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Special Report
Last Updated: 02/11/2013
War on terrorism versus civil liberties of individuals: An analysis of the Malaysian Security Offences (Special Measures) Act 2012
Aingkaran Kugathasan

This article, written during the author's internship with the Malaysian Human Rights Commission, presents an analysis of the Malaysian "Special Measures" Act (2012), which compromises the civil liberties of individuals, through such powers as identifying anonymous authors on the Internet and intercepting personal communications, in an effort to ensure the security of the state against terrorist acts.


AP

The Security Offences (Special Measures) Act 2012 (SOSM) is a legislation providing for special measures relating to security offences. It was enacted pursuant to Article 149 of the Federal Constitution. This legislation repealed the Internal Security Act 1960.

In a nutshell, the legislation deals with the special manner of arrest, procedures for trial and its rules of evidence, as well as the handling of sensitive information or publication in respect of security offences.

Alongside the enactment of this legislation, major amendments to the Penal Code and Criminal Procedure Code were also made. It appears that the intention of these amendments is to make consistent the provisions of the Penal Code[1] and Criminal Procedure Code[2] with the Security Offences (Special Measures) Act 2012. The amendments to the Penal Code provide for new offences including activity detrimental to parliamentary democracy, sabotage, espionage and organized crime as well changes to the existing provisions on conspiracy. Amendments were made to the Criminal Procedure Code to bring in line the provisions of the Security Offences (Special Measures) Act 2012. These amendments principally touch on interception, definition of ‘communication’, search and seizure without warrant, attachment of an electronic monitoring device, meaning of an electronic monitoring device and access to computerized data.

Further, it is important to also note the amendment made to the Evidence Act 1950. The reasons for the amendments of the Evidence Act 1950 are to streamline the definition of “computer” with the definition of “computer” under the Computer Crimes Act 1997 (Section 3) and to introduce a new section 114A, which provides for a presumption of fact in publication in order to facilitate the identification and the proving of, amongst others, the identity of an anonymous person who is involved in publication through the internet. Two major concerns have been raised in relation section 114A. Firstly, section 114A may have the effect of shifting the burden of proof to the person accused or sued with respect to certain offences or wrongs. For instance, under the new section 124H of the Penal Code; it is an offence for any person to incite violence or counsel civil disobedience to law or to any lawful order by word of mouth or in print or by electronic means. Assuming a statement to that effect is found on any blog or website, the person who owns the blog or website would be presumed under section 114A to be the person who published the statement unless he is able to prove otherwise. But more important, by operation of section 114A, a major ingredient of the offence under section 124H would have been proven, unless the accused is able to rebut the presumption. The effect is to shift the burden from the prosecution to the accused. Secondly, section 114A may also have the effect of stifling expression over the Internet.

Aside from some issues highlighted below, and on a more positive note, the SOSM as it is a step towards dealing comprehensively with the threat of subversion which includes terrorism and it puts an end to the Internal Security Act 1960 which has been the subject of much negative discussion over the years.

a) Definition of Security Offence

Section 3 defines “security offences” to mean the offences specified in the First Schedule. Two categories of security offences are listed in the First Schedule. Both categories are already found in the Penal Code. The first category is “Offences against the State” which appears in Chapter VI of the Penal Code, that is, from Sections 121 to 130A. The second category is “Offences relating to Terrorism” which can be found in Chapter VI A of the Penal Code, that is, from Sections 130B to 130T.

“Offences against the State” includes waging or attempting to wage war against the Yang di-Pertuan Agong, Rulers or Yang di-Pertuan Negeri (“the Rulers”), hurting the Rulers, deposing the Rulers, overthrowing by criminal force the government of Malaysia or of any of the states, assaulting Members of Parliament or State Legislative Assemblymen in their exercise of their duties and activity detrimental to parliamentary democracy. All these offences share a common theme of force being used or intended to be used in order to obtain their objectives, which are to overthrow the government or to harm members of the different branches of government.

“Offences relating to terrorism” concern acts of “terrorist”, who is defined as a person who commits or attempts to commit any terrorist act or participates in or facilitates the commission of any terrorist act. Section 130B (2) of the Penal Code defines a “terrorist act” to mean “an act or threat of action within or beyond Malaysia” where -

§ act done or threat made with the intention of advancing a political, religious or ideological cause; and

§ act or threat is intended or may reasonably be regarded as being intended to

  1. intimidate the public or a section of it; or
  2. Influence or compel any government, whether in Malaysia or elsewhere, or any international organization to do or refrain from doing any act.

Under Section 130 B(3) an act or threat of action includes causing death, serious bodily injury, serious damage to property, use of firearms, interference with any computer or communication systems, interference with police, or actions which prejudice national security or public safety. The specific terrorist offences provided for in the Penal Code from Sections 130C to 130T include committing terrorist acts, providing explosives, recruiting persons to join terrorist groups, providing training or facilities to terrorists, giving of support, directing terrorist activities and criminal conspiracy.

b) Power of arrest and detention

Section 4 provides that a police officer of or above the rank of Superintendent of Police may detain a person for a maximum of 28 days[3] for the purpose of investigation. Alternatively, and in the event further detention is not necessary, the person may be released with an electronic monitoring device attached on him. To attach such a device, the police officer is required to inform the Public Prosecutor who will make an application to the Session Court for the person to be attached with the electronic device. The Court shall, as required by section 7, order the person to be attached with such device for a period as the Court may determine which shall not exceed the remainder of the period of detention allowed under the Act i.e. 28 days.

After the period of 28 days, a person must either be charged in the High Court or released or the electronic device be removed. Section 13 states that no bail shall be allowed to anyone who is charged with a security offence. In exceptional situation bail may be granted subject to the attachment of electronic device on the person if the person is under 18 years old or a woman or is a sick or an infirm person.

Section 30 outlines the applicable remand procedures for an accused of a security offence who is acquitted by the trial court. To sum up, this section allows the PP to make an oral application to the court for the accused to be remanded in prison; and the section also compels the Court, when such an application is made, to commit the accused to prison pending exhaustion of all appeals.

Observation:

The Act does not provide any interpretation for the term ‘electronic device.’ However, the new section 390C of the CPC specifies types of devices that may be used for the purpose of electronic monitoring. The Commission views the requirement of a court order before a monitoring device is attached on any “suspect” as a significant progress on the human rights front.

It is also worth noting that the 28-days period of detention is in line with the Commission’s recommendation as contained in the report Review of the Internal Security Act 1960.[4] However, giving such power in the hands of police authority may jeopardize the purpose of the legislation. The Commission recommends that the extension of the period of detention, beyond the initial period of 24-hours, be done through the judiciary to ensure that rights of the suspect or the detainee are protected.

c) Power to intercept communication

Section 6 of the Act allows the PP and police officer to intercept all communications likely to contain any information relating to the commission of a security offence.

Article 12 of UDHR denotes that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 17 of ICCPR also re-states the right to privacy and right to the protection of the law against such interference or attacks. The power given to police to intercept communication is a clear violation of human rights under aforesaid International Instruments.

Observation:

This power is most dangerous and certainly an invasion of privacy - without the knowledge of the affected individual, let alone with no stipulation as to the time frame that this invasion of privacy is permitted.

The risk is the government can now legally 'bug' phones, intercept, detain and open any postal article, intercept any message received or transmitted by any communication and intercept or listen any communication -- and it can be something done permanently. Section 6(1) of the Security Offences Special Provisions Act prescribes that the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of a security offence, may authorize any police officer—(a) to intercept, detain and open any postal article in the course of transmission by post; (b) to intercept any message transmitted or received by any communication; or (c) to intercept or listen to any conversation by any communication. Section 6(3) further states that notwithstanding Section 6(1), a police officer not below the rank of Superintendent of Police may— (a) intercept, detain and open any postal article in the course of transmission by post; (b) intercept any message transmitted or received by any communication; or (c) intercept or listen to any conversation by any communication. Although the Act does not specifically refer to social media, according to Section 6(7) the term ‘communication’ means a communication received or transmitted by post or a telegraphic, telephonic or other communication received or transmitted by electricity, magnetism or other means, which gives police the power to intercept a wide range of communications, including electronic communications.

All persons active in civil society, political parties, trade unions, etc - may now have their 'communications' permanently being monitored and intercepted. It is not possible to challenge these provisions in courts as it has been made legal to do so under the current legislation and the police have been given absolute authority to execute such activities. If the police use this power under section 2(b) by entering premises and installing these devices to psychologically instill 'fear' and attempt to silence activists and other public figures, the ruling party (the government) can simply abuse the power to repress the opposition parties or movements.

From a perusal of some of the grounds for detention of persons who have been detained under the ISA in the past, though there were no reported cases, it is obvious that the police have already been listening in on private conversations, bugging phones, monitoring emails, etc. With the enactment of this provision, the interception of communications is now legalized, which may give rise to more serious implications, including the invasion of privacy.

Worth comparing is the practice in the United States where its federal laws require that the order to intercept communication must be issued by a Judge.[5] Before any application for interception can be approved by a judge, it must have the authorization by a high Official of the Department of Justice. The laws also provide that a court order to intercept communication can be issued only for investigating certain stated crimes including crimes against national security. Other safeguards include the need for such applications to demonstrate ‘probable cause’ that such interception is necessary; and the application(s) must also show that the interception will be conducted in such a way as to "minimize the interception of communications not otherwise subject to interception", such as unrelated, irrelevant and non-criminal communications of the subjects or others not named in the application.[6] The court order is for a stated period of time after which renewals may be granted and must terminate when the authorized objectives are met.[7] Although these laws permit a lawful interception without a court order in exceptional circumstances, including conspiratorial activities characteristic of organized crimes, it is mandatory to make an application for a court order within a stated period after the interception has occurred or begins to occur. These provisions further affirm that the interception of communication shall be monitored by judicial.

While recognizing the necessity to provide the authority, in this case the Public Prosecutor and police, with law enforcement tools to respond to the evolving communications technology and that the interception and retention of some data for national security purposes may be justified, the Commission maintains that provision allowing interception and retention of communication without sufficient safeguards and oversight may violate the individual’s right to privacy. Accordingly the Commission is of the strong view that the interception of communications should only be done in pursuant to a court order, be for specific purposes and be allowed for a certain specified period of time.

d) Special Procedures Relating to Sensitive Information and Evidence

Part VI (sections 8-11) and Part VII (sections 17-26) respectively deal with special procedures relating to sensitive information to be used as evidence by the public prosecutor.

These two Parts have posed the greatest concerns, in particular the radical departures from the current rules of evidence. Part VII takes away any protection given to the accused by the Evidence Act 1950. The use of a summary of the evidence (as opposed to the evidence itself) and the lowering of the admissibility threshold will pose a serious impediment to a fair trial.

Above all, the radical departure from the ordinary rules of evidence may negatively impact on the accused’s right to a fair trial. Admission of statements made by any person who is dead or cannot be found or incapable of giving evidence would be unjust and unfair because such a person/witness cannot be cross-examined on his statement (Section 8). Allowing the use of testimony of a child of tender years, even if uncorroborated and not given under oath, and of accomplices and agents provocateur have been viewed as a threat to a fair trial.

Counter-terrorism laws, policies and decisions must not usurp the very rights and freedoms that the terrorists themselves are threatening.

THE UNITED NATION SECURITY COUNCIL RESOLUTION 1373 (UNSCR 1373)

The UNSCR 1373 is an impact of 9/11 attack in New York. The resolution recognizes the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism. It further dictates that all States shall:

a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;

b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;

c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;

d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;

e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;

f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;

g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.

Based on this resolution, many states argue that it is necessary to have such laws to adapt to the wider scope of measures covered by UNSCR 1373, and in order to be able to reach those persons who commit, attempt to commit, participate in or facilitate terrorist acts.

It is clear that the Security Offences (Special Measures) Act 2012 has been justified by the law enforcement authorities as a means to counter acts of terrorism at the expense of the civil liberties of individuals.



[1] Penal Code (Amendment) Act 2012 [Act A1430].

[2] Criminal Procedure Code (Amendment) (No. 2) Act 2012 [Act 1431].

[3] Section 4(11) states that the sub-section (5) which confers the police officer with the power to detain a person for a maximum of 28 days is subject to review every five years and shall cease to have effect unless a resolution to extend the operation of sub-section (5) is passed by the Parliament and Senate.

[4] See pp 88-90.

[5] In the US, interception of communications is mainly regulated by three statutes. Title III of the Omnibus Safe Streets and Crime Control Act 1968 (Title III) regulates interception of the contents of communications for law enforcement purposes. The Foreign Intelligence Surveillance Act of 1978 (FISA) regulates interception of the contents of communications of foreign powers and their agents within the US. The Pen Registers and Trap and Trace Devices chapter of Title 18 (the Pen/Trap statute) regulates interception of non-content information of communications.

[6] Thomas WONG, Regulation of Interception of Communications in Selected Jurisdictions, Legislative Council Secretariat, Hong Kong: 2005.

[7] A FISA order runs for an initial period of up to 90 days. If targeted against a foreign power, the order is effective for up to one year. If targeted against an agent of a foreign power, the order is effective for up to 120 days. Extensions of an order may be granted on the same basis as an original order, upon an application for an extension and new findings made in the same manner as required for an original order. A Title III order is effective for 30 days and may be renewed for another 30 days.


Aingkaran Kugathasan is a graduate of the International Law and Human Rights Master's Programme at the University for Peace of Costa Rica.
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