Attorney
General drops criminal proceedings against LTTE 12 (updated)
21 Feb 2020
PETALING JAYA: All 34 charges
against the 12 accused of being involved with Sri Lanka's Liberation Tigers of
Tamil Eelam (LTTE) will be dropped immediately, says Attorney
General Tan Sri Tommy Thomas.
He said that mere
idol-worshipping does not constitute a crime, adding that there is “no
realistic prospect of conviction for the dozen accused on any of the 34
charges”.
“Accordingly, in the exercise
of my discretion pursuant to Article 145(3) of the Federal Constitution, I have
decided to discontinue proceedings against them with immediate effect.
“Each of them had in his
mobile phone or Facebook account photos of (Velupillai) 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.
“But even if there were
elements of a ‘terrorist act’ on the part of all or any of the 12 accused of
possessing, distributing or displaying such photos of Prabhakaran, it would be
impossible for the prosecution to establish that they do not fall within the
excluded category of Section 130B(4) of the Penal Code in that they merely
constitute ‘advocacy, protest or dissent’.
“It is commonplace to have
idols to whom hero worship is displayed. It is not just pop stars, sportsmen or
actors who are admired: historical personalities and politicians are often the subject of
adoration.
“Thus, millions of people
across the globe admire Lenin, Stalin, Mao Tse Tung or Che Guevara, and the
like.
“Having their photos and
other representations in one’s mobile phone or on a Facebook account does not
transform one to being a terrorist.
“Just because each of these
leaders used terror or violence to achieve their political goals does not mean
that an ardent supporter online should be regarded as a terrorist or is
planning a terrorist act.
“That is the common theme of
all the 12 LTTE accused.
“For these reasons, I have
decided that there is no realistic prospect of conviction for any of the
12 accused on any of the 34 charges, ” said Thomas in a 11-page statement on
Friday (Feb 21).
He explained that there must
be sufficient evidence for prosecution to establish the crime “beyond reasonable
doubt”.
He said that prosecutors must
take account of facts that only become known as the case develops after charges
are laid.
“I must be satisfied that
there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each
charge. In reaching that judgement, I must exercise discretion responsibly and
impartially.
“It is noted that six of the
accused have been charged for offences that allegedly took place between March
and December 2014 but prosecutors did not see it fit to charge them soon after
the alleged offences had been committed.
“It is against the public interest
that these six persons are tried in 2020 for offences allegedly committed six
years previously. The passage of time is unacceptable for a case of this
nature.
“The charges relating to the
other six accused concern offences allegedly occurring in January and October
2019 but by this time, even if LTTE was still gazetted under our laws as a
terrorist group, the defence will contend that the 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, ” said Thomas.
The 12 were detained by the
Counter Terrorism Division (E8) on Oct 10 and 12,2019 in various parts of the
country.
Among them were two DAP
politicians – Melaka executive councillor G. Saminathan, who is the Gadek
assemblyman, and Seremban Jaya assemblyman P. Gunasekaran.
Sri Lanka was embroiled in a
26-year civil war between the LTTE and the military, which saw around 80,000 to
100,000 people killed.
The civil war ended when the
military defeated the LTTE in May 2009.
However, over the years,
there have been several arrests by authorities against individuals said to be
supporting the LTTE, which was labelled a terrorist organisation in Malaysia
under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of
Unlawful Activities Act in February 2014.
Sri Lanka, the United States,
Canada, India and the European Union have also labelled the LTTE a terrorist
group.
Here is Thomas’
11-page statement in full:
1. On 29 October 2019,12 Malaysian men were
charged with supporting the Liberation Tigers of Tamil Eelam (“LTTE”). All the
accused have since been held in detention under the Security Offences (Special
Measures) Act 2012, otherwise known as SOSMA, and will face trials in the
coming months.
LTTE
2. Founded in May 1976 by Velupillai
Prabhakaran, LTTE was involved in armed clashes against the Sri Lankan state
forces and by the late 1980’s was the dominant Tamil militant group in Sri
Lanka. Since 1983, more than 80,000 have been killed in the civil war that
lasted 26 years.
3. President Mahinda Rajapaksa of Sri Lanka
declared military victory over the Tamil Tigers on 16 May 2009. The rebels
offered to lay down their weapons in return for a guarantee of safety. On 17
May 2009, LTTE’s head of the Departmentof International Relations, Selvarasa
Pathmanathan conceded defeat, saying in an email statement, “this battle has
reached its bitter end”.
4. With the end of the hostilities, 11,664
LTTE members surrendered to the Sri Lankan military in May 2009.
5. In August 2011, President Rajapaksa
presented to Parliament a repeal of the country’s stringent emergency
regulations introduced in 2005 to deal with the LTTE threat. 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”.
6. 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.
7. 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. The Court noted that the
decision to proscribe the LTTE had been based on “imputations derived from the
press and the Internet” rather than on direct investigation of the group’s
actions, as required by law. Later, in March 2015, the EU reimposed the
sanctions and restrictions.
8. 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.
9. The LTTE was neither suspected nor linked
to the most recent bomb attacks in Sri Lanka during Easter of 2019.
10. LTTE has never in its history carried out
violent attacks in Malaysia.
Criteria and Considerations for Prosecution
11. As Public Prosecutor, I must conduct
myself in a manner which will maintain, promote and defend the interest of
justice: The Prosecution Policy issued by the Australian Office of Public
Prosecutions in August 2019 expresses it appropriately:-
“In the final analysis the prosecutor is not a
servant of government or individuals – he or she is a servant of justice”
12. It is incumbent upon a prosecutor that the
law is properly applied and to seek a fair balance between conflicting public
interests. The intensity of preparation for a trial makes it different from
investigation by the police or other investigating agency. Prosecutors must
take account of facts that only become known as the case develops after charges
are laid. 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. In reaching that judgement, I must
exercise discretion responsibly and impartially.
13. It is noted that 6 of the accused have
been charged for offences that allegedly took place between March and December
2014. But prosecutors did not see it fit to charge them soon after the alleged
offences had been committed. 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.
14. The charges relating to the other 6
accused concern offences allegedly occurring in January and October 2019. But
by this time, 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.
15. Section 95 of the Penal Code deals with
acts causing slight harm. It provides:-
“Nothing is an offence by reason that it
causes, or that it is intended to cause, or that it is known to be likely to
cause, any harm, if that harm is so slight that no person of ordinary sense and
temper would complain of such harm.”
[my emphasis]
16. Section 95 emphasizes “harm”: thus, a
victimless offence or one which “harms” no one should be treated with caution
by prosecution.
The 34 Charges
17. Initially the focus was on SOSMA because
the accused were arrested and detained pursuant to the procedures laid out in
SOSMA. However, as their trials are approaching, the prosecution has to turn to
the Penal Code which contains the provisions under which the offences forming
the basis of the charges are found. The 12 persons charged for terrorist acts
face a total of 34 charges, which can be broken up into the following 5
categories of offences:-
(i) 6 charges for “giving support” to LTTE in
an event;
(ii) 13 charges for “giving support” to LTTE
using social media;
(iii) 13 charges for “possession” of items
associated with LTTE;
(iv) 1 charge for “distribution” of items
associated with LTTE; and
(v) 1 charge for “display” of an item
associated with LTTE.
The expressions “giving support”,
“possession”, “distribution” and “display” are defined in the Penal Code.
18. Section 130J(1) of the Penal Code makes it
an offence if a person “gives support” to –
(a) any terrorist group;
or
(b) the commission of a terrorist act.
Section 130J(2) lists numerous examples of
“giving support” including: “using the social media or any other means to –
(i) advocate for or to promote a terrorist
group, support for a terrorist group or the commission of a terrorist act;
or
(ii) further or facilitate the activities of a
terrorist group”
19. Section 130JB(1) of the Penal Code makes
it an offence for anyone who–
(a) has possession, custody or control of;
or
(b) provides, displays, distributes or sells
any item associated with any terrorist group
or the commission of a terrorist act.
What is a “Terrorist
Group”?
20. Section 130B(1) of the Penal Code defines
the term “terrorist group” by cross-referring to provisions in another Act,
namely, Section 66B of the Anti-Money Laundering, Anti-Terrorism Financing and
Proceeds of Unlawful Activities Act 2001. Section 66B(1) of that Act empowers
the Minister of Home Affairs, if he is satisfied on information given to him by
a police officer, that “an entity has knowingly committed, attempted to commit,
participated in committing or facilitated the commission of, a terrorist act”,
may, by Order published in the Gazette, declare the entity to be a specified
entity, and therefore a terrorist group.
21. However, an Order made under Section
66B(1) by the Home Minister that an entity is a terrorist group is not meant to
be permanent or enduring. Parliament recognizes that, over time, a group that
uses violence to achieve its purposes may change or adapt by eschewing violence
and accepting peaceful methods of change. History is replete with such
examples. Section 66B(9) therefore provides that the Minister shall review his
Order “every 6 months whether there are still reasonable grounds for any such
order to continue to apply to a specified entity”, and if the Minister
determines that there are no such reasonable grounds, he shall immediately
revoke the Order previously made.
22. 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. Parliament has used the expression “reasonable grounds”, thereby
indicating an objective standard reviewable by the Courts if a legal challenge
is made. It is not a subjective standard based on whims. One domestic and one
foreign example come to mind of how military/political organizations evolve
over time. If the Malayan Communist Party (“MCP”) is declared in 2020 to be a
“terrorist group” under Section 66B(1), it would be a wrongful exercise of
statutory power because as a matter of fact the Malaysian Government signed a
Peace Treaty with the MCP in 1989 in Hat Yai, and it is long defunct. In
Ireland, the Sinn Fein initially supported the IRA in its military objectives,
but over time became a normal political party which gave up its violent struggle
to secure power. Its electoral support from the ballot box in the recent Irish
general elections were impressive. Any decision by a Malaysian Minister in 2020
to declare Sinn Fein a “terrorist group” would likewise be an error in law.
23. LTTE was declared a terrorist group by the
Minister of Home Affairs by an Order gazetted on 12 November 2014. 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.
What is a “Terrorist
Act”?
24. A “terrorist act” is defined in Section
130B(2) of the Penal Code to mean an act or threat of action in Malaysia or
elsewhere which meets one or more criteria in Section 130B(3) and which
expressly does not fall within the exclusion provided in Section 130B(4). The
criteria listed in Section 130B(3) make it clear that terrorist acts or threats
of action are contemplated to be grave and serious in nature. Examples include
acts that cause death(s) and the use of firearms and explosives. The exclusion
provided in Section 130B(4), on the other hand, makes it clear that acts of
advocacy, protest, dissent or industrial action which are not intended to cause
death, serious injury or risk to public safety are not terrorist acts or
threats of action. Simply put, peaceful acts are not terrorist acts.
25. The exclusion provided by Section 130B(4)
reflects Parliament’s recognition of fundamental constitutional rights,
including the right to free speech and expression and the right to freedom of
association and assembly. 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.
DECISION
26. It is commonplace to have idols to whom
hero worship is displayed. It is not just pop stars, sportsmen or actors who
are admired: historical personalities and politicians are often the subject of
adoration. Thus, millions of people across the globe admire Lenin, Stalin, Mao
Tse Tung or Che Guevara, and the like. Having their photos and other
representations in one’s mobile phone or on a Facebook account does not
transform one to being a terrorist. Just because each of these leaders used
terror or violence to achieve their political goals does not mean that an
ardent supporter online should be regarded as a terrorist or is planning a
terrorist act.
27. That is the common theme of all the 12
LTTE accused. 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. But even if there were elements of a “terrorist act” on the
part of all or any of the 12 LTTE accused by possessing, distributing or
displaying such photos or Prabhakaran, it would be impossible for the
prosecution to establish that they do not fall within the excluded category of
Section 130B(4) of the Penal Code in that they merely constitute “advocacy,
protest or dissent”.
28. For these reasons, I have decided that
there is no realistic prospect of conviction for any of the 12 accused on any
of the 34 charges. Accordingly, in the exercise of my discretion pursuant to
Article 145(3) of the Federal Constitution, I have decided to discontinue
proceedings against them with immediate effect.
Tan Sri Tommy Thomas
Public Prosecutor/ Attorney General
Feb 21,2020
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