Published in The Sun Daily
27 April 2012
AS SOON as the Security Offences (Special Measures) Bill (SOSMA) was tabled and passed by the Lower House, serious doubt was raised concerning Pakatan Rakyat’s commitment to national security. Some of us were asked if a Pakatan-led government would be soft when dealing with terrorism.
Parliamentary democracy needs to be defended from terrorism, but we must also defend parliamentary democracy from abuses of executive power. Pakatan Rakyat stands for both.
Anti-terrorism laws become dangerous to democracy when they confer powers that are too broad, general and permanent to the executive. We cannot accept the scenario where counter-terrorism measures undermine the very democracy we are trying to protect.
Barisan Nasional is either unable or unwilling to acknowledge this problem. More likely they are acting cynically to preserve power by falsely demonising their opponents as threats to national security.
The demonisation and persecution of opposition politicians and activists, an action admitted to by the BN government was exactly the problem with the Internal Security Act (ISA).
The problem with SOSMA and the amendments to the Penal Code, and Criminal Procedure Code is that they re-bottle the ISA. Indefinite detention without trial via the minister has been replaced with the option of indefinite remand until the attorney-general chooses to file an appeal (as per Section 30, SOSMA).
SOSMA doesn’t address terrorism specifically, instead it uses the broad concept of “security offences”. There is too much scope for deliberate abuse of this broad definition. A tighter definition is needed to prevent abuse.
The Bar has recommended using the definition of the UN Convention for the Suppression of the Financing of Terrorism. The definition confines terrorist acts to those specifically intended to cause death or serious bodily injury for the purpose of influencing government actions. Other UN bodies recommend provisions covering hostage-taking and acts intended to cause a state of terror among the general population.
Any use of counter-terrorism powers against those who are not genuinely terrorists must be prohibited. If any other form of criminal activity is at issue then they should be charged according to civil laws consistent with human rights standards.
The reforms that Malaysia needs on counter-terrorism should be consistent with the principle of normalcy, meaning they should not be beyond oversight and review. If compelling reasons require the creation and enforcement of specific powers necessary to combat terrorism, they should be recognised as a unique exception to customary legal constraint and be subject to sunset clauses and regular review by independent monitors.
Additionally, regular review and the use of sunset clauses are best practices helping to ensure that special powers relating to the countering of terrorism are effective and continue to be required, and to help avoid the “normalisation” or de facto permanent existence of extraordinary measures. The latter is what we had under ISA and have once again under SOSMA.
Our laws and policies, including those governing counter-terrorism should be consistent with international human rights standards and the principles of check and balance. SOSMA and related laws as well as Article 149 of the Federal Constitution should be revised or repealed in light of these criteria.
Police should have to apply for exceptional anti-terror powers versus particular, specified terrorist groups, and these should expire after a given period, unless renewed by a bi-partisan parliamentary committee.
A precondition for effective policing of terrorism is an intelligence branch that is focused on tightly-defined terrorism rather than the political opposition, civil society, the arts, or legitimate dissent.
It was unacceptable that we were expected to pass SOSMA and other amendments without being presented with an up-to-date credible threat assessment from our intelligence agencies.
As such, it is disappointing that SOSMA was passed without as much as a consideration to consider the formation of a bipartisan parliamentary committee to monitor counter-terrorism measures and to prevent abuse of any new laws.
All of Malaysia’s political parties are invested in national security and are committed to parliamentary democracy. Oversight of national security should be a shared responsibility especially given the history of abuse of exceptional powers by government.
I accept that certain aspects of the enforcement of this law would have to be treated with secrecy. A parliamentary committee that reviews the confidential information would help in convincing doubting public that the authorities are withholding information for good reasons.
Malaysia’s previous counter-terrorism policy and laws were a patchwork arrangement which resulted from the unwillingness of the government and British to treat the Emergency as a war. An armed insurgency should have been dealt with via the provisions of the 1949 Geneva Conventions.
National security should be run according to international best practice, and counter-insurgency should be distinguished from counter-terrorism. The two can overlap but we should have different measures to deal with each.
Pakatan Rakyat does not want Malaysia to be a breeding ground for terrorists.
Preventing terrorism should not be understood simply as an “eleventh hour” action for the police. If there is domestic terrorism we need the help of our intelligence services to determine the reasons for it. Government then needs to develop policies and measures to address the root causes.
If the causes involve fundamental failures of government policy, state repression, or the lack of democratic space then government needs to take the responsibility to change its ways provided it is consistent with the constitution and human rights standards.
If the causes are ideologies of extremism incompatible with parliamentary democracy then such organisations or individuals should feel the full force of the law consistent with the principles outlined above.
Damage suffered by victims of terrorism or damage via acts committed in the name of countering terrorism should be compensated through funds from the government.
Finally, anyone arrested by the police should be protected by the provisions in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In order to be tough on terrorism we need precise instruments that will address genuine threats while ensuring that parliamentary democracy retains its vibrancy, health and commitment to the highest standards of justice.
What we have once again with SOSMA is wide-ranging permanent powers open to executive abuse. Malaysia deserves the best and Pakatan Rakyat will continue to fight for this goal.
