*SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012

This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

Application

relating to the Cabinet, Cabinet committees and State

Executive Council; or

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

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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.

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.

No person shall be arrested and detained under this section solely for his political belief or political activity.

The person arrested and detained under subsection (1) may be detained for a period of twenty-four hours for the purpose of investigation.

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.

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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.

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.

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.

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.

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].

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)

For the purpose of this section, “political belief or political activity” means engaging in a lawful activity through—

immediately notify the next-of-kin of such person of his arrest and detention; and

subject to subsection (2), allow such person to consult a legal practitioner of his choice.

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—

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This section shall have effect notwithstanding anything inconsistent with Article 5 of the Federal Constitution.

Power to intercept communication

to intercept, detain and open any postal article in the course of transmission by post;

to intercept any message transmitted or received by any communication; or

to intercept or listen to any conversation by any communication.

The Public Prosecutor, if he considers that it is likely to contain any information relating to the communication of a security offence, may—

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Notwithstanding subsection (1), a police officer not below the rank of Superintendent of Police may—

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.

The court shall take cognizance of any authorization by the

Public Prosecutor under this section.

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This section shall have effect notwithstanding anything inconsistent with Article 5 of the Federal Constitution.

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.

The Court shall explain the operation of the electronic monitoring device and the terms and conditions of the electronic monitoring device to the person.

The person shall sign a form as specified in the Second

Schedule and deposit the form with the Court.

The person shall be attached with an electronic monitoring device by a police officer.

Security Offences (Special Measures)

The person shall comply with all the terms and conditions of the electronic monitoring device and shall report to the nearest police station at such time as specified in the form.

Any person who fails to comply with the terms and conditions under subsection (5) commits an offence and shall, on conviction, be liable to imprisonment for a term of not exceeding three years.

Any person who tampers with, or destroys, the electronic monitoring device commits an offence and shall, on conviction, be liable to imprisonment not exceeding three years and such person shall be liable to pay for any damage to the electronic monitoring device arising from his action.

Upon expiry of the period referred to in subsection (1), the person shall report to the nearest police station for removal of the electronic monitoring device.

This section shall have effect notwithstanding anything inconsistent with Article 9 of the Federal Constitution.

The Public Prosecutor shall disclose to the court the intention to produce sensitive information as evidence against the accused during the trial and the court shall allow the application under subsection (1).

The court shall view the sensitive information and other documents relating to the sensitive information and the court shall, in lieu of the delivery of the documents by the Public Prosecutor to the accused, order the Public Prosecutor to produce—

Upon delivery of the statement or summary of the sensitive information pursuant to section 51A of the Criminal Procedure Code, if the accused objects to the admission of the statement or summary of the sensitive information as evidence, the accused’s counsel shall be allowed to—

The Public Prosecutor shall then submit rebuttal submission.

The hearing shall be held in camera.

After hearing the Public Prosecutor’s submission, the court shall decide whether—

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The decision of the court under this section is non-appealable.

Notice of accused’s intention to disclose sensitive information

The notice shall include a brief description of the sensitive information.

Whenever an accused learns of additional sensitive information which he reasonably expects to disclose at his trial, he shall give two days’ notice to the Public Prosecutor and the court in writing of his intention to do so and such notice shall include a brief description of the sensitive information.

No accused shall disclose any information known or believed to be sensitive in connection with his trial until notice has been given under this section and until the court makes a decision pursuant to the procedure in section 10.

If the accused fails to comply with the requirements in this section, the court may preclude disclosure of any sensitive information not made the subject of notice and may prohibit the examination by the accused of any witness with respect to any such information.

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Hearing of the disclosure of sensitive information by the accused

The accused shall submit the sensitive information to the court.

The court shall view the sensitive information and decide on the relevancy of the sensitive information in the trial.

If the court decides that the sensitive information is relevant the court shall conduct the trial in camera.

Sensitive information that arises during trial

The court after referring to the document shall decide on the relevancy of the document in the trial.

Subject to subsection (4), if the court decides that the document is relevant the court shall then direct the Public Prosecutor to produce—

The court shall not direct the Public Prosecutor to produce any—

Notwithstanding subsection (1)—

For the purpose of satisfying itself as to the need to protect the identity of the witness, the court shall hold an inquiry in camera by questioning the witness concerned or any other witness in the absence of the accused and his counsel.

The court shall notify the prosecution of its decision to protect the identity of the witness within seven days of the inquiry.

Within seven days of the decision, the prosecution may appeal against a refusal by the court to protect the identity of the witness.

If after such inquiry the court is satisfied as to the need to protect the identity of the witness, the evidence of such witness shall be given in such manner that he would not be visible to the accused and his counsel, but would be visible to the court; and further if the witness fears that his voice may be recognized, his evidence shall be given in such manner that he would not be heard by the accused and his counsel.

Security Offences (Special Measures)

The court may disallow such questions to be put to the witness as to his name, address, age, occupation, race or other particulars or such other questions as in the opinion of the court would lead to the witness’s identification.

Identification by witness where evidence is taken in camera

the name;

the address;

the picture of the protected witness or any other person, place or thing which may lead to the identification of the protected witness; or

any evidence or any other thing likely to lead to the identification of the protected witness.

Any person who prepares a report in contravention of subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years and also to a fine not exceeding ten thousand ringgit.

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Such person shall be permitted to disclose any such communication notwithstanding that the person who made it does not consent.

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Conviction based on testimony of a child of tender years

The information obtained through an interception of communication under section 6 shall only be admissible where tendered under a certificate by the Public Prosecutor stating that the information so obtained had been authorized by the Public

Prosecutor.

A certificate by the Public Prosecutor issued under subsection

together with any document or thing that may be exhibited or annexed to the certificate shall be conclusive evidence that the interception or communication had been so authorized, and such certificate shall be admissible in evidence without proof of signature of the Public Prosecutor.

No person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or the means or devices used with regard to—

The information obtained through an intercepted communication under section 6 may be in narrative or verbatim form whether in the original language or as a translation into the national language or the English language.

Admissibility of documents produced by computers and of statements contained therein

no witness shall be regarded as an accomplice by reason only of such witness having been in any manner concerned in the commission of the security offence or having knowledge of the commission of the offence;

and

no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of a security offence by any person if the attempt to abet or abetment was for the sole purpose of securing evidence against such person.

Notwithstanding any rule of law or any other written law to the contrary, and that the agent provocateur is a police officer whatever his rank, any statement, whether oral or in writing made to an agent provocateur by any person who is subsequently charged with a security offence shall be admissible as evidence at his trial.

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Such statement or confession shall be recorded in full in writing by the Sessions Court Judge to whom it is made and shall then be forwarded to the court before which the case is to be tried.

No Sessions Court Judge shall record any such statement or confession unless, upon questioning the person making it, he is satisfied that it was made without threat, inducement or promise at that particular time.

When the Sessions Court Judge records any confession he shall make a memorandum at the foot of such record to the following effect:

“I am satisfied that this confession was made without threat, inducement or promise. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct and it contains a full and true account of what he said.

(Signed) A.B.

Sessions Court Judge.”.

An oath or affirmation shall be taken or made by any person making a statement or confession under this section.

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Protection of informer

If any books, documents or papers which are in evidence or liable to inspection in any civil or criminal proceeding whatsoever contain any entry in which any informer is named or described or which might lead to his discovery, the court before which the proceeding is had shall cause all such passages to be concealed from view or to be obliterated so far as is necessary to protect the informer from discovery, but no further.

Access by police to detainees or prisoners

being detained under any other written law; or

under confinement in prison, whether convicted or not.

Detention pending exhaustion of legal process

Upon application by the Public Prosecutor under subsection

, the court shall remand the accused in prison pending the filing of the notice of appeal.

When the Public Prosecutor files a notice of appeal against the acquittal, the Public Prosecutor may apply to the trial court for an order to commit the accused remanded in custody of the police to prison pending the disposal of the appeal.

Upon application by the Public Prosecutor under subsection

, the court shall commit the accused to prison pending the disposal of the appeal.

If the appeal of the Public Prosecutor is dismissed and the order of acquittal is affirmed, the Public Prosecutor may make an oral application to the court for the accused to be remanded in prison pending a notice of appeal to be filed against the decision of the

Court of Appeal by the Public Prosecutor.

Upon application by the Public Prosecutor under subsection

, the court shall remand the accused in prison pending the filing of the notice of appeal.

An accused committed to prison under this section shall be held until all appeals are disposed of.

Power to make regulations

The repeal of the Internal Security Act 1960 shall not affect—

to report to the nearest police station at/for every .........................;

understands that all movements will be tracked and retained as an official record;

agrees to be required to report for device equipment checks if necessary;

to notify the police officer if there is any change of address;

to allow inspections of the device by the police officer;

to report to the nearest police station for removal of the device;

to return all the device equipment to the police officer;

to submit to procedures required by the police officer;

to maintain the device as instructed by the police officer;

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to comply with any directions of the police officer;

to comply with any other conditions as the court may determine.