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At least three minors were recently arrested under the Security Offences (Special Measures) Act, or SOSMA. As many of you are aware, SOSMA is a controversial procedural law, which allows for detention without judicial oversight for up to 28 days, which is why the use of SOSMA against children in this recent case has raised serious concerns. On this episode of #ConsiderThis Melisa Idris speaks with criminal lawyer Shashi Devan, one of the directors of Suara Rakyat Malaysia (SUARAM).
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00:10hello and good evening i'm melissa idris welcome to consider this this is the show where we want
00:16you to consider and then reconsider what you know of the news of the day at least three minors were
00:21recently arrested under the security offenses special measures act or sosma as many of you are
00:27aware sosma is that controversial procedural law which allows for detention without judicial oversight
00:34for up to 28 days which is why the use of sosma against children in this recent case has raised
00:42serious concerns joining me on the show to discuss his father is criminal lawyer shashi devin who is
00:48one of the directors of suara raya malaysia swaram shashi thank you so much for being on the show
00:53with me today can you um what what can you tell us about the case the the how and the
01:00why um behind
01:02why these miners were arrested under sosma sure certainly good doing melissa thank you for having
01:09me uh uh here now the case involved three miners uh aged uh between 16 and 17 and they were
01:18all three of
01:18them were arrested on february the 15th and detained under sosma for 26 days only to be released two
01:26days shy of the 28-day detention period now of course this 28-day detention period is without judicial
01:34oversight uh and it's a procedural law now for the two cases that swaram managed uh to get hold of
01:43family
01:44members uh they were taken at their homes uh during a raid at dawn so these were what we uh
01:52commonly
01:52refer to as the dawn raids right so and they actually conducted these dawn raids on at least two out
01:59of
01:59three uh children that we know of now they were held in solitary confinement in rooms that were uh lit
02:0824 7. now uh we've also been made to understand in the course of our interviews with the family and
02:15the
02:15children that family contact was extremely limited and only one or two monitored phone calls were allowed
02:22um the children's families were allowed were permitted to see the children only once throughout the
02:29detention period only once and that too i must say towards the end of the 26-day the uh detention
02:36that
02:36they had to go through now with regards to right to counsel the children's right to counsel was
02:42restricted these miners were uh sort of uh told to sign forms and uh if they did not sign these
02:51forms they
02:52would be denied access to to counsel now under the law under sosma provisions the they can deny counsel or
03:01access to counsel for the first 48 hours they can do that however in this in the case involving at
03:09least
03:09two out of the three miners they were we were only granted access four days after we sent in the
03:16request
03:17to visit uh uh the the children four days so it wasn't even immediate and and melissa we must make
03:25this
03:26clear swakam found out um at least a good two weeks uh in and then when when swaram found out
03:35we immediately
03:36wrote in which means we have we are already on uh day 20 plus and we were granted access four
03:44days after
03:44and after we were granted access several days later they were we were informed we were expecting a charge but
03:50they were released instead shall she help me understand so sosma if i understand correctly is
03:57intended for very serious national security threats how are children considered a national security threat
04:06what threshold did this case meet that threshold um okay so i i am unable to answer your question because
04:16the practices and procedures laid down in sosma can effectively keep us out of the look we do not
04:24know what was what actually transpired because we we don't have um sharing of this information between
04:32the pdrm and the lawyer and council and during the interview that i personally conducted of course
04:39uh farida conducted interview for her her her client for the uh child that i interviewed all i was informed
04:48is that he was um part of a whatsapp group and that uh he had a laptop and mobile phone
04:59that was confiscated
05:00from him now apart from that everything else that he found out he found out during the investigation
05:05and he was told that this was happening or you are involved in this and and and that so what
05:12is the
05:12this and that is something that i'm going to tell you now the inspector general of police the igp had
05:18framed or claimed that these miners were an active extremist cell active extremist cell uh labeling one of
05:27them one of the three as a mastermind behind alleged uh alleged plots to attack certain locations in
05:33Malaysia so this is what um the igp has come out to say now in the course of investigation that
05:41is not
05:41what we discovered or that is not what we were informed by the children they they were where at least
05:47two of them were privy to some of the conversation but certainly they did not uh with us they did
05:54not
05:54allude uh or confess to any form of conversation regarding um in involvement in uh terrorism related
06:07shashi is there anything in sasma in the procedural law that explicitly addresses or accommodates when
06:16miners are uh arrested or detained under this law i'm just wondering what concerns there are when a law like
06:24sosma is applied to children okay so so um section 13 of sosma is a provision that allows for bail
06:33now
06:34what or or well it's a provision that allows for bail but the general rule is that bail shall not
06:40be
06:41granted to anyone who's arrested investigated and charged uh for an offense uh using sosma procedures
06:48however there is an exception and one of the exception and this is where the miners mentioned
06:54it's under section 13 subsection 2 where it says that a person below the age of 18 years may be
07:00released
07:01on bail this is after a charge is uh preferred against the child however this is an often overlooked
07:09proviso within section 13 there is a proviso that goes on to say that if a child is then
07:18charged uh charged for an offense under chapter 6a of the penal code what is chapter 6a of the penal
07:25code
07:25the title is offenses relating to terrorism terrorism now if a child is charged for under section
07:35uh under chapter 6 uh a of the penal code then bail can be denied so what i'm saying here
07:43is even if you
07:44rely on they say that there are bail provisions that allow children to be released well it does not
07:50apply to children who are investigated for terrorism related offenses they still will be detained that can
07:56be detained and bill will not be granted so this is where we are clearly at conflict between sosma procedures
08:02and the child act okay you know when you you said that there are concerns or charges or investigations of
08:11of terrorism i i think often we miss the fact that children are sometimes used or recruited or groomed online
08:22through by extremist networks through social media through online gaming you know we've seen many documentaries many um
08:28um exposes about this does that or should that shape the context of the legal response of the way a
08:39law like
08:40sosma is used well um excellent question now when we deal with children whatever the offense may be the child
08:52act is
08:52equipped to deal with no matter how serious the offense is right so if if they are going to say
09:00that there is the possibility that children are easily influenced to uh or used as tools to conduct
09:07terrorism related offenses while that may have some uh uh what should i say it is uh true research has
09:17shown that
09:18um there are uh groups that have used children to perpetrate these uh terrorism related crimes however
09:26they are children and they must be treated as such so the very fact that they're impressionable and easily
09:33influenced how do we use such uh draconian uh detention laws on them we should be looking at rehabilitating we
09:43should be looking at reforming the minds of these children and not treating them as terrorists if i
09:49could you know uh broadly use that word so uh sure we need uh well there are security offenses and
09:59we have
09:59sosma to cover the procedures for terrorism related activities however when it comes to children they
10:06should not sosma should not be used or applicable applied to detaining or charging children we have
10:13the child act no matter how grave or serious the offenses may be the child act is equipped to deal
10:19with
10:20children in conflict with the law i can't imagine what those children went through being detained in
10:25solitary confinement for 26 days with very little access to um to the outside what how do we prevent this
10:34from
10:34happening again what is suara i'm calling for now so that this doesn't become a case we read about again
10:42sure immediate measure melissa we call for an immediate moratorium on the use of sosma uh against
10:49children immediate moratorium long term we would ask for uh and this is what we've always sought for
10:56uh the abolishment of sosma i think that the criminal procedure code and any other procedural uh laws
11:04including for children the child act is sufficient to deal with serious crimes including serious
11:11security offenses that has been that has always been our position now uh to to further support my
11:18point um i would you recall the internal the internal security act the isa the isa was for serious
11:26security measures and that was we loosely said that sosma came in to replace the isa right now i just
11:34want to point out that if you the child act actually specifically states that crimes under the isa fall
11:41within the child act it's there in the definition section uh under the child act they refer to the isa
11:48although it has been abolished uh i checked uh yesterday and the it does still refer to the isa now
11:55if
11:55sosma was supposed to be the provision came in in 2012 since isa was also abolished that very year
12:02then why isn't sosma part or or include or well sosma is a procedural law right that came to replace
12:10the isa then why are we using newly created laws to deal with children when even offenses under the isa
12:17was false within the child act or that is the argument or that is what we are we are saying
12:24so no
12:24matter how serious we should not use draconian laws such as sosma or procedural laws such as sosma
12:31against children okay so hopefully there will be a moratorium of ever using sosma on children
12:39until we get this this loophole fixed um this legal loophole fixed shashi thank you so much for being on
12:45the show with me today that's criminal lawyer and director of swaram shashi david there we're going
12:49to take a quick break here and consider this we'll be back with more stay tuned
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