Sri Lanka have seen it’s share of blood and violence starting from the guerrilla warfare by LTTE (Liberation Tigers of Tamil Eelam) back in 1983 – a war that lasted for almost 26 years and killing almost 150,00 people. Now the country remains under threat with this Easter suicide bombing in April 2019 where about 259 people died by a local militant radical Islamist group linked with ISIS. Image source: www.dhakatribune.com
In Malaysia, Liberation of Tamil Tigers Eelam (LTTE) is still in the list of active terror groups – a point that the ex-Home Minister, Tan Sri Muhyiddin Yassin emphasised recently:-
Muhyiddin said the government had gazetted LTTE as a terrorist organisation in November 2014, and based on latest information from the authorities, he had sufficient proof to maintain it in the list.
“This group is believed to have an ideology that can cause a threat to the safety of the public and the country.
“Therefore, it is the duty of the authorities to take action according to the law to contain the spread of any ideology and activity related to the group,” he said.
Muhyiddin said the listing of LTTE was made under Section 66B (1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds From Illegal Activities Act 2001.
This came immediately after the Attorney General Tan Sri Tommy Thomas’ decision to drop 34 charges against 12 people who were accused of being involved with the now defunct LTTE.
These 12 people who included Seremban Jaya assemblyman P. Gunasekaran & Gadek assemblyman G. Saminathan (both from DAP) were detained under the Security Offences (Special Measures) Act (Sosma) back in October 2019 and had remained under arrests since then.
Pursuant to this decision by the AG to drop the charges against the 12 people, there were some questions raised:-
- Why these 12 people were arrested in the first place and why there were not enough evidence to charge them?
- Why now the AG decided to drop the charges and why it took almost 5 months for the AG to make this decision?
- Will this set a dangerous precedent to similar charges in future considering that LTTE is still in the terror list along with ISIS & other terror groups?
It was obvious that the Home Ministry was not happy with AG’s decision and the Minister did make a strong statement against the decision. Some Malaysians were not happy either, calling the AG of practising double standards and being unprofessional.
It is best to look at detailed reasons as to why AG made the decision to drop the charges. To clarify further, the AG has detailed the premise & the considerations that he took in a 11 pages explanation.
Firstly is the premise of whether LTTE is a terror group or now. For this the AG listed out the various findings on LTTE:-
- President Rajapaksa informed Parliament in 2011 that “from the time when terrorist activities ended in May 2009 until today there have been no reports of any terrorist activities”.
- Independent reputable publications issued by the UNHCR, the US Department of State and Janes Defence Weekly confirmed that LTTE had ceased all activities in Sri Lanka by 2009.
- In October 2014, the European Court of Justice annulled the anti-terrorism sanctions and several other restrictions placed by the European Union on the LTTE in 2006.
- In July 2017, the LTTE was removed from the terrorism blacklist of the European Union by the European Court of Justice for a second time. The Court found no evidence to establish LTTE carrying out attacks after its military defeat in 2009.
- The LTTE was neither suspected nor linked to the most recent bomb attacks in Sri Lanka during Easter of 2019.
- LTTE has never in its history carried out violent attacks in Malaysia
Secondly the various factors that the AG office need to consider on whether to proceed or not with the prosecution:-
1. There must be enough evidence to prove the charges beyond reasonable doubt – presently there is a doubt if this is sufficient
The sufficiency of evidence to establish the “beyond reasonable doubt” criminal standard is always a particular challenge. I must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.
2. It is offence that happened 6 years ago – nothing was done back then
It is against the public interest that these 6 persons are tried in 2020 for offences allegedly committed 6 years previously. The passage of time is unacceptable for a case of this nature.
3. LTTE had not made any violent act against the people in Malaysia. Thus the element of harm to Malaysians cannot be established by the prosecution
Even if LTTE was still gazetted under our laws as a terrorist group, the defence will contend that LTTE has not been responsible for violence even in its home country,
Sri Lanka in 2019, let alone having any impact on the ordinary affairs of ordinary people in Malaysia. The link is remote, specious and tenuous.
Harm to Malaysians cannot be established by the prosecution.
4. Section 95 of the Penal Code is clear on the definition of harm – presently it is an offence without any victims
Section 95 emphasizes “harm”: thus, a victimless offence or one which “harms” no one should be treated with caution by prosecution.
5. Review of terror group list every 6 months – whether there are still violent actions by the terror group. If there is no such action, then the Order on the terror group is revoked.
It is therefore plain and clear that the law requires an Order declaring an entity a terrorist group must be reviewed every 6 months by the Minister. If its violent actions or tendencies continue, the Order stays.
If, on the other hand, such actions cease or the entity itself becomes moribund, defunct, dissolved or disbanded, then the Order should be revoked.
6. Offence took place before LTTE was gazetted as a terror group and as such, there is no offence to start with.
One of the accused was charged for giving support and distributing items associated with LTTE in March and June 2014, which were before LTTE was gazetted as a terrorist group.
It is obvious that these charges against him simply cannot stand because at that point of time LTTE was not even gazetted, which is a necessary element of the offences.
Additionally an argument is available to the defence of each accused that the declaration of LTTE as a terrorist group on 12 November 2014 may be invalid or at least ought have been revoked following a Section 66B(9) review of the Order.
7. Gravity of the offence itself – does keeping photos of LTTE leaders create an act of threat or violence to others?
The dividing line between acts which are considered terrorist acts and acts which are not is the gravity of the act: if it causes or intends to cause death of another, it is a terrorist act.
However, if it is merely a statement or protest, whether on the social media or otherwise, without threatening violence, it is not a terrorist act.
Each of them had in his mobile phone or Facebook account photos of Prabhakaran and other leaders of LTTE slain during the Civil War in Sri Lanka. If such conduct can constitute a criminal offence, it would bring the law into disrepute.
The Home Minister can insist that LTTE remains as terror group in the list of terrorists but a successful prosecution of the 12 people depends on many other things. In the end, the AG may not be able to prove the charges beyond reasonable doubt.
Yes, he can still continue with the prosecution nonetheless but if this is the outcome he anticipates, then by continuing, it will only end up wasting the court’s time and resources.
Please do read the AG’s statement in full before one condemns his action to drop the charges