His lawyer, S Selvam, challenged the detention on the grounds that a police officer’s power to detain a suspect under Sosma for 28 days had lapsed on July 31, 2017 as a resolution passed by Parliament was not gazetted by the home minister.
The High Court dismissed the challenge, saying the legislature’s approval was sufficient and the gazette was not mandatory.
Subramaniam appealed to the Federal Court but it became academic when the prosecution dropped charges against him in early 2020.
History is now repeating itself.
The lawyer has again resorted to the same grounds when Rahmat Fitri Abdullah, an assistant superintendent of police, was detained on April 26 this year under Sosma for alleged links to fugitive businessman Nicky Liow.
Rahmat’s case came before the High Court on Wednesday, but he was freed two days earlier on police bail, rendering his challenge academic. Nine other policemen held under the same Act were also freed and the argument raised by Selvam never came before the court.
But the question remains. Is Sosma null and void?
Even High Court judge Abdul Karim Abdul Rahman, who was to hear Rahmat’s case, highlighted that Rahmat has raised an interesting legal point.
“It is a case of second time unlucky but I guess I will have to wait for another case to mount a challenge in the Federal Court,” Selvam told FMT.
Selvam said that even though police officers were granted power under Section 4(5) of Sosma to detain suspects for investigation, there were limitations in the law.
He said Section 4(11) of Sosma states that subsection (5) shall be reviewed every five years and shall cease to have effect unless a resolution is passed by both Houses of Parliament to extend the provision’s period of operation.
“From my research, a police officer’s power to detain a suspect under Sosma for 28 days had lapsed on July 31, 2017 as the resolution was not gazetted by the home minister,” he said.
Sosma, a procedural law, was enacted to deal with terrorism and security offence cases and came into force on June 22, 2012.
Lawyer Gobind Singh Deo, who is representing ASP Baldev Singh from the Sentul police, who is also implicated in the case, said there would be wide repercusions if the Sosma detention was declared unlawful.
Rahmat and Baldev were among 10 police personnel and two Malaysian Anti-Corruption Commission officers arrested and investigated for fraud and money laundering.
“All arrests by police and detention upon conviction will be subject to challenge,” said Gobind.
He said lawyers were waiting for a challenge against such a detention to go up to the Federal Court to bring certainty to the law.
“Two High Court rulings can be in conflict but an apex court verdict will settle the issue once and for all. It will also be guidance to the lower court,” he said.
Lawyer Salim Bashir said the use of Sosma for investigation and prosecution purposes gave law enforcement authorities an upper hand over accused persons.
“Under Sosma, suspects can be detained up to 28 days without having to be produced before a magistrate,” he said, adding that those charged could be denied bail pending the outcome of their trials.
The former Bar president said a suspect’s statement recorded during investigation can be admitted as evidence during trial.
Further, he said, Sosma gave protection to the identity of prosecution witnesses when they gave evidence.
“Sosma procedures are an affront to the rule of law and fair trial to the accused persons,” he added.