has the right for legal consultation
 SOSMA: Can be delayed up to 48 hours. (No chance to consult
before detention is extended)
 Article 5(4)
 A person should be brought to court within 24 hours of his arrest
 SOSMA: Can be detained up to 28 day solely for investigation
purposes

17.  Article 9(2)
 Every citizen has the right to move freely within Malaysia
 SOSMA: The person can be detained up to 28 days for just for
investigation purposes only.

18. How the Federal Constitution contradicts itself.

19.  The definition of the Rule of Law varies between Nations.
 Basic function:
 To protect the basic rights of the citizens to being abused by the
government.

20.  Dicey’s Rule #1:
 No one can be punished except for a distinct breach of law.
 All law must be open and clear.
 Every person is innocent until proven guilty.
 The vague interpretation of the reasons to arrest under
SOSMA is undefined and unclear.
 The actions taken under SOSMA implies that a person is
guilty until proven innocent.

21.  Adjudication should be fair
 Section 264, Criminal Procedure Code:
 Evidence must be taken in the presence of the accused.
 Section 14, SOSMA:
 Evidence can be taken without the presence of the accused.

22. The ambiguity and uncertainties.

23.  October 8, 2015
 Matthias Chang was arrested while visiting his client. (Sept 23)
 October 12, 2015
 The Magistrate’s Court charged him of Section 124(L) and Section
34 of the Penal Code – “sabotaging the country's banking and
financial services”
 They appealed to the High Court to challenge the decision.
 October 19, 2015
 The High Court referred 3 questions on the constitutionality of the
arrest to the Federal Court.

24.  1) Does the charge against the accused persons under Section
124L of the Penal Code fall outside the constitutional ambit of
SOSMA 2012, pursuant to the provisions of Article 149(1) of
the Federal Constitution.
 Vagueness of the law
 Open to interpretations
 Undefined

25.  2) If the answer to Question 1 is in the affirmative, do the
accused persons have the right to be released on bail
forthwith?
 3) If the answer to Question 1 is in the negative, should the
trial of the charge against the accused persons be conducted in
the Sessions Court taking into account the sentencing
provisions under section 124L of the Penal Code?

26.  October 20, 2015
 Bail denied.
 November 3, 2015
 The Federal Court ordered the High Court to answer the 3
questions referred.
 November 18, 2015
 High Court found that SOSMA cannot be used(not intend to cover
cases involving banking and financial service), granted bail.