KUALA LUMPUR, Feb 19 — Using an anti-terrorism law to rein in racial and religious tension would be an “overkill” and even “unlawful”, lawyers said as they warned the move may deny a person from getting a fair trial.
Resorting to the Security Offences (Special Measures) Act 2012 (Sosma) would be an “overkill” as the law is meant for situations where there are real and immediate danger such as “armed invasion or riots or racial clashes”, said Eric Paulsen, the co-founder of legal aid group, Lawyers for Liberty (LFL).
“Sosma should be used as a last resort when it involves a real threat to national security,” he told The Malay Mail Online when contacted.
Paulsen argued that Sosma contains fewer safeguards for those charged; noting that the accused person would not be allowed bail besides facing “extremely harsh” punishment that would not be proportionate to the crime committed.
“Once you invoke Sosma, the normal process of fair trial is put on hold,” he said.
He said the country’s existing laws were sufficient for the police’s use, citing as example Sections 295 to 298A of the Penal Code, for offences concerning religion, Sections 503 to 505 of the same law for racist and provocative speeches, as well as Section 436 for firebombing offences.
Last Sunday, federal police chief Tan Sri Khalid Abu Bakar warned Malaysians that they could face the 2012 security law if they were not careful in making statements that touched on racial and religious sensitivities as such comments may cause chaos.
Another civil rights lawyer Nizam Bashir said Sosma should be used only when there is an “elevated sense of concern of security”.
Like Paulsen, Nizam said the Penal Code is sufficient to counter attempts to “heighten” racial and religious tension.
Though he acknowledged that Sosma had more checks-and-balance to curb possible abuses compared to the Internal Security Act 1960 it replaced, Nizam said the 2012 law was still inappropriate for such cases.
“The procedural safeguards to ensure a fair trial are not there,” he said.
Syahredzan Johan said the police would be overstepping the powers given to them under the Sosma if the law was used against alleged perpetrators of racial and religious tension.
The civil liberties lawyer pointed out that Sosma can only be used for “security offences”, with the law defining it to be offences found under Chapter IV and IVA of the Penal Code.
These two chapters are on offences against the government such as waging war against the country’s ruler Yang Di-Pertuan Agong and activities designed to overthrow or undermine parliamentary democracy by violent or unconstitutional methods, as well as terrorism, Syahredzan said.
Unlike the Penal Code, the lawyer said Sosma does not prescribe the action to be taken for offences of “fanning racial and religious tensions, insulting religious feelings and causing disharmony, disunity or feelings of enmity, hatred or ill will between religious communities”.
Such offences are instead provided for in Chapter VIII and Chapter XV of the Penal Code, which involves offences against public tranquility and offences relating to religion respectively.
“So the use of Sosma against those alleged to have created racial and religious tension would be unlawful and ultra vires the Act itself,” he said.
He added that another statute, the Criminal Procedure Code (CPC) also adequately empowered the police to clamp down on religious provocateurs.
All three lawyers pointed to the Federal Constitution as the ultimate safeguard for Malaysians to fall back on if Sosma were to be used against them for allegedly causing interfaith tension.
Nizam singled out the Federal Constitution’s Article 10 and Article 11 — which guarantees the right to freedom of speech and religious freedom respectively — as provisions which could be used to challenge the use of Sosma.
He said that while freedom of speech must also be balanced against the need for public order, but also said that the authorities “seem to have a selective view on who should be prosecuted”.
Paulsen urged the police to go after individuals and groups that have committed “clear open acts” that would likely cause racial and religious tension, listing as examples the Malay rights group Perkasa, as well as other Muslim groups that raised the May 13, 1969 racial riots during a recent protest against DAP MP Teresa Kok.
“We would urge the authorities to concentrate on real policing and crime prevention rather than using valuable resources to police blogs and Facebook and Twitter,” he added.