Sympathy for Tamil identity isn’t terrorism

Police arrested and detained 12 people under the Sosma law last month.

The unrestrained use by Malaysian police of Sosma, the Security Offences (Special Measures) Act, on alleged sympathisers of Sri Lanka’s defunct Liberation Tigers of Tamil Eelam is socially terrorising and legally illegitimate.

Under the crackdown, police have picked up 12 men of Indian ethnicity.

Grounds for the arrest cited by Bukit Aman Counter Terrorism Division head Ayob Khan Mydin Pitchay include “those detained were suspected of promoting and supporting LTTE while securing funds for the terror group”.

Sosma, a procedural legislation, is triggered when there is a security offence, warranting detention without trial for 28 days. Detainees are, by default, denied bail with no discretion afforded to the trial judge.

They could potentially be incarcerated until the conclusion of all trial proceedings, including appeals. Sosma exists parallel to the Criminal Procedure Code, and as documented by Suara Rakyat Malaysia (Suaram), the difference between both criminal procedures is that detainees under Sosma are more vulnerable to physical and mental torture by the police during the 28-day remand period.

Suaram has documented that detainers in remand are often kept in solitary confinement in constantly-lit cells, are subjected to prolonged interrogation on a daily basis, and are denied basic amenities.

In 2018 alone, under Sosma, there were 85 arrests for terrorism, 18 relating to trafficking and immigration, and 116 arrests for other criminal offences, amounting to a total of 219 arrests.

These facts raise pertinent questions on the constitutionality, effectiveness and legality undergirding the Act. Particularly where the rule of law is meant to protect rights by ensuring that enforcement mechanisms of the state are not exercised arbitrarily and erratically, these drastic measures should only be used for the purpose of repelling the threat or to remove its consequences.

Two questions should be asked to this end: were these measures against the alleged LTTE sympathisers necessary to maintain domestic peace and security, and were the measures proportional to the alleged threat they posed?

Necessity here means that measures taken avowedly to counter terrorism must have been necessary for that purpose and been strict and objective. Alarmingly, the extent to which the police have perceived the necessity for Sosma has been marred by the government’s pursuit of the “war on terror”.

“War on terror” was first used by US president George W Bush following the 9/11 attacks; it is not a technical legal term. Legal reasonings founded on this notion are frivolous and just conjectures. In this pursuit, the Malaysian police have conveniently disregarded that the LTTE is a defunct organisation.

In fact, in 2017, the European Court of Justice ruled that the LTTE should be removed from the EU’s terrorism list for reasons that the LTTE pose no risk of carrying out attacks after its military defeat in 2009 and so terrorist activities which initially justified its domestic listing have since ceased to exist.

In consideration of this fact, the imminence of any related terrorist threat by Malaysian sympathisers is highly questionable.

The detainees were charged with giving support to LTTE through social media, by distributing LTTE-linked materials, possession of LTTE-linked items and giving support to LTTE on YouTube.

On the basis that there is no immediacy of the organisation going operational, the absence of any concerted pattern by the Malaysian sympathisers to assist in the revival of the LTTE is conspicuous: by what stretch of the law was the use of Sosma necessary?

Without legal necessity for the Act, the use of Sosma only serves to exaggerate the alleged threats posed by the detainees. The narrative stimulated by the government distorts the reason for the detainees’ sympathy for the defunct LTTE, and their allegiance to a Tamil identity.

For the Tamil diaspora, such sympathy is not the glorification of the LTTE’s criminal acts but an expression of their support for the right to self-determination of a people oppressed and discriminated against by the ruling state. It is the pledge to promote and protect Tamil culture, language and historical wealth.

Undeniably, every other Tamil would share this pledge because it intrinsically relates to the personal identification of Tamil ethnicity and culture.

With regard to whether the measures were proportional, it is imperative to draw the line between threats justifying the charge for terrorism; and related offences (if any) in servitude of self-determination and ideals of a separatist group. This is because the use of Sosma without further qualification is plain illegitimate.

Sosma itself does not define terrorism and refers to the Penal Code as to what qualifies as security offences. Under Chapter VIA of the Penal Code, S 130B (1) defines “terrorist” as any person who commits, or attempts to commit, any terrorist act; or participates in or facilitates the commission of any terrorist act.

A terrorist act under subsection (2) is the act done or the threat made with the intention of advancing a political, religious or ideological cause; the act or threat is intended or may reasonably be regarded as being intended to — (i) intimidate the public or a section of the public; or (ii) influence or compel the government of Malaysia or the government of any state in Malaysia, any other government, or any international organisation to do or refrain from doing any act.

Charges related to terrorism, therefore, carry serious gravity; petty wrongdoings simply cannot warrant its invocation. The police must have some notion as to its scale and effects and have evidence to this end. Taking a cumulative account of all the actions of the sympathisers, to even discover any nexus between them and their acts having a propensity towards terrorism appears to be an increasingly absurd task.

As to whether the Sosma measures were proportional: it makes no sense to answer in the affirmative when the CPC exists, and when the charges levelled at the detainees are in relation to a defunct organisation.

On this premise, the use of Sosma — a rhetorical, illegitimate device, designed by the government to legitimise the weakening of constitutional protection of human rights — only increases inter-race tensions, imposes pressure on political parties and is driven by political considerations.

This crackdown through the use of Sosma is a patent violation of domestic law.

It is evident that Sosma is incapable of being acutely regulated, having been recklessly used to justify pre-emptive police mechanisms. While the use of Sosma is grossly unjust, in the least, the support of the government for this crackdown is damning.

Anusha Arumugam read International Law at the University of Cambridge. - FMT