.jpg "Suspected Liberation Tigers of Tamil Eelam sympathisers are escorted to the Kuala Lumpur High Court October 31, 2019. u00e2u20acu201d Picture by Ahmad Zamzahuri")
KUALA LUMPUR, Oct 31 — A total of 12 individuals were charged separately in five states on Tuesday with supporting and possession of items related to defunct Sri Lankan terror group Liberation Tigers of Tamil Eelam (LTTE).
Those accused included Seremban Jaya assemblyman P. Gunasekaran and Gadek assemblyman G. Saminathan.
Two more were charged in Kuala Lumpur today.
According to the charge sheets, all were variously accused of committing an offence under Chapter VIA: Offences Relating to Terrorism of the Penal Code framed under Section 130JB(1)(a) and Section 130J(1)(a) of the Act.
All of the accused were also tried under the Security Offences (Special Measures) Act (Sosma).
Having trouble understanding? Worry not. Below is Malay Mail’s quick guide to the terror-related criminal offences these men were charged with that were read together with the provisions of Sosma.
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Sections 130JB and 130J of the Penal Code
Section 130JB(1)(a) stipulates the crime of possession, custody or control of; or any item associated with any terrorist group or the commission of a terrorist act.
According to the law, “item” includes publications, visual recordings, flags, banners, emblems, insignia and any other thing displaying symbols associated with a terrorist group, terrorist act or ideology of a terrorist group.
If found guilty, the accused can be sentenced to jail for a maximum of seven years, or a fine and can have any of their properties used in the offence confiscated.
Meanwhile, Section 130J(1)(a) stipulates the crime of knowingly and in any manner solicits support for, or gives support to any terrorist group.
If found guilty, the accused can be sentenced to jail for life or for a maximum of 30 years, or a fine and can have any of their properties used in the offence confiscated.
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Why was bail refused? Where does Sosma comes in?
All of the accused were tried under Sosma, but what does it mean to be tried under the Act?
For starters, both offences under Chapter VIA: Offences Relating to Terrorism of the Penal Code are unbailable, meaning the court cannot exercise its discretion at all and must refuse bail outright.
This is provided under Section 13(1) of Sosma, whereby bail must not be granted to a person who has been charged with a security offence.
So what constitutes a security offence?
According to the interpretation of the Act, security offence is defined as the offences specified in the First Schedule of the Act, that are offences under — Chapter VI: Offences Against the State; Chapter VIA: Offences Relating to Terrorism; and Chapter VIB: Organised Crime — of the Penal Code.
But wait, how exactly does Sosma function in all this?
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Speaking to Malay Mail, lawyer New Sin Yew explained that there are three different types of laws at work in a typical criminal case.
Breaking down further, the three categories are — law which sets out the offence, law that sets out the procedure for the criminal trial and a law that sets out the law on evidence.
In normal circumstances, New said usually it is the Penal Code for offence, the Criminal Procedure Code for procedure and the Evidence Act for evidence.
“All three governs different aspects of the criminal trial process. For Sosma, it’s unique in the sense that for terrorism offences, the procedure and the evidence law is different from a normal criminal offence.
“This is because Sosma itself sets out a different procedure and different law on evidence,” he said.
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New pointed out that Sosma meant to be procedural — meaning the court applies the procedure under Sosma — and that punishment of the offence is contained within the Penal Code.
This, he explained was why bail was outright disallowed by the Sessions Court as stipulated under Section 13(1) of Sosma, despite lawyers pleading for bail on behalf of their clients.
Earlier, the prosecution also said the Sessions Court — where the charges were filed — did not have the authority to rule on decisions made under Sosma.
That is true because under Section 12 of Sosma, all security offences are to be tried at the High Court — meaning all of the accused will go on trial and make their plea at the High Court.
Since bail is refused, the accused must remain in custody until the conclusion of their trial.
The prosecution may also apply for the transfer all of the cases to be tried at the High Court as they have the prerogative to do so.
