KUALA LUMPUR, May 5 — The High Court here will decide if five prosecution witnesses testifying against two local terrorism suspects can keep their identities secret and provide evidence anonymously.
Lead prosecutor Datuk Mohamad Hanafiah Zakaria applied today for the court to determine if a list of five witnesses could fall under the “protected witnesses” category.
He cited Section 14 of the Security Offences (Special Measures) Act 2012 (Sosma) — the law under which the two suspects Yazid Sufaat and Muhammad Hilmi Hasim are detained under.
High Court judge Datuk Mohd Azman Husin decided today to allow the bid for him to evaluate if the witnesses qualify as protected witnesses.
“Objections by the defendants’ lawyer is taken into account. But the court allows the deputy public prosecutor’s application,” he said.
The judge will conduct an inquiry “in camera”, meaning he will meet each of the five witnesses privately within these two days in the absence of the defendants and their lawyers.
If the prosecution witnesses are allowed to testify as protected witnesses with the two terrorism suspects not allowed to see or hear them, this will be the first time Sosma is used in such a manner since the contentious law was passed in 2012.
When met later, the defendants’ lead counsel Amer Hamzah Arshad said he will file a formal application to object to the use of protected witnesses, arguing that Sosma does not apply to his clients’ case.
“Because our position has always been that Sosma does not apply to Yazid Sufaat’s case because the charges and the evidence that we had so far does not disclose any offence which can be considered as a threat to the federation,” he said, arguing that the Federal Constitution’s Article 149 that allows for certain constitutional rights to be disregarded in the making of laws like Sosma does not apply to his clients’ case.
Critics have claimed that Sosma violates the constitutional rights of those detained under the law.
Beyond allowing prosecution witnesses to be only visible to the judge and not to be heard by defendants and their lawyers, Section 14 of Sosma also allows the judge to block any questions that may lead to the protected witnesses’ identification - including their name, age, occupation, race and address.
Former army captain Yazid is accused of knowingly encouraging terrorist acts with the intention to promote an ideological purpose that is intended to threaten the public in Syria, while his cafeteria assistant Muhammad Hilmi was charged with abetting him in doing so.
They were charged under Section 130G(a) of the Penal Code, which covers the offence of inciting and promoting the commission of a terrorist act and carries a maximum 30-year jail term and fine.
Yazid and Hilmi were also charged under Section 130KA of the Penal Code with being members of a terrorist group — Tanzim al-Qaeda Malaysia, with those convicted of this offence liable to a maximum life imprisonment and a fine.
The first offence was allegedly carried out between August 1 and October 20, 2012, while the second offence was allegedly committed between August 1 and February 7, 2013.