On Retabling The Motion to Extend Section 4(5) of SOSMA 2012

The Federal Government tabled a motion in Parliament to extend the application of Section 4(5) of the Security Offences (Special Measures) Act 2012 (“SOSMA 2012”) for yet another five years (“the Defeated Motion”).[1]

Section 4(5) of the SOSMA 2012 allows a “police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.”

As a safeguard against the detention without trial allowed in Section 4(5), Section 4(11) of the SOSMA 2012 was enacted. The latter provides the following:

“Subsection (5) shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of Parliament to extend the period of operation of the provision.”

The Defeated Motion was introduced as the present period of operation of Section 4(5) of the SOSMA 2012 will be coming to an end on 30th July 2022.[2]

The Defeated Motion, however, was not passed as 86 MPs voted against it, as opposed to 85 MPs who voted in favour of it.[3]

The Home Minister recently announced that the Federal Government is looking to re-table the SOSMA motion.[4]

Questions have arisen whether the Federal Government can do so, especially in the present Parliamentary session when the Defeated Motion was not passed.

Mr. Andrew Khoo, the co-chairperson of the Bar Council’s Constitutional Law Committee, has provided his views on the matter.[5]

He very aptly referenced Standing Order 36(3) of the Standing Orders of the Dewan Rakyat[6] (“Standing Orders”) which states that:

“It shall be out of order to attempt to reconsider any specific question upon which the House has come to a conclusion during the current session except upon a substantive motion for rescission.”

In essence, this would mean that the Federal Government cannot re-table the Defeated Motion until the Dewan Rakyat sits post-15th General Election.[7]

After all, the Dewan Rakyat has come to a conclusion during the current session about the contents of the Defeated Motion.

One possible way for the Federal Government to re-table the Defeated Motion during the current session would be to suspend the application of Standing Order 36(3).

Suspending Standing Order 36(3)

Based on Standing Orders 26(1)(m) and 90(1), it can be inferred that a motion can be moved to suspend any of the Standing Orders.

Order 26(1)(m) of the Standing Orders provides that:

“Unless Standing Orders otherwise provide, notice shall be given of any motion which it is proposed to move with the exception of the following:

(m) a motion to suspend any Standing Order moved under Standing Order 90 when the consent of Tuan Yang di-Pertua has been expressed.” (Emphasis mine)

Meanwhile, Order 90(1) of the Standing Orders states:

“Except with the consent of Tuan Yang di-Pertua, the House shall not proceed upon any Bill, amendment, motion or petition which, in the opinion of Tuan Yang di-Pertua, would suspend the Standing Orders of the House or any of them.” (Emphasis mine)

During the next ordinary Dewan Rakyat sitting, scheduled to be from 18th July 2022 to 4th August 2022,[8] the Federal Government could introduce a motion to suspend Standing Order 36(3) [“Suspension Motion”] and fast track voting on the Suspension Motion.

After the Suspension Motion is passed, the Defeated Motion can then be re-tabled and voted upon.

If the Federal Government opts to go down this route, a special sitting of the Dewan Negara has to be called as the Dewan Negara is only scheduled to sit from 8th August 2022 to 16th August 2022[9] and the Defeated Motion would have to be passed by both the Dewan Rakyat and the Dewan Negara before 30th July 2022.


An Overview Of SOSMA

SOSMA is the short form for the Security Offences (Special Measures) Act 2012. The act was enacted in 2012 as a replacement to the repealed Internal Security Act (ISA)

SOSMA covers ‘Criminal conspiracy’ (Chapter VA of the Penal Code) and ‘Offences against the State’ (Chapter VI of the Penal Code). Some of the interesting provisions of the Act worth taking note include:

A. Power of arrest and detention (s.4)

s.4(1) allows a police officer (henceforth PO) to arrest & detain without warrant, a person he believes is involved in security offences

s.4(2) states that the person arrested would be informed of the grounds of arrest by the PO making the arrest “as soon as may be”

s.4(3), no person can be arrested & detained under s.4 solely for his “political belief/political activity”

s.4(4) articulates that the arrested person can be detained for 24 hours

s. 4(5) allows the period of detention to be extended to 28 days (max.) by a PO ranked Superintendent or above

B. Notification of next-of-kin and consultation with legal practitioner (s.5)

s.5(1) states that when a person is arrested & detained under s.4, the PO conducting the investigation will
(a) immediately notify the next-of-kin about the arrest, and
(b) allow the detainee to consult a legal practitioner [subject to subsection(2)]

s.5(2), the delay of legal consultation for 48 hours (max.) may be authorised by a PO ranked Superintendent or above

Grounds for the delay of consultation under s.5(2)
(a) reasonable grounds to believe it may interfere with the evidence
(b) it will lead to harm to another
(c) it will lead to alerting another suspect not yet arrested, or
(d) it will hinder the recovery of property obtained as a result of the offence

C. Power to intercept communication (s.6)

D. Bail (s.13)

s.13(1), bail shall NOT be granted to a person charged with a security offence

s.13(2) states that a person below 18 years old, a woman, or a sick/infirm person not charged with an offence relating to terrorism may be released on bail depending on certain conditions