SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 747 SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012 As at 1 August 2015 2 SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012 ... … … … … … 18 June 2012 Date of publication in the ... Gazette … … … … … 22 June 2012 Date of Royal Assent Latest amendment made by Act A1487 which came into operation on ... … … … … 15 June 2015 3 LAWS OF MALAYSIA Act 747 SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and application 2. Application 3. Interpretation PART II SPECIAL POWERS FOR SECURITY OFFENCES 4. Power of arrest and detention 5. Notification to next-of-kin and consultation with legal practitioner 6. Power to intercept communication PART III SPECIAL PROCEDURES RELATING TO ELECTRONIC MONITORING DEVICE 7. Special procedures relating to electronic monitoring device 4 Laws of Malaysia ACT 747 PART IV SPECIAL PROCEDURES RELATING TO SENSITIVE INFORMATION Section 8. Sensitive information to be used as evidence by the Public Prosecutor 9. Notice of accused’s intention to disclose sensitive information 1 0 . Hearing of the disclosure of sensitive information by the accused 1 1 . Sensitive information that arises during trial PART V TRIAL 1 2 . Trial of security offences 1 3 . Bail PART VI SPECIAL PROCEDURES RELATING TO PROTECTED WITNESS 1 4 . Evidence of witness given in a special manner 1 5 . Identification by witness where evidence is taken in camera 1 6 . Protection of witness’ identity PART VII EVIDENCE 1 7 . Inconsistency with the Evidence Act 1950 1 8 . Statement by any person who is dead, etc. 18A. Statement by accused 18B. Communications during marriage 1 9 . Conviction based on testimony of a child of tender years 2 0 . Documents or things seized or howsoever obtained 2 1 . Evidence of identification of accused or other person 2 2 . Lists of documents and things 2 3 . Non-production of exhibit Security Offences (Special Measures) 5 Section 2 4 . Admissibility of intercepted communication and monitoring, tracking or surveillance information 2 5 . Admissibility of documents produced by computers and of statements contained therein 2 6 . Evidence of accomplice and agent provocateur PART VIII MISCELLANEOUS 2 7 . Power to record statements and confessions 2 8 . Protection of informer 2 9 . Access by police to detainees or prisoners 3 0 . Detention pending exhaustion of legal process 3 1 . Power to make regulations 3 2 . Repeal and savings FIRST SCHEDULE SECOND SCHEDULE 7 LAWS OF MALAYSIA Act 747 SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012 An Act to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters. [31 July 2012, P.U. (B) 256/2012] WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia— (1) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; (2) to excite disaffection against the Yang di-Pertuan Agong; (3) which is prejudicial to public order in, or the security of, the Federation or any part thereof; or (4) to procure the alteration, otherwise than by lawful means, of anything by law established; AND WHEREAS Parliament considers it necessary to stop such action; NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution IT IS ENACTED by the Parliament of Malaysia as follows: 8 Laws of Malaysia ACT 747 PART I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Security Offences (Special Measures) Act 2012. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette. Application 2. This Act shall apply to security offences. Interpretation 3. In this Act, unless the context otherwise requires— “security offences” means the offences specified in the First Schedule; “Court” means the Sessions Court; “sensitive information” means any document, information and material— (a) relating to the Cabinet, Cabinet committees and State Executive Council; or (b) that concerns sovereignty, national security, defence, public order and international relations, whether or not classified as “Top Secret”, “Secret”, “Confidential” or “Restricted” by a minister, the Menteri Besar or Chief Minister of a Security Offences (Special Measures) 9 State or any public officer appointed by a minister, the Menteri Besar or Chief Minister of a State; “Minister” means the Minister charged with the responsibility for home affairs; “protected witness” means a witness whose exposure will jeopardize the gathering of evidence or intelligence or jeopardize his life and well-being. PART II SPECIAL POWERS FOR SECURITY OFFENCES Power of arrest and detention 4. (1) A police officer may, without warrant, arrest and detain any person whom he has reason to believe to be involved in security offences. (2) A person arrested under subsection (1) shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest. (3) No person shall be arrested and detained under this section solely for his political belief or political activity. (4) The person arrested and detained under subsection (1) may be detained for a period of twenty-four hours for the purpose of investigation. (5) Notwithstanding subsection (4), 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. 10 Laws of Malaysia ACT 747 (6) If the police officer is of the view that further detention is not necessary under subsection (5), the person may be released but an electronic monitoring device may be attached on the person in accordance with subsections (7) and (8) for the purpose of investigation. (7) If the police officer intends to attach an electronic monitoring device on the person upon his release, he shall submit a report of the investigation to the Public Prosecutor. (8) Upon receipt of the report under subsection (7), the Public Prosecutor may apply to the Court for the person to be attached with an electronic monitoring device in accordance with the provisions in Part IIIfor a period which shall not exceed the remainder of the period of detention allowed under subsection (5). ILLUSTRATION D is arrested for a security offence. After twenty-four hours of detention a Superintendent of Police extended his detention for another seven days. At the expiry of the seven-day period D was released but he was still needed to assist the investigation. Upon receipt of a report from the police officer, the Public Prosecutor may apply to the Court to attach an electronic monitoring device on D. The Court may allow the electronic monitoring device to be attached to D up to a period of twenty-one days. (9) One week before the expiry of the period of detention under subsection (5), the police officer conducting the investigation shall submit the investigation papers to the Public Prosecutor. (10) This section shall have effect notwithstanding anything inconsistent with Articles 5 and 9 of the Federal Constitution and section 117 of the Criminal Procedure Code [Act 593]. (11) 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. Security Offences (Special Measures) 11 (12) For the purpose of this section, “political belief or political activity” means engaging in a lawful activity through— (a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by— (i) membership of or contribution to that party; or (ii) open and active participation in the affairs of that party; (b) the expression of an opinion directed towards any Government in the Federation; or (c) the pursuit of a course of action directed towards any Government in the Federation. Notification practitioner to next-of-kin and consultation with legal 5. (1) When a person is arrested and detained under section 4, a police officer conducting investigation shall— (a) immediately notify the next-of-kin of such person of his arrest and detention; and (b) subject to subsection (2), allow such person to consult a legal practitioner of his choice. (2) A police officer not below the rank of Superintendent of Police may authorize a delay of not more than forty-eight hours for the consultation under paragraph (1)(b) if he is of the view that— 12 Laws of Malaysia ACT 747 (a) there are reasonable grounds for believing that the exercise of that right will interfere with evidence connected to security offence; (b) it will lead to harm to another; (c) it will lead to the alerting of other person suspected of having committed such an offence but who are not yet arrested; or (d) it will hinder the recovery of property obtained as a result of such an offence. (3) This section shall have effect notwithstanding anything inconsistent with Article 5 of the Federal Constitution. Power to intercept communication 6. (1) Notwithstanding any other written law, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of a security offence, may authorize any police officer or any other person— (a) to intercept, detain and open any postal article in the course of transmission by post; (b) to intercept any message transmitted or received by any communication; or (c) to intercept or listen to any conversation by any communication. (2) The Public Prosecutor, if he considers that it is likely to contain any information relating to the communication of a security offence, may— Security Offences (Special Measures) 13 (a) require a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or (b) authorize a police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication or communications of a specified description and to remove and retain such evidence. (3) Notwithstanding subsection (1), a police officer not below the rank of Superintendent of Police may— (a) intercept, detain and open any postal article in the course of transmission by post; (b) intercept any message transmitted or received by any communication; or (c) intercept or listen to any conversation by any communication, without authorization of the Public Prosecutor in urgent and sudden cases where immediate action is required leaving no moment of deliberation. (4) If a police officer has acted under subsection (3), he shall immediately inform the Public Prosecutor of his action and he shall then be deemed to have acted under the authorization of the Public Prosecutor. (5) The court shall take cognizance of any authorization by the Public Prosecutor under this section. 14 Laws of Malaysia ACT 747 (6) This section shall have effect notwithstanding anything inconsistent with Article 5 of the Federal Constitution. (7) For the purpose of this section— “communication” means a communication received or transmitted by post or a telegraphic, telephonic or other communication received or transmitted by electricity, magnetism or other means; “communications service provider” means a person who provides services for the transmission or reception of communications. PART III SPECIAL PROCEDURES RELATING TO ELECTRONIC MONITORING DEVICE Special procedures relating to electronic monito