Ensure sufficiency of evidence before charging anyone - AG discontinues cases of 12 charged with LTTE related crimes

Media Statement – 21/2/2020

Ensure sufficiency of evidence before charging anyone - AG discontinues cases of 12 charged with LTTE related crimes

Repeal SOSMA and ensure justice for ALL SOSMA victims

MADPET(Malaysians Against Death Penalty and Torture) notes that the  Attorney General’s Chambers (AGC) today announced that the government is discontinuing prosecution of 12 Malaysians it had charged with supporting the Liberation Tigers of Tamil Eelam (LTTE), which included two DAP lawmakers. (Malay Mail, 21/2/2020).

The Attorney General was reported saying that decision was made ‘under my discretion pursuant to Article 145(3) of the Federal Constitution’. Attorney General Tan Sri Tommy Thomas said the decision was made after finding insufficient evidence to back its prosecution that would lead to a “realistic prospect of conviction”.

The 12 men were detained on Oct 10 and 12 in various parts of the country. On or about the end of October 2019, they were charged in court but bail was denied on the basis of these offences were listed as ‘security offences’ Under Security Offences (Special Measures) Act 2012(SOSMA). 

Section 13(1) SOSMA states that’ Bail shall not be granted to a person who has been charged with a security offence.’ Thereafter, one High Court judge decided that this section was unconstitutional, and said the accused had a right to apply for bail. Recently, another High Court judge decided that there is no right to bail. All these would not have happened if Parliament had repealed SOSMA, when Pakatan Harapan won the elections and formed the government in May 2018.

The arrest, detention and the denial of bail of these 12 SOSMA victims have received much attention by the media and the Malaysian public.

The current Pakatan Harapan government, who in their last Election Manifesto had ‘promised’ to repeal and/or remove the draconian and unjust provisions in SOSMA, but to date, after more than 20 months have failed to do so.

MADPET, although the news is good, is concerned whether the decision to discontinue proceedings against these 12, including 2 Pakatan Harapan State Assemblypersons, may have taken in ‘political’ considerations. It would have been better if the decision was to discontinue proceedings against all others (or some others), and not just this 12, many of whom are linked to a PH political party, who now being tried for SOSMA defined ‘security offences’, who are languishing in detention because the right to bail is denied.

AG or government discontinued proceedings?

The media report said that the AG ‘announced that the government is discontinuing prosecution’, and as such the question arises whether the decision of AG in this matter was independent, or was it as instructed by the government. Did the AG do as requested or desired by the government of the day?

We recall with unhappiness when the former AG also chose to not charge former Prime Minister Najib, in relation to alleged offences connected to the 1MDB and SRC, whereby now the new AG has charged Najib and others and trials are ongoing.

Hence, the role and actions of the Attorney General (who is also the Public Prosecutor), particularly his/her independence, need to be looked at and reformed accordingly.

Art 145(3) of the Federal Constitution states that ‘The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.’

There may be a need for new laws to clarify these powers of the Attorney General, to ensure that any AGs will not exercise these powers for any wrong reasons, be it political expediency or otherwise. The new law should also give others, being not just the actual victims but also any other concerned Malaysian the power to challenge the AG’s decision.

This discontinuing of proceedings against the 12 may reduce public discussion on SOSMA, but it should in no way delay the repeal of SOSMA and/or the removal of draconian provisions in SOSMA.

Longer Remand for Investigations Maybe Justified But Not Right to heard during remand applications

Whilst there may be a justification for a longer permissible remand period for the purpose of investigation for certain offences, the right to be brought before a Magistrate within 24 hours, and the right to heard by the Magistrate before further remand orders are granted must not be compromised. Further remand for investigation should be only by way of a remand order by a Magistrate. The maximum period of remand for each application also needs to be restricted to not more 7 days, as it is now in our Criminal Procedure Code, as amended a few years ago.

Let’s not forget the presumption of innocence until proven guilty, and the purpose of bail is simply to ensure that the accused person turns up for his/her trial.

The right to Bail should be allowed for all accused persons. The admissibility of evidence and criminal procedure should be the same as for all other criminal trials. Bail amount should be reasonable and not punitive, which is discriminatory against the poor. Prevention of accused persons leaving the country, and even the holding of the passport.

The list of ‘security offences’ in SOSMA need to be diminished to just the most serious of all offences. Certain offences like offences on 'activity detrimental to parliamentary Democracy' offences (Chapter VI sections 124B - 124J of the Penal Code), which is vague ought to be repealed. Offences like possession of books, especially those not banned in Malaysia, should be repealed.

Criminal Compensation Will Ensure Justice to Victims of Administration of Justice

The 12, to date, has languished in detention for more than 4 months, and it is not just the deprivation of liberty and rights, but also would have impacted on one’s income and caused suffering to one’s family, including children. The Public Prosecutor ought not have even charged them in the very first place, as he has now acknowledged there is insufficient evidence and ‘…there is no realistic prospect of conviction for any of the 12 accused on any of the 34 charges…’

Compensation and damages may be a just remedy, rather than a simple remedy. MADPET urges the government to enact a law providing for just compensation for those who are detained or deprived of their liberty, in accordance to the law, but at the end of the day are not charged, acquitted by court and or had their proceedings discontinued by the Attorney General as has happened to these 12.

Repeal of SOSMA will not mean end of trials of those accused of crimes

MADPET reiterates the call for the immediate repeal of Security Offences (Special Measures) Act 2012(SOSMA).

The repeal of SOSMA will not impact on the charges, as all charged under ‘security offences’, as defined by SOSMA are in fact charged for offences under the Penal Code or other laws, and as such, their criminal trials will continue;

In the interim, MADPET calls for the repeal of Section 13(1) SOSMA that denies the right to bail, which is  a violation of the right to fair trial.

MADPET reiterates its call for the repeal of all draconian laws, including also laws like POCA and POTA that allow for Detention without Trial that denies victims their fundamental right to a fair trial.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

AG drops court cases against 12, including DAP reps, accused of supporting LTTE

Friday, 21 Feb 2020 03:59 PM MYT

BY DANIAL DZULKIFLY

Attorney General Tan Sri Tommy Thomas is pictured at the Kuala Lumpur High Court February 17, 2020. — Picture by Firdaus Latif

KUALA LUMPUR, Feb 21 — The Attorney General’s Chambers (AGC) today announced that the government is discontinuing prosecution of 12 Malaysians it had charged with supporting the Liberation Tigers of Tamil Eelam (LTTE), which included two DAP lawmakers.

Attorney General Tan Sri Tommy Thomas said the decision was made after finding insufficient evidence to back its prosecution that would lead to a “realistic prospect of conviction”.

“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,” he said in a statement.

Among those charged were Melaka state executive councillor G. Saminathan and a Negri Sembilan state lawmaker P. Gunasekaran.

The DAP duo along with 10 others were accused of posting social media messages or possessing materials related to LTTE founder, Velupillai Prabhakaran.

“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’,” Thomas explained.

He added that a show of support for famous or infamous personalities is common, but it does not necessarily dictate a person’s actions.

“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,” he said. - Malay Mail, 21/2/2020







Twelve allegedly linked to LTTE to be charged in court
Nation
Monday, 28 Oct 2019 9:26 PM MYT

By FARIK ZOLKEPLI





PETALING JAYA: Two DAP assemblymen and 10 other men detained for alleged links to the Liberation Tigers of Tamil Eelam (LTTE) are expected to be charged Tuesday (Oct 29).

Seremban Jaya assemblyman P. Gunasekaran and Gadek assemblyman G. Saminathan will be charged along with another man at a court in Ayer Keroh, Melaka.

Lawyer Harshaan Zamani confirmed that the two will be charged.

"We were informed that they will be charged in Ayer Keroh, Melaka," he said when contacted Monday (Oct 28).

Sources said nine other men, who were also detained for alleged links to the terror group are also expected to be charged at a later date.

Two will be charged in Kuala Kangsar, Perak, while the others in Johor, Kuala Lumpur, Selangor and Penang.

The 12 men were detained by the Counter Terrorism Division (E8) on Oct 10 and 12 in various parts of the country.

Sri Lanka was embroiled in a 26-year civil war between the LTTE and the Sri Lankan military, which saw around 80,000-100,000 people killed.

The civil war ended when Sri Lanka’s 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 is labelled as an illegal organisation in Malaysia.

In Malaysia, LTTE was labelled a terrorist organisation 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. - Star, 28/10/2019

Two Malaysian DAP assemblymen, 8 others charged over alleged links to Liberation Tigers of Tamil Eelam

A photo taken on Oct 12 shows Malaysian counter-terrorism police arresting a man said to be a symphatiser of the now-defunct Sri Lankan terrorist group Liberation Tigers of Tamil Eelam.PHOTO: MALAYSIAN POLICE

Published

Oct 29, 2019, 9:23 pm SGT

KUALA LUMPUR - Two Democratic Action Party (DAP) assemblymen and a businessman were charged in a Melaka court on Tuesday (Oct 29) over their alleged links to the now-defunct Sri Lankan terrorist group Liberation Tigers of Tamil Eelam (LTTE).

They were among 12 people detained under the Security Offences (Special Measures) Act (Sosma) after a crackdown three weeks ago on LTTE sympathisers.

Seremban Jaya assemblyman P. Gunasekaran, Gadek assemblyman G. Saminathan and businessman S. Chandru claimed trial to a charge under Section 130 of the Penal Code, which carries a sentence of life imprisonment or a maximum of 30 years or a fine, and forfeiture of any property used or intended to be used for the offence, if found guilty.

Saminathan also faces an additional charge of possessing items with elements of terrorist acts or connected to the LTTE. If found guilty, he faces up to seven years in jail or a fine, and forfeiture of any of the items.

Seven others were also charged on Tuesday in Selangor, Perak, Penang and Johor. No plea was recorded and all 10 were denied bail.

The Straits Times understands that the remaining two suspects are expected to be charged on Thursday in Kuala Lumpur.

Under Sosma, the authorities are allowed to detain a suspect for a maximum of 28 days without trial, after the initial 24 hours following the arrest.

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"They have used Sosma and made my husband look like a terrorist when he has not done anything," Ms M. Tamilmalar, the wife of one suspect A. Kalaimughilan, was quoted as saying by news portal Malaysiakini at the Selayang Sessions Court.

The arrests of the assemblymen have raised tensions within the ruling coalition Pakatan Harapan that includes the DAP, with claims and counter-claims over their alleged roles in raising funds for LTTE and trying to revive the group.

Opposition parties Umno and Parti Islam SeMalaysia (PAS) have criticised the DAP for becoming a breeding ground for radicals.

PAS has also called for a White Paper on the threat of LTTE elements in the country and for the arrested assemblymen to resign as "all Malaysians reject leaders involved in extremist, terrorist and militant activities".

The LTTE was a separatist group that had been active in Sri Lanka until it was officially defeated in 2009. It has been declared a terrorist group by 32 countries including Malaysia, which did so in 2014.

Police say they have been tracking LTTE's activities in the country since the 1990s and acted independently in the arrests.

Both Prime Minister Mahathir Mohamad and Home Minister Muhyiddin Yassin have denied any influence on the police probe into an alleged move in Malaysia to revive the LTTE. - Straits Times, 29/10/2019