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

by Joshua Wu Kai-Ming | Mar 29, 2022 | Law

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.

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