Can controversial law SOSMA be used against GISBH members for arrest without warrant & detention for up to 28 days?

The Royal Malaysia Police (PDRM) recently unearthed shocking revelations involving the Global Ikhwan Service and Business Holdings (GISBH) organisation which enraged Malaysians. These include allegations of sexual and physical abuse of children at their welfare homes, human trafficking, promoting Islamic deviancy and more.

In one of PDRM’s latest updates on the investigations into the organisation, Inspector-General of Police (IGP) Tan Sri Razarudin Husain revealed that hundreds of GISBH members have been arrested for various offences. Out of the total, 127 individuals have been released on bail after their remand period ended, while another 24 individuals’ remands have been extended for 4 days under Section 12 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, with PDRM advising them to approach the police if they require any welfare support.

Interestingly, Razarudin announced that PDRM re-arrested 34 GISBH members using the controversial Security Offences (Special Measures) Act 2012, more commonly known as SOSMA.

So, what are the requirements for SOSMA to be utilised in this case? Join us as we break it all down below.

Security Offences (Special Measures) Act 2012

Introduced in 2012 by then Prime Minister Datuk Seri Najib Razak, SOSMA is meant to provide for special measures relating to security offences for the purpose of maintaining public order and security for connected matters. Among others, the Act allows the police to arrest and detain any person whom they have reasons to believe to be involved in security offences without a warrant.

This is prescribed under Section 4(1) of the Act, with Section 4 overall outlining the circumstances in which the power of arrest and detention is applicable.

Specifically, it is prescribed that:

A person arrested under SOSMA shall be informed as soon as may be of the grounds of his arrest

No person shall be arrested and detained solely for their political belief or political activity

Moreover, Section 4(4) of the Act allows for a police officer of the rank of Superintendent of Police or above to extend the period of detention for a period of not more than 28 days for the purpose of investigation. Additionally, the police officer must submit the investigation papers to the Public Prosecutor a week before the expiry period of detention.

However, If the police officer believes that further detention is not necessary, the person may be released but an electronic monitoring device may be attached to the person. If they intend to do so, the police officer shall submit a report of the investigation to the Public Prosecutor and upon receipt of the report, the latter may apply to the Court for the person to be attached to the electronic monitoring device for a period not exceeding the remainder of the period of detention.

Besides that, under Section 5 of the Act, the police officer conducting the investigation shall also immediately notify the suspect’s next of kin of their arrest and detention. They shall also allow the suspect to consult a legal practitioner of their choice, though a police officer not below the rank of Superintendent of Police may authorise a delay of not more than 48 hours for the consultation if they are of the view that:

There are reasonable grounds for believing that the exercise of that right will interfere with evidence connected to security offence

It will lead to harm to another

It will lead to the alerting of other persons suspected of having committed such an offence but who are not yet arrested

It will hinder the recovery of property obtained as a result of such an offence

So, can PDRM use SOSMA on GISBH members?

This is dependent on the under which provisions of the law that the suspects are being investigated,, as SOSMA is only applicable to what the Act deems as “security offences”.

Accordingly, Section 3 of the Act defines “security offences” as offences specified in its First Schedule below:

Under the Penal Code, the specific provisions of law to which SOSMA is applicable as per its First Schedule included all offences against the State, offences relating to terrorism and organised crime.

Meanwhile, the provisions under the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 are offences related to the smuggling of migrants.

Hence, should the 34 members be re-arrested under any of the applicable provisions listed above, they can be arrested without a warrant, with detention of up to 28 days. PDRM must also adhere to all the procedures prescribed by SOSMA as we’ve elaborated above, so that no abuse of the suspects’ rights would occur.

Furthermore, failure to safeguard the rights of the suspects from being abused may expose the authorities and the Government of Malaysia to civil claim under the Tort of False Imprisonment and/or Writ of Habeas Corpus.

Moving forward, let’s hope that the alleged offences by GISBH and its members are thoroughly investigated and that offenders face the full brunt of the law. In the meantime, it’s important for everyone to remain calm and let the law take its course.

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