Terrorism Laws in Malaysia: The Continuing Case for SOSMA and POTA

This article is part of a series that explores the threat posed by the Islamic State (IS) to Asia and efforts that the governments of the region have taken and could/should take to respond to it. Read More ...

Calls for the abolishment of terrorism laws have resurfaced in Malaysia recently. The Malaysian Bar and human rights advocates have referred to current terrorism laws as “unjust,” “regressive,” violations of basic human rights and laws that need to be abolished immediately.[1]

Yet, despite the physical loss of the Islamic State (IS) caliphate, the terrorism threat still looms in the region owing to IS’ ideology. In March 2021, the Malaysian police revealed that it had foiled a plot by an IS sympathizer to kill the Malaysian Prime Minister.[2] In the same month, Indonesia witnessed two terrorist attacks within the span of three days; a suicide bombing at a Cathedral in South Sulawesi and a gun attack on the police headquarters in Jakarta by IS-affiliated individuals. Thus, as the terror threat in Malaysia and the region continues to exist, the call for the abolishment of the current terrorism laws needs to be dealt with cautiously.

Malaysia has two primary laws that deal with terrorism, namely, the Security Offences (Special Measures) Act 2012 (SOSMA) and the Prevention of Terrorism Act 2015 (POTA). SOSMA was enacted as a replacement to the Internal Security Act 1960 (ISA) whilst POTA was enacted in response to the increasing threat of terrorism corresponding with the rise of the Islamic State (IS) terror group.

In 2018, one of the major promises of the Pakatan Harapan (PH) government manifesto before taking power was the abolishment of “draconian provisions in oppressive laws,” including SOSMA and POTA.[3] Whilst select committees were set up to review these laws, no move was taken to amend or abolish these laws, which remain intact. Terrorism laws came into the limelight again with the arrests of more than a dozen individuals allegedly linked to the Liberation Tigers of Tamil Eelam (LTTE) group under SOSMA in 2019.[4] The arrests received wide public attention with more calls for its abolition.

On the other hand, the security services, in particular the Royal Malaysia Police, have argued that these laws are vital in protecting the national security interests of the country and to insulate it against terrorist threats.[5] Till date, the police have stated that more than 519 people have been arrested under the acts and the security services have been able to foil more than 25 terror plots since 2013.[6]

The Mechanism of SOSMA and POTA

SOSMA is categorized as a procedural law whilst POTA is a detention law. As the name suggests, SOSMA is a law which governs the procedures relating to the arrest, temporary detention, investigation and trial of an individual in place of the Criminal Procedure Code (CPC) in cases relating to offenses against the state, offences relating to terrorism, organised crime and human trafficking. In other words, for the above-mentioned offenses, SOSMA is used in place of the CPC.

One of the main differences between SOSMA and the CPC is the detention period pending investigation. An individual may be detained for up to 28 days after the initial 24 hours following arrest under SOSMA compared to the usual 14 days for other criminal offences under the CPC.[7] In cases where the police feel that an individual may be released before the 28 days have elapsed, SOSMA allows the police to attach an electronic monitoring device (EMD) to the individual should they feel he or she needs to be monitored or assist in further investigations, for a period not exceeding the remaining detention period.[8]

The detention under SOSMA is purely for the purposes of investigation and is known as pre-charge detention or detention pending investigation.[9] Pre-charge detention is the period whereby an individual may be detained in between arrest and filing of charges or release and serves the purposes of investigation, namely for the police to secure sufficient admissible evidence.[10] This is different from detention under the repealed ISA which is based purely on the judgement of the police with regards to the activities of the individual and is not necessarily for investigation purposes.[11]

In cases where the individual has been detained under SOSMA and the police have insufficient evidence to prosecute the individual but still have the grounds to believe that the individual is involved in terrorist activity, the individual may be re-arrested under POTA. This is an important tool, as whilst the person may be known to be involved in terrorist activity, the gathering of prosecutable evidence may be a challenge due to the complex nature of terrorism offenses.

Under POTA, an individual may be detained for up to 60 days pending investigation and assessments made by the public prosecutor and an investigating officer into the individual’s involvement in terrorist activity.[12] Following an initial investigation and submission of an investigation report to the Public Prosecutor, if sufficient evidence against the individual exists, the public prosecutor may call for an inquiry to be held under Section 4(2) within the 60 day period.[13] The inquiry is carried out by an Inquiry Officer who would then submit an inquiry report to the Prevention of Terrorism Board (POTB) stating whether there are reasonable grounds to believe the individual is involved in terrorist activities.

The POTB consists of five to eight members who are comprised mainly of legal experts and police officers appointed by the King.[14] The POTB, upon consideration of the initial investigation report and inquiry report, would then decide if the individual should be given a detention order (DO) of up to 2 years, a restriction order (RO) of up to 5 years or be released.[15] Individuals given the DO will be put under state-sanctioned deradicalization programs whilst those under RO will have their movements restricted to a particular district or state. Those placed under RO will be attached with an EMD. The POTB has the power to suspend the detention or restriction order at any time[16] and each case will be reviewed 6 months before the expiry of either DO or RO after considering assessments by the police, prisons department and Ministry of Home Affairs. A DO or RO may be renewed for a period of up to 2 or 5 years, respectively.

The POTA is different from the ISA as under the latter, the absolute powers to order the arrest, detention, and release of an individual were held solely by a lone individual, namely, the Home Minister.[17] Under POTA, no absolute authority is given to any individual and each case goes through a number of thorough assessments first by an Inquiry Officer and then the POTB consisting of a number of individuals who would decide on the outcome.

Common Misconceptions

Both SOSMA and POTA have been referred to as “detention without trial” laws.[18] This is, in fact, inaccurate. Section 12 of SOSMA clearly states that all security offenses under the Act are to be tried in the High Court.[19] In a 2018 interview, former head of the Malaysian Special Branch Counter-Terrorism Division, Ayob Khan, stated that between 2013-2018, out of 420 suspects who were arrested under SOSMA, 185 were charged in court and 148 were convicted.[20] A landmark example would be the case of the 2016 Movida Pub bombers, Imam Wahyudin Karjono and Jonius Indie, who were arrested under SOSMA and eventually tried in court and sentenced to 25 years imprisonment each.[21]

Both SOSMA and POTA are also often viewed as modern manifestations of the infamous ISA. The legacy of the ISA continues to cast a dark shadow, particularly, among activists who point to its usage in the arrest of 106 individuals in the late 1980s who were believed to be human rights activists and political opponents of the then ruling government in an operation called Ops Lalang.[22] However, section 4(3) of both SOSMA and POTA clearly state that no person shall be arrested or detained “solely for his political belief or political activity.”[23]

Another point of contention is the period of detention under SOSMA and POTA. Some have argued that the period of 28 and 60 days respectively is too long and unnecessary. However, the longer period of detention, compared to 14 days for normal crimes under the CPC, is due to the more complex nature of terrorism investigations. Terrorism investigations involve sieving through voluminous amounts of materials, data from cellular and other online activity, multiple false identities, forensic science delays and a large number of suspects which often take more time than usual.[24] For example, the Movida Pub attack in 2016 involved the arrest of more than 40 suspects and the police sieving through evidence from laptops, cellphones and others from each of them.[25]

Both Acts have also been criticized for not allowing bail and legal representation. Under Section 13 of SOSMA, no bail shall be granted to a person unless he or she is below 18 years of age; a woman; or sick and not involved in terrorism offences.[26] In cases of terrorism, the reason for this is to prevent the individual from plotting attacks and/or reconnecting with other individuals who may facilitate any terrorist activity after obtaining bail.[27] Legal representation of the individual is not allowed for the first 48 hours of arrest under SOSMA to prevent interference of the investigation, tampering of evidence and witnesses which is not uncommon among criminal cases.

SOSMA and POTA have also been alleged to be laws which deny the right of an individual to a fair trial and an opportunity to defend him or herself.[28] This is again an inaccurate statement. In fact, individuals arrested under both Acts have the right to defend themselves at multiple points. As mentioned previously, all individuals who are arrested under SOSMA have to be either charged in court where the individual will have the opportunity to defend him or herself, or released if there are no sufficient grounds to charge him or her.

As for POTA, an individual has three avenues to defend him or herself. Firstly, the individual can make an application for a habeas corpus (an appeal to the High Court challenging unlawful detention) at the point of arrest. Secondly, a lawyer on behalf of the individual in custody, or the individual himself, may write a formal letter to the POTB challenging his or her detention under POTA which the POTB will have to examine and consider. Thirdly, having exhausted the first two options, under Section 13(9) of POTA, an individual has the right to challenge an order of detention by the POTB by seeking a representation to an Advisory Board who will then review the decision of the POTB.[29] Upon review, the Advisory Board may recommend to the King for the release of the individual. All decisions of the POTB are subject to review by the High Court under Section 13(10) of POTA.[30]

Preventive Action

Preventive action and detention laws such as SOSMA and POTA allow the security services to carry out preventive operations and act before a heinous crime such as a terrorist attack is committed. Terrorist attacks, unlike other criminal offenses, often come at a great loss of lives, damage to critical infrastructure, the jeopardy of national security and a great cost to the country. In other words, there is just too much at stake in terrorism cases and the police cannot afford to act after an attack has occurred.

Terrorist plots also often involve a complex network of people and clandestine activity, some of which are not against the laws until the execution of a plot, which warrants the need for preventive detention. A case in point is the manufacture of explosives.

The procurement of chemicals in modern explosives involve the use of dual-use chemicals i.e. chemicals which have legitimate commercial purposes. These are often not banned by legislation in Malaysia. Explosives such as Triacetone Triperoxide (commonly known as TATP or ‘Mother of Satan’) which have been popular explosives of choice by IS militants and used in attacks in Paris (2015), Brussels (2016), Manchester Arena (2017), Surabaya (2018) and Jolo (2019 & 2020) involve the use of commercially available chemicals such as hydrogen peroxide and acetone, that can be found in common household items such as hair bleach, medical antiseptics and nail polish removers. These can be obtained easily in hardware stores, supermarkets, or online e-commerce sites. In 2019, two Malaysian militants, Muhammad Syazani and Muhammad Nurul Amin, had successfully manufactured and tested TATP bombs in Malaysia, the first such event in the country.[31]

These precursor chemicals are not banned by the Explosives Act 1957 or the Corrosive and Explosive Substances and Offensive Weapons Act 1958.[32] The former only bans chemicals such as gunpowder, nitro-glycerine, fulminates of mercury and other explosive metals while the latter bans a number of acids but discounts the use of dual-use chemicals. Apart from dual-use chemicals, bomb-making manuals that have been disseminated in the past, and have resurged of late on pro-Al-Qaeda and IS media channels, have outlined steps of manufacturing lethal bombs using simple common household items such as a metal pipe or pressure cooker, matchsticks, decorative lamps, batteries, wires and a clock. This was the same recipe that was used by the Tsarnaev brothers in the 2013 Boston Marathon Bombing.[33]

Thus, preventive detention laws are crucial in interdicting individuals who may be procuring these substances, which is theoretically not against the law, for nefarious purposes, as they are dual-use and common household items. Examples include the recent cases in Singapore of a 16-year old boy and a 20-year old man who had plotted to carry out attacks on Muslims and Jews, respectively.[34] Both had procured knives and had carried out detailed planning of the attacks. The Singaporean authorities were able to interdict their plans and arrest them in time due to the availability of preventive detention laws.

Possibility for Reforms?

A feature of SOSMA that may well be open to reform is the detention of an individual pending exhaustion of all legal processes. Under Section 30, an individual may be remanded in prison despite being acquitted if the Public Prosecutor deems it necessary to file an appeal against his or her acquittal.[35] The individual can be detained for a period up to a year or more until all appeals are disposed. This appears to be unfair as a person who is acquitted of any criminal charges may still be held in remand for an extended period of time. Thus, an individual acquitted of charges should be released as per normal procedure.

Another feature that may be open to reform is the point of authority determining the extension of the detention period pending investigation, which should be in the hands of a magistrate as per the CPC.[36] However, under SOSMA, a police officer of, or above, the rank of Superintendent may extend the period of detention of an individual for up to 28 days.[37] To avoid biases in the determination of the detention period, the powers to determine/extend the detention period pending investigations should be vested with the magistrate.

As for POTA, a possible reform that could be considered is reducing the remand period of 60 days of the individual concerned. While an extended period of remand is warranted for terrorism cases, a period of 60 days can be reduced in certain cases. The remand period should be considered on a case by case basis, to be determined by a magistrate, depending on the complexity of the case and procurement of evidence. The stipulated period of remand pending inquiry may be reduced in less complex cases where evidence has been procured. The government could also consider increasing the number of inquiry officers at hand. This would, in turn, allow a larger number of cases to be handled efficiently reducing time lags, and thus the remand period of individuals.

In addition, apart from legal experts, police officers and counter-terrorism practitioners, the government should consider incorporating academics/terrorism researchers to the POTB who may provide a theoretical angle and academic expertise in addition to the on-the-ground, operational expertise provided by the former in decision-making and analyses of cases. This could also provide an avenue for collaboration between government and academia.

Conclusion

Preventive action and detention laws such as SOSMA and POTA have been crucial in stemming and controlling the growth of terrorist elements in the country and remain a crucial part of Malaysia’s national security apparatus. The reason why they have garnered much attention and controversy is due to the infamous legacy that past preventive detention laws have had with regards to political detention and misuse which, at most times, is not the fault of the laws per se. Thus, while these instruments must be maintained to address the looming terrorism threat facing the country, they must be employed with effective checks and balances to ensure they are not abused and misused.