If the whole LTTE episode is a farce, tell it to the AG

I agree with Dennis Ignatius that the continued detention of 12 Malaysians on charges of supporting the Liberation Tigers of Tamil Elam (LTTE) is an issue that is of no less importance, especially when it is “one that challenges the very notion of Malaysia as a democratic nation (and) has been allowed to play out without the outrage that it rightly deserves”.

But I would like to take issue with Dennis on several matters that were raised by him.

Firstly, Dennis suggested that the 28-day detention under the Security Offences (Special Measures) Act (Sosma) is a detention without trial. No, it is not. The 28-day detention, after the initial 24 hours following arrest, is for the purpose of investigation.

This is clearly stated in Section 4(5) of Sosma. Such a detention is generally referred to as detention pending investigation.

In other jurisdictions, it is called pre-charge detention. It refers to the time between arrest and being brought to court to be charged, or until release.

Pre-charge detentions primarily are for police to investigate the case and secure sufficient evidence for use in criminal proceedings.

Why 28 days? It is said that terrorism cases require a longer period of pre-charge detention because of the complexity in investigating terrorism cases, the difficulty in obtaining admissible evidence, and the importance given to protecting the public from terrorist attacks.

The complexity of terrorism cases includes the use of encrypted data; voluminous quantities of material; data from cellular telephones; multiple false identities; forensic science delays; difficulties when a large number of suspects are held together; and the cumulative impact of all the above issues. [see “Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post-Charge Questioning, 2007-08, Cm 7215: http://www.official-documents.gov.uk/document/cm72/7215/7215.pdf]

Much as one – including Dennis perhaps – may wish to disagree, investigations into security and terrorism offences call for separate powers of arrest and detention from normal procedural law, which in Malaysia is contained in the Criminal Procedure Code (CPC).

This special power has been described as one of the most important powers made available to the police. The exercise of such power can “have both a disruptive and preventative impact on any terrorist plans that may be in process”.

Secondly, Dennis referred to “a previous ruling (where) a judge had held that Sosma was unconstitutional”. No, the judge —Justice Mohd Nazlan Mohd Ghazali —did not hold that Sosma was unconstitutional.

It was only Section 13 of Sosma, which denies bail to those charged with terrrorism-related offences, that was held to be unconstitutional.

But another High Court judge, Mohamed Zaini Mazlan, has disagreed with the argument that Section 13 of Sosma is unconstitutional.(https://www.freemalaysiatoday.com/category/nation/2020/02/10/no-bail-for-those-facing-terror-related-charges-rules-high-court/)

It follows that security offences are unbailable — not just non-bailable — where bail will not be allowed as the court has no discretion to grant bail.

A High Court judge is not bound by the decision of another High Court judge. However, the judge may do so as a matter of judicial comity, that is, out of deference and respect.

It seems that Zaini has chosen not to be bound by the decision of his fellow judge – which he is entitled to.

Thirdly, Dennis — and many others — has taken issue with the home ministry for insisting that the LTTE still remains a terrorist organisation and is a threat to national security.

Malaysia is not alone on this. Canada, the United Kingdom and the European Union are among jurisdictions that have continued to list LTTE as a terrorist organisation under their respective legislation, empowering the authorities to establish a terrorist list of persons or organisations.

LTTE’s leader Velupillai Prabhakaran may be dead. Its leadership may be completely decimated and its infrastructure dismantled. As Dennis put it, the LTTE “cannot be any ‘deader’ than that, a fact that even the international community has long recognised”.

But the LTTE remains on the list of proscribed terrorist organisations in Malaysia, Canada [https://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/lstd-ntts/crrnt-lstd-ntts-en.aspx], UK [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/849493/20191101_Proscription__SG_.pdf] and EU [https://eur-lex.europa.eu/legal-content/en/TXT/HTML/?uri=CELEX:32019D1341&from=en], among others.

In Malaysia, the proscribed list is made pursuant to Section 66B of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUA) which empowers the home minister to declare an entity to be a “specified entity”.

This refers to an entity which has “knowingly committed, attempted to commit, participated in committing or facilitated the commission of, a terrorist act”.

Since LTTE is a specified entity under Section 66B, it is a terrorist group pursuant to Section 130B of the Penal Code (Chapter VIA — Offences Related to Terrorism).

Dennis may consider this whole LTTE episode “as a travesty of justice (that) has gone on long enough”. But it has gone on that long because the public prosecutor, aka attorney-general (AG), has maintained the charges against the 12 men.

If there is no proof that the men had supported the LTTE financially, and that the case against them is politically motivated, then a representation should be made to the AG who has the power, exercisable at his discretion, to institute, conduct or discontinue any proceeding for an offence under Article 145(3) of the Federal Constitution.

Simply put, if the whole LTTE episode is a farce, tell it to the AG.

If the AG has to date not discontinued the prosecution against the 12 men, then the sufficiency of the evidence test to prosecute must have held its ground.

It is imperative that the AG exercise the powers at his discretion and not at the behest of the executive. Otherwise, the separation of powers between the various branches of government would not be upheld.

This would challenge the very notion of Malaysia as a democratic nation.

Hafiz Hassan is a reader of FMT.