Some 30 people, 27 of them Filipinos, will go on trial in early January in a specially-converted hall in Sabah’s state prison complex to face charges of "waging war" against Malaysia’s King, in what is set to be the most significant test yet of the country’s newest security law.
The accused were detained in the wake of a surprise attack almost a year ago on the sleepy villages around the town of Lahad Datu in Sabah on the Malaysian part of Borneo, after an armed group of about 200 people from the self-styled Royal Sulu Army arrived in boats from the Philippines, claiming the land for the Manila-based national Sultan of Sulu, Jamalul Kiram III.
After a three week standoff, and amid accusations the government had been slow to respond, Malaysian forces bombed the villages from the air and began a ground offensive that left scores of attackers dead, along with 10 of their own men.
They may have been involved in Lahad Datu, but that doesn’t mean they don’t have a right to a fair trial.
"It’s a cross border situation and very challenging," lawyer N Sivananthan, who was hired by the Philippine government to represent their citizens, told Al Jazeera in an interview ahead of the trial. "They all face the death penalty; that’s the pressure point. Nevertheless, it’s going to be interesting to see how the court views SOSMA and how it’s going to find a balance between the purpose of the law and the need for a fair trial."
SOSMA, or the Special Offences (Special Measures) Act, was passed in 2012 to replace Malaysia's Internal Security Act and Emergency Ordinance, which allowed for detention without trial. It was designed, "for the purpose of maintaining public order and security and for connected matters," according to the legislation’s opening preamble.
Those on trial, including the Sultan’s nephew, Datu Amirbahar Kiram, were detained in the days and weeks following the incident, as the Malaysian authorities sought to tighten security and the state’s notoriously porous borders. Sivananthan says his clients were not involved in the conflict and were simply, "in the wrong place, at the wrong time." He notes that while police did confiscate a number of machetes, they found no guns on any of the accused.
A challenging trial
A hearing last September gave some indication of the challenges posed by the trial, which is expected to continue until February 14. The defendants, heads shaved and dressed in purple prison uniforms, shuffled into the first floor court room with their interpreters, barely acknowledging each other or anyone else. It took more than 20 minutes to simply arrange the seating in the dock. Many of the defendants didn't even seem able to follow the proceedings. Given their precarious legal status, no family members were able to attend.
Requesting more time, Attorney General Abdul Gani Patail told the judge that the prosecution would be using a large amount of what he called, "technical" evidence; information gleaned from intercepts and other forms of intelligence material. Sivananthan, a noted criminal lawyer who is Malaysia’s sole counsel at the International Criminal Court, says the prosecution has indicated it may also want to use some "hidden" evidence. Under SOSMA, the prosecution can keep the identity of its witnesses secret and use information without revealing its sources. Abroad, in the UK for example, judges have usually treated such evidence with extreme caution.
"This whole trial could be in Chambers," said Nalini Elumalai, executive director of human rights group Suaram, which campaigned for years for the ISA’s repeal. "It’s a similar situation (to the ISA); a similar modus operandi. The only difference is that, at least, these people are brought to court. The question is the evidence. They may have been involved in Lahad Datu, but that doesn’t mean they don’t have a right to a fair trial. These are serious offences."
The first and last trial on charges of "waging war against the King" involved Al Ma’unah, an Islamic group that seized control of a military armoury in northern Perak in 2000, stealing weapons and killing two hostages during a days-long jungle siege. The leader of the group and his two deputies were both found guilty and sentenced to death, while other members of the organisation were given life sentences. Those who plead guilty to reduced charges got lighter sentences. All were Malaysians.
SOSMA has been used already in a handful of cases and defence lawyers have raised both constitutional issues and fair trial concerns.
"You cannot use a hammer to kill an ant," said lawyer New Sin Yew, who is defending a Malaysian charged under SOSMA with offences against Syria. "Even though SOSMA allows the derogation of certain rights (enshrined in the constitution), what is the extent of that derogation? Those provisions should not go further than necessary. This is going to be a very important trial."
Jamalul Kiram died in October, but the Philippines has never completely dropped its claim to Sabah, whose people voted, once the British left, to join the newly independent Malaya in the Malaysian Federation in 1963.
Hundreds of thousands of Filipinos have lived in Sabah for generations, many of them illegally. Many earn a meagre salary on the oil palm plantations that are ubiquitous along the state’s eastern coast, living in makeshift shacks in clearings among the trees. Most speak only local dialects and can’t communicate in Malay or English.
The Lahad Datu incident shocked many Malaysians – it was the top search on Google in 2013 - and fuelled a slew of conspiracy theories regarding the circumstances surrounding the attack and Malaysia’s relationship with the Philippines, including peace talks between the Muslim south and the government in Manila.
Evidence presented at trial, if it’s released in open court, could well provide more information not only about what actually happened in February and March, but also a complex historical relationship.