The Security Offences (Special Measures) Act 2012 (Sosma) is "more dangerous" than the Internal Security Act 1960 (ISA) that it replaces, says Gerakan Mansuhkan ISA chairperson Syed Ibrahim Syed Noh.
This is because superficially, Sosma appears like an improvement over the ISA - but it is definitely not so.
Members of the public may see the 60-day period police can detain suspects reduced to 28 days, access to lawyers and the court and the fixing of an electronic tracking device on released suspects as improvements, he said.
"These look good, but Sosma hides some unhealthy things," Syed Ibrahim told a forum in Kuala Lumpur last night.
Among his complaints are that once the court acquits a person of an offence under Sosma, the public prosecutor can make an oral application to the court to detain the person further until all avenues of appeal have been exhausted.
Syed Ibrahim said this could be done without producing any further evidence and the court cannot deny the prosecutor's request.
Another panellist, human rights lawyer Edmund Bon ( left ), warned that Sosma has provisions to allow what he said would amount to secret trails.
These provisions allow the government and the attorney-general (AG) to withhold information deemed sensitive. Also, court trials can be held in camera (behind closed doors).
"That is very disconcerting because we do not know the criteria, and knowing how the government and the public prosecutors have acted so many times, we are very concerned whether a person charged can be properly defended in court," Bon said.
He said lawyers for the defence in criminal cases were already handicapped by the absence of pre-trial disclosure of the evidence gathered, whether such evidence would be beneficial or damaging to their clients.
"Lawyers defending an accused (in a criminal case) won't know what the case is about until the day they step into court. On top of that, we now have these problems with sensitive information and secret trials," Bon said
Syed Ibrahim also pointed out although under Sosma the home minister would no longer have the power to detain people, he would still be able to do it through the public prosecutor, who had to answer to the minister.
Another issue, Syed Ibrahim said, was that "security offence" was not properly defined. Further, the provision that no person shall be held for his political beliefs was not a sufficient safeguard.
"It is all political when it comes to the definition of ‘security offences', since it is too broad," he said.
As an example, he said, was the detention of hundreds of Jemaah Islamiah members "as scapegoats" following the 9/11 attacks - merely to show that Malaysia was supporting US policy by combating terrorism.
Use of electronic monitoring devices
Syed Ibrahim said Sosma also provided for communications interception and the use of electronic monitoring devices by the authorities.
Bon said the use of electronic monitoring devices is a breach of fundamental human rights, though these may be used on those who have been convicted.
On the issue of the 28-day detention period allowed the police, Bon said this should not be at the absolute discretion of the police but, as a safeguard, should be under the purview of the court.
"All over the world where there is legislation similar to this, but it is the court that decides on detention, not the police.
"So the 60-day detention problem with the ISA is going to be the same problem under Sosma, even though it will be for 28 days, since detention is at the discretion of the police.
"From our research and the documentation, the most dangerous period is the period under police custody. That is when there are a lot of problems, from access to legal counsel to torture and forced confessions," Bon said.
Under the ISA, a person can be held for up to 60 days for police investigation, after which the home minister can sign a detention order to hold the person for a period of up to two years, which can be renewed if deemed necessary.
Under Sosma, the police can detain a person for up to 28 days, after which the person must be released or brought before a court.