POLICE’S unrestrained use of the Security Offences (Special Measures) Act 2012 (Sosma) against alleged Liberation Tigers of Tamil Eelam (LTTE) sympathisers is socially terrorising, and in terms of the law, illegitimate.

Counterterrorism officers have picked up 12 men of Indian ethnicity in the crackdown. The grounds for the arrests, as stated by Bukit Aman Special Branch Counterterrorism Division chief Ayob Khan Mydin Pitchay, include suspicion 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, and 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 the two criminal procedures is that Sosma detainees are more vulnerable to physical and mental torture by police during their 28-day remand period. According to Suaram, oftentimes during remand, detainees are kept in solitary confinement in constantly lit cells, subjected to prolonged interrogation on a daily basis and denied basic amenities. In 2018 alone, under Sosma, there were 85 arrests for terrorism, 18 relating to trafficking and immigration, and 116 for other criminal offences, amounting to a total of 219 arrests.

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

Two questions should be asked towards this end: are the measures against the alleged LTTE sympathisers necessary to maintain domestic peace and security, and are 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 be strict and objective. Alarmingly, the extent to which 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, and it is not a technical, legal term. Legal reasonings founded on this notion are frivolous conjectures. In their pursuit, police have conveniently disregarded the fact that LTTE is a defunct organisation.

In fact, in 2017, the European Court of Justice ruled that LTTE should be removed from the European Union’s terrorism list, reason being that LTTE posed no risk of carrying out attacks after its military defeat in 2009, and so, the terrorist activities that initially justified its domestic listing had ceased to exist.

In consideration of this fact, the imminence of any related terrorist threat by Malaysian sympathisers is highly questionable. These detainees were charged with supporting LTTE through social media platforms including YouTube, distributing LTTE-linked materials and possessing LTTE-linked items. On the basis that there is no immediacy of the organisation going operational, and the absence of any concerted and conspicuous pattern by local sympathisers to assist in the revival of LTTE, by what stretch of the law is Sosma necessary in this case?

Without a legal necessity for Sosma, its use only serves to exaggerate the alleged threat posed by the detainees. The narrative stimulated by the government distorts the reason for the detainees’ sympathy for the defunct group and their allegiance to a Tamil identity. With the Tamil diaspora, their sympathy is not the glorification of LTTE’s criminal acts, but support for the right to self-determination of a people oppressed and discriminated against by the ruling state. It is a 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 are proportional, it is imperative to draw the line between threats justifying the charge of 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 on what qualifies as security offences.

Under Chapter VIA of the Penal Code, Section 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. Police must have some notion as to its scale and effects, and have evidence towards this end. Taking a cumulative account of all the actions of the alleged sympathisers, to even discover any nexus between them and their acts having a propensity towards terrorism, appears to be an increasingly absurd task. Therefore, on whether the Sosma measures are proportional – it makes no sense to answer in the affirmative when the Criminal Procedure Code exists, and when the charges levelled at the detainees are in relation to a defunct group.

On this premise, the use of Sosma – a rhetorical, illegitimate device designed by the government to legitimatise the weakening of the constitutional protection of human rights – only increases interracial tensions, imposes pressure on political parties, and is driven by political considerations. This crackdown, with the use of the act, is a patent violation of domestic law. It is evidence 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, the government’s support of this crackdown is, in the least, damning. – November 3, 2019.

*Anusha Arumugam reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.