Arrest, detention and release of ‘Tiger Twelve’ in Malaysia

Among those nabbed by counterterrorism personnel was a 28-year-old man who organised the annual ‘Heroes Day’ celebration in Kuala Lumpur and works as a secondhand items seller in Rawang

The LTTE was neither suspected nor linked to the most recent bomb attacks in Sri Lanka during Easter of 2019. The LTTE has never in its history carried out violent attacks in Malaysia

By
D.B.S. Jeyaraj

In October last year, twelve Malaysian nationals of Tamil origin were arrested by the Malaysian Police over suspected links to the Liberation Tigers of Tamil Eelam (LTTE) and alleged involvement in terrorist activity. Head of Malaysian Police Special Branch Counter-Terrorism Division, Deputy Commissioner Ayob Khan Mydin Pitchay went to town with claims of a huge terrorist conspiracy and network being uncovered. He said investigations were continuing and that more details of terrorist financing and a plot to attack the Sri Lankan High Commission in Kuala Lumpur would be available soon. 

All twelve were arrested and detained under the Malaysian Security Offences (Special Measures) Act 2012 known as SOSMA. However, they were charged in court for several offences relating to terrorism under the Malaysian Penal Code. Yet, five months later in February this year, when the trial date grew close, Malaysian Attorney General Tan Sri Tommy Thomas announced that he was dropping all charges against the dozen. Subsequently, all were discharged by court in what amounted to an acquittal. What began with an exultant bang had ended in a pathetic whimper. 

Why then did this Malaysian anti-terrorist drama about an alleged LTTE terrorist network and conspiracy capturing worldwide media attention fizzle out so soon in five months? Why did Malaysian law enforcement authorities that went cock-a-hoop initially change their stance and subsequently backtrack? Probing these matters journalistically in pursuit of answers provided an interesting insight into what seems to have happened in Malaysia. An interesting aspect in this affair is the connection with the September 4, 2016 attack on the then Lankan High Commissioner in Malaysia Ibrahim Sahib Ansar at the Kuala Lumpur International Airport. Some persons in the ‘group of twelve’ arrested and released by Malaysian officials were involved in the attack on the envoy then. This week’s column therefore will focus on these Malaysian matters. 

Malaysia, earlier known as the Federated States of Malaya, has been ruled from 1957 by the Parti Perikatan (Alliance Party) coalition and since 1973 by its successor, the Barisan Nasional (National Front) coalition. Together with its predecessor, Parti Perikatan, the Barisan Nasional (BN) Government served for 61 years and was one of the world’s longest serving governments. It lost power to the Pakatan Harapan (PH) coalition in the 14th general election held on May 9, 2018. Mahathir Mohamad who had retired from politics earlier returned to power and made history as a 92-year-old Prime Minister. 

Pakatan Harappan Coalition Government 
The Pakatan Harapan (PH) coalition government comprises the Democratic Action Party (DAP), People’s Justice Party (PKR),National Trust Party (Amanah) and Malaysian United Indigenous Party (Bersatu) with Sabah Heritage Party (Warisan) and the United Pasokmomogun Kadazandusun Murut Organisation (UPKO). The opposition consists of the National Front (BN), Pan-Malaysian Islamic Party (PAS), Sarawak Parties Alliance (GPS), Sabah United Alliance (GBS), Sarawak United Party (PSB) and a few other smaller parties. 

The Economist Intelligence Unit rated Malaysia a “flawed democracy” in 2016. However, Malaysia was a runner-up to the Economist 2018 ‘Country of the Year’ in 2018 due to the peaceful transfer of power following the 14th general election. There was much hope and progress after the regime change noticeably in the area of media freedom. There were also signs of a shift from divisive racist-religious political tendencies. 

Why then did this Malaysian anti-terrorist drama about an alleged LTTE terrorist network and conspiracy capturing worldwide media attention fizzle out so soon in five months?

One such sign was the appointment of eminent lawyer Tommy Thomas as Attorney General in 2018. Tommy Thomas, born in 1952 at Kuala Lumpur, read law at the University of  Manchester and graduated in 1973. He became a barrister (Middle Temple) in 1974. He also studied international relations at the London School of Economics, securing an MSc in 1975. Thomas was called to the Malaysian Bar in 1976. He practised as a lawyer and became a partner in a law firm in 1982. 

In 2000,Thomas started his own firm. Tommy Thomas regarded as an able constitutional lawyer with 42 years of practice was welcomed widely as the new Attorney General. The Malaysian Islamic Party (PAS) opposed a non-Malay, non-Islamic lawyer being the AG. PAS however couched its protest differently saying the objection was to a lawyer from the “unofficial bar” sans experience at the “official bar” being appointed as AG. Thomas is reportedly of Malayalee ethnicity. 

Although the country began moving away from the past towards becoming a “new Malaysia” after the 2018 election, there was stiff opposition at multiple levels by entrenched elements of the old order. Overt and covert resistance to Tommy Thomas as Attorney General continued. It was against this backdrop that the sudden arrests of twelve Malaysian nationals with suspected LTTE kinks occurred in October last year. Interestingly enough, Attorney General Tommy Thomas was away from Malaysia on a three-week vacation when Special Branch Counter Terrorism Division (E-8) Chief Deputy Commissioner Datuk Ayob Khan Mydin Pitchay struck. The counter-terrorism top cop who prefers to be called Ayob Khan is of Tamil Nadu heritage. His family name Mohideen Pichai is modified nowadays as Mydin Pitchay. 

Deputy Commissioner Ayob Khan Mydin Pitchay 
Special Branch Counter Terrorism Division officers of the Royal Malaysia Police led by Ayob Khan Mydin Pitchay swooped down on suspects with alleged LTTE links and arrested a dozen persons. There were two operations on October 10 and 12 last year. Seven persons were arrested on October 10 and five on October 12. Deputy Commissioner Ayob Khan Mydin Pitchay held two media conferences on October11 and 13 at Bukit Aman – the Royal Malaysia Police headquarters in Kuala Lumpur. The anti-terrorist top cop was in an ebullient mood on both days. It was as if he had unearthed a major conspiracy and nipped it in the bud. Media reports of that time indicated this vividly. Ayob Khan said arrests of the twelve were for their alleged involvement in promoting, supporting and sourcing funds meant for the now-defunct terror group Liberation Tigers of Tamil Eelam (LTTE). 

Addressing the media on the first day, Ayob Khan disclosed that two Malaysian  State legislators were among the seven persons arrested on October 10. They belonged to the Democratic Action Party (DAP). The two DAP lawmakers were G. Swaminathan, a Melaka State Executive Councillor and Negri Sembilan, assemblyman P. Gunasekaren. DAP has a predominantly Chinese membership. In recent times, it has begun attracting a lot of Indo-Malaysians too. Speaking about the arrests of Swaminathan and Gunasekaren, Ayob Khan said the two legislators were arrested for participating in an LTTE‘Heroes Day’ celebration in Melaka last year. “They attended the celebration on November 28 last year and delivered speeches that contained elements that showed support towards the LTTE. Both of them were also found to have leaflets and had distributed material at the event last year that were related to the LTTE,” he said. 

E-8 Principal Assistant Director Datuk Ayob Khan Mydin Pitchay too elaborated about the other five persons nabbed on October 10. Ayob said the other five suspects were arrested at locations within the capital Kuala  Lumpur, Rawang and Sungai Buloh in Selangor, Sungai Siput in Perak and Kulim Kedah. Among those nabbed by counterterrorism personnel was a 28-year-old man who organised the annual ‘Heroes Day’ celebration in Kuala Lumpur and works as a secondhand items seller in Rawang. “This suspect was also convicted for an offence where he was found to have injured a Sri Lankan High Commissioner at the Kuala Lumpur International Airport on September 4 and was previously fined RM10,000,” said Ayob. 

Speaking further, Ayob Khan said investigations showed the fourth suspect, a 38-year-old taxi driver arrested in Sungai Siput, had been convicted and fined RM10,000 along with a trader from Rawang for his involvement in causing hurt to the Sri Lankan High Commissioner in 2016. “The suspect had attended a covert meeting that was held in Sungai Perak aimed at recruiting and spreading LTTE propaganda in Malaysia,” he said, adding how materials related to the terror group was found in the cabbie’s possession. 

Ayob Khan revealed that another suspect, a 38-year-old insurance agent, was arrested in the capital where investigations showed he was planning to stage an attack on the High Commission of Sri Lanka in Kuala  Lumpur. He allegedly owned materials propagating LTTE ideology. The two remaining suspects, Ayob said, were a 28-year-old technician from Kulim and a 58-year-old eatery owner, nabbed in Sungai Buloh. The technician was arrested for allegedly supporting the LTTE and owning materials related to the terrorist group while the eatery owner was said to have supported and spread the group’s ideology through social media. 

Deputy Commissioner Ayob Khan held a second media meeting on October 13 to announce the arrest of five more suspected LTTE fellow travellers the previous day. He said they were taken into custody in central Melaka  State and northern Penang  State between 10:00 a.m. and 5:00  p.m. on October12. The five included a 53-year-old teacher, a Melaka city municipal councillor and a factory worker and security supervisor in Bukit Mertajam, Penang. “Those detained were suspected of promoting and supporting the LTTE while securing funds for the terror group.” The ones detained in Melaka were suspected of organising an LTTE“Warriors’ Day” celebration last year,” he said. 

Security Offences Special Measures Act (SOSMA)
All twelve were detained under the draconian Security Offences Special Measures Act (SOSMA) introduced in 2012. The Mahathir Mohammed headed coalition had promised in the 2018 election campaign to repeal SOSMA that was allegedly responsible in facilitating torture. When asked why the arrested persons were being detained under SOSMA, the counter-terrorist police chief replied: “They were detained under SOSMA to enable us to investigate further and seize crucial items pertaining to the investigation. If we merely recorded their statements, I believe they will give ‘superficial’ statements or the bare minimum,” he said. 

A stridently confident Ayob Khan Mydin Pitchay waxed eloquent in the two media conferences about what he proposed to do in the case. He also issued warnings in the form of advice and emphasised that action against the LTTE should not be confused with the plight of Tamils in Sri  Lanka. 

Furthermore, Ayob Khan said detailed investigations had begun in November 2018 following the ‘Heroes’ Day’ celebrations. He did not rule out the possibility of more arrests being made. “To the police, it does not matter who the individual is. Anyone found to be involved in terrorism activities, regardless of their political party, religion, race… if there is evidence that they are involved in terrorism activities, we will arrest them,” he said. “The police are not ruling out the possibility of more individuals being arrested to assist in the investigations if there is enough evidence.” 

Commenting on the purpose of activating the LTTE in the country, Ayob Khan said: “From what we can see, the pictures shown are LTTE images… this is not a matter of the Tamil rights struggle in Sri Lanka and so on. It is a struggle for promoting the terrorist group.” He reiterated that according to the laws of the country, the LTTE had been listed as a terrorist group since 2014, adding that it was also listed as a terrorist organisation in the United  States, India and Sri  Lanka. 

In this regard, Ayob Khan advised all parties to stop making statements that could affect the investigation process and public perception. However, he pointed out that there were no restrictions on individuals or parties that wanted to voice their personal views, but it would be a mistake to support, promote or raise funds for the LTTE terrorist group. Speaking further, Ayob Khan said: “Those involved in supporting, promoting or securing funds for terror groups will be arrested regardless of their political affiliation or race. “We are going to follow the money trail and see where funds were transferred to and from. We believe large sums were transferred among those detained but we are not ruling out the involvement of others.” 

Storm of protest over “Tiger Twelve” arrests 
Notwithstanding the enthusiasm and confidence of Deputy Commissioner Ayob Khan, the sudden arrest of “Tiger Twelve” and their detention under the dreaded SOSMA anti-terrorist regulations, resulted in a storm of protest in different ways. Apart from family members of the arrested persons, several others including political party members, human rights activists, lawyers, media personnel and community organisation representatives began protesting and agitating in different ways. There was much resentment and concern over the arrests. 

As mentioned earlier, all twelve persons had been arrested under SOSMA and were being detained in the Sungai Buloh prison. The names, ages and occupations of the so-called “Tiger Twelve” were as follows:  
1. P. Gunasekeren (61) - Seremban Jaya assembly Legislator (DAP) 
2. B. Subramaniam (58) - Businessman 
3. Sundram Renggan (53) - Teacher 
4. V. Suresh Kumar (44) - City Councillor (PKR) 
5. S. Theeran (39) – Dispatch Rider 
6. S. Chandru (38) - Chief Executive Officer (Melaka Green Technology Corporation) 
7. V. Balamurugan (38) - Taxi Driver 
8. G. Saminathan (35) - Gadek Assembly Legislator (DAP) 
9. M. Poomugan (30) - Security Guard 
10. A. Kalaimughilan (29) – Scrap Metal Purchaser 
11. S. Aravinthan (28) Technician 
12. S. Thangaraj (27) – Storekeeper 

Although the country began moving away from the past towards becoming a “new Malaysia” after the 2018 election, there was stiff opposition at multiple levels by entrenched elements of the old order

It could be seen therefore that three of the arrested persons were politicians – two State legislators and a municipal councillor – belonging to the Democratic Action Party (DAP) and People’s Justice Party (PKR) which were constituent members of the ruling coalition government. One of the arrested legislators was a deputy chairman of DAP. DAP is basically a party representing the Chinese community, but in recent times, large numbers of Indian origin Malaysians were also flocking to the party. The Indo-Malay community with 2.1 million people comprises 7% of the population. Of these, the 2017 census says 1.796 million are Tamils while 170,000 are Malayalees. The arrest of DAP Tamil legislators was not known to DAP leaders in the ruling regime. This upset the DAP leadership considerably. 

Although the Democratic Action Party leadership was predominantly Chinese, the party hierarchy as well as membership stood by the Malaysian Tamil community and protested most vehemently to Prime Minister Mahathir Mohammed. DAP leaders began talking of a conspiracy within government circles to weaken the party. This compelled Malaysian Prime Minister Mahathir Mohamad to tell Sun Daily News: “The government wants to know why this matter is happening. We don’t like to use power to weaken any quarter.” 

Malaysian Home Minister Muhyiddin Yassin
It soon became apparent that the ‘Tiger Twelve’ arrest operation had been kept a closely-guarded secret without the Prime Minister and many government ministers knowing beforehand. The operation masterminded by Deputy Commissioner Ayob Khan had been given the green light by Malaysian Home Minister Muhyiddin Yassin. When this became known, much criticism was levelled against Yassin and Ayob Khan. There were accusations of the entrenched “Deep State” in Malaysia trying to break up government unity and foment ethnic animosity by this action. The Home Minister was asked to resign by some. Others pressured the PM to sack him. 

Yassin defended himself saying the LTTE had been classified as a terrorist organisation in Malaysia under Section 66B(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act of 2001. The Home Minister said the LTTE had been listed as a terrorist organisation since November 12, 2014. “The listing of entity is based on latest intelligence and security information received from the authorities including the police and other monitoring agencies,” said Muhyiddin Yassin. 

Elaborating further, the Malaysian Home Minister said: “Based on latest information received from the authorities, I as the Home Minister have strong grounds to maintain listing the LTTE as a terrorist organisation. The LTTE posed a threat to public safety and national security. Therefore, it is the responsibility of the authorities to take action according to the law to prevent the spread of ideologies and activities related to this group.” 

Although the Home Minister maintained a tough stance on the issue, other constituents of the government, notably DAP, refused to toe the line. Senior DAP leaders began criticising the action openly. There were also accusations of ethnic discrimination and double standards against law authorities notably the counter-terrorist police chief Ayob Khan. Several Malaysians of the Islamic faith had joined the Islamic State and fought in the Middle  East. They were now returning or being returned to the country after the fall of the Caliphate. The IS members were being charged under ordinary laws and given comparatively light sentences. Some were being rehabilitated. In the case of suspected LTTE activists, the treatment was different. They were being held under the draconian SOSMA. 

Democratic Action Party Senior Leader Lim Lip Eng
Kepong MP and Democratic Action Party Senior Leader Lim Lip Eng questioned why the police, while charging former Islamic State (IS) fighters now back in Malaysia under ordinary laws, were denying the 12 suspects with alleged ties to LTTE the right to a fair trial. Eng said Ayob Khan had seemingly applied a “different treatment” to the latter by detaining the 12 suspects under SOSMA. Eng called Ayob’s actions “a glaring double standard.” Issuing a statement, Eng asked why Ayob Khan showed glaring double standard and was two-faced in his actions on the suspected Malaysian terrorists in Syria and the alleged LTTE supporters in Malaysia. 

Pointing to claims made by the Police Deputy Commissioner in his press conferences, Eng opined: “Ayob Khan said the police have evidence in the form of items and financial transactions to support the detention. The existence of such “strong” evidence should prompt the police to charge the 12 suspects in court immediately. Ayob Khan has to explain why he denied the latter the right to bail and to be a trial in a criminal court.” Queried the senior DAP leader and lawmaker: “Who made Ayob Khan the judge and jury over 
suspected terrorism?” 

A clearer picture about the politics behind the arrests began to emerge gradually. It was suspected that a “cabal” with vested interests including politicians, police officers and AG department officials had executed a “surgical strike” to arrest LTTE supporters on charges of suspected terrorism and immediately detain them under provisions of SOSMA. It was done without the knowledge of the Attorney General at a time when the AG was on vacation. Thus, the suspects were arrested and held under SOSMA without sufficient evidence to back up such action. AG Tommy Thomas had been presented with a “Fait Accompli.” 

No evidence to charge for major terrorist offences 
As Bard Robert Burns observed, the best-laid plans of men and mice do go awry. In spite of detaining and interrogating the 12 suspects under SOSMA, the Malaysian authorities found themselves unable to procure tangible evidence to charge the suspects for major terrorist offences. At the same time, the Mahathir Mohamed Government was undergoing intra–government tensions over the arrests. 

More importantly, the government’s image was being eroded nationally and internationally. One of Mahathir’s election pledges was to abolish notorious laws such as SOSMA. Now, twelve Malaysian Tamil “suspects” were being held under the draconian SOSMA while acknowledged Malay Islamic State “terrorists” were being charged under ordinary laws. Contributing further to the government discomfiture was the relentless campaign conducted on behalf of the arrested persons. Habeas Corpus writs were filed, applications for bail were submitted, demonstrations were held, petitions were mounted, the spouses of arrested persons went on protest fasts. Furthermore, there were many newspaper articles and public statements critical of the government on this matter. 

Against this backdrop, the prosecution had to file indictment without delaying.Although the twelve LTTE suspects were arrested and detained according to procedures laid out in SOSMA, the prosecution had to turn to the Penal Code containing the provisions under which the offences forming the basis of the indictment could be framed.The 12 persons charged for terrorist acts faced a total of 34 charges in all. The charges under Section 130 of the Malaysian Penal Code could be classified under five categories of offences. They were: 
(i) 6 charges for “giving support” to the LTTE in an event  
(ii) 13 charges for “giving support” to the LTTE using social media  
(iii) 13 charges for “possession” of items associated with the LTTE 
(iv) One charge for “distribution” of items associated with the LTTE 
(v) One charge for “display” of an item associated with the LTTE  

Malaysian Attorney General Tommy Thomas
It was easily discernible that the bombastic claims of Ayob Khan at the time of the arrests were not borne out in the charges under the Penal Code. To many, the charges seemed flimsy and “unworthy” of being described as terrorist. As the trial dates drew close, Malaysian Attorney General Tommy Thomas dropped a bombshell on February 21. The AG announced that he was dropping all 34 charges against 12 individuals accused of supporting Sri Lanka’s LTTE. The AG said there was 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. The Malaysian Attorney General also issued an eleven-page statement explaining in detail his decision. Here are relevant excerpts:  

“On October 29, 2019, twelve 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 of 2012, otherwise known as SOSMA, and will face trials in the coming months. Founded in May 1976 by Velupillai Prabhakaran, the LTTE was involved in armed clashes against the Sri Lankan State forces and by the late 1980s 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. President Mahinda Rajapaksa of Sri  Lanka declared military victory over the Tamil Tigers on May 16, 2009. The rebels offered to lay down their weapons in return for a guarantee of safety. On May 17, 2009, the LTTE’s head of the International Relations Department, Selvarasa Pathmanathan conceded defeat, saying in an email statement: “this battle has reached its bitter end.” With the end of the hostilities, 11,664 LTTE members surrendered to the Sri Lankan military in May 2009. 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 activity.” Independent reputable publications issued by UNHCR, the US Department of State and Janes Defence Weekly confirmed that the LTTE had ceased all activities in Sri Lanka by 2009. 

LTTE has never carried out violent attacks in Malaysia
The LTTE was neither suspected nor linked to the most recent bomb attacks in Sri Lanka during Easter of 2019. The LTTE has never in its history carried out violent attacks in Malaysia. 
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.” 

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 judgment, I must exercise discretion responsibly and impartially. 

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. 

The charges relating to the other 6 accused concern offences allegedly occurring in January and October 2019. But by this time, even if the 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. 

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.” Section 95 emphasises “harm”: thus, a victimless offence or one which “harms” no one should be treated with caution by prosecution. 

Supporting a terrorist group or act
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” 

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. 

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 of 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. 

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 recognises 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. 

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 court if a legal challenge is made. It is not a subjective standard based on whims. 

LTTE declared a terrorist group on November 12, 2014
The LTTE was declared a terrorist group by the Minister of Home Affairs by an order gazetted on November  12, 2014. One of the accused was charged for giving support and distributing items associated with the LTTE in March and June 2014, which were 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 the 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 the LTTE as a terrorist group on  November 12, 2014 may be invalid or at least ought have been revoked following a Section 66B (9) review of the order. 

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. 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. 

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. 

Common theme of all 12 LTTE accused
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 the 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.” 

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.” 

12 accused produced in court and discharged
The above excerpts sum up the AG’s reasons not to prosecute. Consequent to the Malaysian Attorney General’s decision all charges were dropped. The 12 accused were produced in court in stages and discharged. Thus ended the saga of the arrest, detention and release of ‘Twelve Tigers’ in Malaysia.  There was however an interesting development. Deputy Commissioner Ayob Khan has been transferred out as Chief of the Malaysian Police Counter-Terrorism Division which he headed for the past five years. Ayob Khan has been kicked upstairs as JohoreState Police Commissioner. 

D.B.S.Jeyaraj can be reached at [email protected]