KUALA LUMPUR: The Attorney General's Chambers (AGC) has decided to drop all charges against 12 people who were accused of supporting the Liberation Tigers of Tamil Eelam (LTTE).
Attorney General Tan Sri Tommy Thomas said there were compelling reasons not to pursue charges against the accused, foremost of which was that "there is no realistic prospect of conviction" against any of them for the 34 charges they were facing.
"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 lengthy statement today.
Thomas said it was commonplace for people to have idols to which hero worship is displayed.
"It is not just pop stars, sportsmen or actors who are admired; historical personalities and politicians too 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.
Thomas said this was the exact common theme of all the 12 LTTE accused where each of them had in his mobile phone or Facebook account photos of slain LTTE leader V. Prabhakaran and other leaders of the terrorist organisation killed during the Civil War in Sri Lanka.
Thomas said if such conduct was constituted as 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’," he said.
It was reported that the 12 were charged on Oct 29, 2019 with supporting the LTTE. All of them have since been held in detention under the Security Offences (Special Measures) Act 2012 (SOSMA), and will face trials in the coming months.
Those charged included two DAP assemblymen – Seremban Jaya assemblyman P Gunasekaran and Gadek assemblyman G Saminathan.
Thomas started off his statement by giving a background of the LTTE, pointing out that the group was founded by Prabhakaran in May 1976 and was involved in armed clashes with the Sri Lankan state forces.
LTTE soon became the dominant Tamil militant group in Sri Lanka by the 1980s.
The clashes between both sides eventually saw more than 80,000 killed in the civil war that lasted 26 years.
The clashed only ended after President Mahinda Rajapaksa of Sri Lanka declared military victory over the group on 16 May 2009 after the rebels offered to lay down their weapons in return for a guarantee of safety.
With the end of the hostilities, 11,664 LTTE members surrendered to the Sri Lankan military in May 2009.
In august, 2011, Rajapaksa repealed the country’s stringent emergency regulations introduced in 2005 to deal with the LTTE threat.
He informed Parliament then that “from the time when terrorist activities ended in May 2009 until today, there have been no reports of any terrorist activities”.
Thomas also noted that 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.
He said the European Court of Justice had in October 2014, also annulled the anti-terrorism sanctions and several other restrictions placed by the European Union on the LTTE in 2006.
He added that in July 2017, the LTTE was removed from the terrorism blacklist of the European Union by the European Court of Justice for a 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," he said.
Thomas said LTTE has also never in its history carried out violent attacks in Malaysia, and as a Public Prosecutor, he has to conduct himself in a manner which will maintain, promote and defend the interest of justice.
He added that the AGC noted that six of the accused were charged with offences that allegedly took place between March and December 2014.
However, he said prosecutors did not see it fit to charge them soon after the alleged offences had been committed.
"It is against public interest that these six persons are tried in 2020 for offences allegedly committed six years ago. The passage of time is unacceptable for a case of this nature.
"The charges relating to the other six accused concern offences allegedly occurred 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," he said.
Touching on SOSMA, the AG said the focus was initially on SOSMA because the accused were arrested and detained pursuant to the procedures laid out in SOSMA.
However, he said 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.
Thomas pointed out that the LTTE was only declared a terrorist group by the Home Ministry on Nov 12, 2014.
However, he said one of the accused was charged with giving support and distributing items associated with LTTE in March and June 2014, which is before the 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 Nov 12, 2014 may be invalid or at least ought have been revoked following a Section 66B(9) review of the Order," he said.