COMMENT | Arresting child witness under Sosma?
COMMENT | In a staggering parliamentary admission, Home Minister Saifuddin Nasution Ismail defended the nine-day detention of a 16-year-old girl under the draconian law known as the Security Offences (Special Measures) Act 2012 (Sosma).
The kicker? She wasn’t even a suspect. Under questioning from Bukit Gelugor MP Ramkarpal Singh, the minister revealed the child was held for nine days as a “mere witness” to an alleged migrant smuggling case involving her father.
At the outset, let me make myself perfectly clear that I never disputed that migrant smuggling is a serious crime and potentially a threat to national security, but that in itself does not give the police free rein to blatantly ignore the law, particularly when it involves minors.
Why was Child Act ignored?
To its credit, Malaysia duly ratified the United Nations Convention on the Rights of the Child (CRC) on Feb 17, 1995. After its ratification, Malaysia has, in turn, taken necessary and bold steps to ensure the rights of children are duly protected and safeguarded.
Hence, the birth of the Child Act 2001. This law is the primary Malaysian legislation enacted to protect, care for, and rehabilitate children under 18.
Arresting and detaining a 16-year-old girl under Sosma, in my view, was definitely illegal and unlawful as it infringed upon the Child Act. In fact, Suhakam strongly objected to the said arrest and detention.
Even more egregious, the child was not even a suspect. Did the police or the home minister duly consider the sheer horror and nightmarish trauma of a child being detained, let alone under the draconian weight of Sosma?
If the police and home minister took pain to read Section 83 of the Child Act, they would have realised that, notwithstanding anything contained in any written law relating to the arrest, the detention of a child can only be made, even under the same Act, if such a child has allegedly committed an offence.
So, what offence did the poor girl commit here? None! Here we have an iron-clad admission by the home minister that the child did not commit any offence at all.
The 16-year-old girl was arrested and detained for nine days under Sosma because she was a witness. Period.
By invoking Sosma, there was no need for the child to be brought before a magistrate for remand because Sosma trumps the Criminal Procedure Code (CPC) and the Evidence Act 1950.
Sosma tramples over all other laws
In fact, Sosma even supersedes the supremacy of our Federal Constitution. Yet a minister in the Madani government is protecting this obnoxious Act.
The latest case demonstrates that even the protection of a child, which is duly embedded in the Child Act, has been unduly trampled upon by Sosma.
The police arrested and detained a child under Sosma, hence completely jettisoning her rights and protections under the Child Act, and the home minister had no qualms about defending such an illegal and unlawful act by the police.
Would the family of the child seriously consider taking legal action against the alleged malefactors in this case? I wish I were still a lawyer who could render pro bono service to her and her family.
MOHAMED HANIPA MAIDIN is former deputy law minister.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
