MALAYSIA ADOPTS NEW ANTI-TERROR LAWS

S E C R E T SECTION 01 OF 04 KUALA LUMPUR 002108 SIPDIS SIPDIS STATE FOR S/CT, EAP AND DS/ATA E.O. 12958: DECL: 11/14/2016 TAGS: PTER PREL PINR KHLS ASEC MY SUBJECT: MALAYSIA ADOPTS NEW ANTI-TERROR LAWS REF: KUALA LUMPUR 1977 Classified By: POLITICAL SECTION CHIEF MARK D. CLARK, REASON 1.4 (B AND D). Summary -------------- ¶1. (C) Strong anti-terrorism provisions in Malaysia's Penal Code and Criminal Procedures Code will take effect January 1, 2007, following the early October finalization of amendments to these laws. Counterterrorism finance-related amendments to the Anti-Money Laundering Act, the Subordinate Courts Act and the Courts of Judicature Act are also expected to take effect as of January 1. Parliament originally passed the new anti-terrorism clauses in November 2003, but concerns over the vague definition of terrorism led to a lengthy review and further revision. The new provisions include clearer definitions of terrorism and related crimes, and stiff penalties, including a possible death sentence for committing terrorism and life in prison for material support to terrorists. Provisions allow for prosecution of terrorists who plan attacks outside Malaysia and plot against foreign governments. The Criminal Procedures Code grants police the power to arrest terror suspects without a warrant, allows authorities to use electronic surveillance, and permits the use of resulting evidence in court. Detention under the Internal Security Act does not exclude prosecution under the new anti-terror laws, according to a senior official in the Attorney General's Office. Senior Malaysian police officials have told some Western diplomats that the GOM will soon begin to use the new laws to prosecute terrorists, with the Police Criminal Investigative Division, rather than Special Branch, taking the lead role. We will watch closely how Malaysia chooses to use its new anti-terrorism instruments and whetherQhis situation opens up new areas for U.S. assistance. End Summary. Revision of 2003 Anti-Terror Provisions -------------- ¶2. (U) On October 5, Malaysia finalized amendments to the Penal Code and Criminal Procedures Code establishing strong anti-terrorism provisions. The Attorney General's Office informed us that the amendments will take effect as of January 1, 2007. The amendments represent revisions to anti-terror clauses originally passed in November 2003. The GOM did not enforce the 2003 provisions due to strong criticism from lawyers, opposition politicians and journalists who complained that the laws provided too broad a definition of terrorism and support for terrorism. The 2003 law expansively defined a "terrorist act" as an act which, among other things, seriously injured a person, endangered a person's life and any actions prejudicial to national security or public safety. This broad definition raised concerns over its potential misuse for prosecuting political dissent, labor protests, or non-terrorist actions. Critics argued that the law's approach to support for terrorism left open the possibility that attorneys preparing or carrying out suspects' legal defense could face criminal prosecution and severe penalties. Following protests, the GOM postponed enforcement of the law and decided to pursue amendments as part of a planned revision to the Penal and Criminal Procedures codes. The government established a seven-member parliamentary select committee comprising both government and opposition members of parliament in July 2004 to carry out a comprehensive study on amendments to the codes. ¶3. (U) Chairperson of the Select Committee (and Home Affairs Minister) Datuk Radzi Sheikh Ahmad told Parliament that the amendments to the Penal Code and the Criminal Procedure Code would pave the way for "Malaysia to accede to international conventions and to provide the Attorney General and the police special powers with regards to terrorist offenses." Minister Radzi acknowledged in Parliament that the 2003 definition of a terrorist act in the old law was "too wide." Following a two-year nationwide and foreign fact finding study tour, the Parliamentary select committee submitted its recommendations in Parliament in July 2006. The Parliament approved the amendments, which were completed with their publication in the official GOM Gazette on October 5 as the Penal Code Amendment Act A1273 and the Criminal Procedures Code Amendment Act A1274. KUALA LUMP 00002108 002 OF 004 ¶4. (U) Malaysia is also strengthening laws related to counterterrorism finance. Amendments to the Anti-Money Laundering Act, the Subordinate Courts Act, and the Courts of Judicature Act also have been passed and are expected to be enacted as of January 1, pending Ministerial Instruction. These additional amendments are designed to strengthen Malaysia's ability to fight terrorist finance and money laundering. The GOM has agreed in principle to accede to the UN International Convention for the Suppression of the Financing of Terrorism, and other terrorism-related conventions; these amendments are necessary to make that possible. ¶5. (U) Note: Prior to the amendments to the Penal Code and Criminal Procedure Code, Malaysia had no specific laws against terrorist acts. Instead, the government relied on Penal Code Section 121 "on waging or attempting to wage war against the King." End Note. Major Attributes -------------- ¶6. (U) The resulting Penal Code definition of a terrorist act has three main attributes, namely the intention of the act, the harmful nature of the act, and exclusions. In addition, the definition has extraterritorial aspects. The tighter definition derives particularly from stipulations regarding intention and exclusions. ¶A. Intention: A terrorist act is an act done or threat made "with the intention of advancing a political, religious or ideological cause." In addition, the act must be intended to "intimidate the public," or to "influence or compel" the Malaysian government or any other government or international organization to do or refrain from doing any act. ¶B. Harmful Acts: The list of qualifying acts or threats include: serious bodily harm and endangering life; creating risks to public health and safety; using firearms, explosives or other lethal devices; exposing the public to harmful substances; interfering with computer, communications and banking infrastructure along with other essential public services; disrupting essential emergency law enforcement and medical services; prejudicing national security and public safety; a certain aviation security offenses. ¶C. Exclusions: Specifically excluded from the definition of a terrorist act are "advocacy, protest, dissent or industrial action" if they are not intended to cause serious harm or create a risk to public health and safety. ¶D. Extraterritorial Aspects: Of note, the definition includes acts or threats "within or beyond Malaysia." In addition, as noted above, the intention of the terrorist act can be to influence or compel "any other government or any international organization" to carry out or refrain from doing any act. Investigative Powers -------------- ¶7. (U) The revised Criminal Procedure Code includes as Chapter XIIA "Ancillary Investigative Powers in Relation to Terrorism Offenses." These apply to a terrorist act or a "terrorism financing offense." These powers include arrest without warrant, the authority to intercept communications, and the admissibility in court of intercepted communications: ¶A. Arrest Without Warrant: Police may arrest without warrant any person who has committed or is committing a terrorist offense or if there are "reasonable grounds" to suspect a person of such crimes. ¶B. Intercepting Communications: The public prosecutor may authorize the police to intercept postal and any telecommunications messages if the prosecutor judges these "likely" to contain information regarding a terrorist offense. The prosecutor also may require communications service providers to intercept and retain specified communications and may authorize police to enter any premises to install interception devices. ¶C. Admissible in Court: Information obtained through such intercepted communications, whether before or after the KUALA LUMP 00002108 003 OF 004 filing of charges, is admissible as evidence in a suspect's trial. Stiff Penalties -------------- ¶8. (U) The revised Criminal Procedure Code provides for stiff penalties for terrorism and related offenses as noted in Chapter VIA. The Chapter notes 16 terrorism or terrorism-related offenses and respective punishments. These include six offenses under the "Suppression of Financing of Terrorist Acts." As the most serious offenses, "committing terrorist acts;" "directing activities of terrorist groups;" "providing or collecting property for terrorist acts;" and/or "providing services for terrorist purposes" can result in the death penalty, or imprisonment from 7 to 30 years. "Providing devices to terrorist groups" can lead to a life sentence or 30 years in prison. The maximum penalties for other activities in support of terrorism generally range from 7 to 30 years. ISA and the New Laws -------------- ¶9. (C) Since 2001 Malaysia has used its Internal Security Act (ISA) to detain without trial members of regional terrorist organizations and successfully thwart terrorist attacks, but post 9/11 it has not prosecuted any terrorist suspects. The GOM held the 2003 anti-terrorism laws in abeyance pending the just completed amendments. In October the GOM released 17 ISA detainees with reported links to Jemaah Islamiyah (JI) and the Malaysian Militant Group (KMM) after some three to five years in detention during which they underwent a rehabilitation process. Those released included members credibly linked to the 2002 Bali bombings and other serious terrorist plots, raising questions regarding Malaysia's longer-term anti-terror strategy. ¶10. (SBU) A senior official within Malaysia's Attorney General's Office, responding to our questions, explained that use of the ISA does not rule out prosecution under the anti-terror laws. ISA is an emergency detention measure exercised in the interests of national security, a measure which in theory does not impede the development of a case for criminal prosecution. While the authorities must provide justification for ISA detention, persons are not tried for offenses under ISA and, thus, double jeopardy does not apply. Will Malaysia Use the New Provisions? -------------- ¶11. (C) Some law enforcement observers comment that, as a practical matter, the availability and ease of use of the ISA mechanism results in Malaysian police not carrying out the painstaking investigative work necessary to build a case for prosecution. Instead, Malaysian police opt for an intelligence approach, which does not yield evidence needed for presentation in court. A human rights lawyer expressed similar sentiment when she told poloffs, "The authorities are unlikely to go through the whole process by invoking the penal code when they can short circuit the process by detaining these suspects under the ISA." ¶12. (S) Our counterparts at the Australian and British High Commissions informed us that senior Malaysian law enforcement officials had expressed their intention to use the new laws to bring future terrorist suspects to court. Inspector General of the Police Tan Sri Musa Hassan recently told British diplomats that police would make use of the new laws and that the Criminal Investigative Division (CID),rather than Special Branch, would take the lead. The Royal Malaysian Police recently held discussions with a British firm reportedly to discuss a contract to boost CID's investigative capacity. British diplomats heard similar perspectives from Police Special Branch Chief Yusuf Rahman. Comment -------------- ¶13. (C) Malaysia now has tough anti-terror laws on the books, including strengthened investigative authorities for police and prosecutors, and stiff penalties for convicted terrorists. The provisions allow for prosecution of KUALA LUMP 00002108 004 OF 004 terrorists (and those who aid and abet terrorists) who carry out or threaten actions not only in Malaysia, but in other countries and against other governments. The anti-terror provisions seemingly can be used in tandem with the ISA, or without recourse to ISA detention. Our own police contacts have not informed us of plans to employ the new anti-terror laws, but it is still early days. Unlike Malaysia's use of ISA detention, prosecuting terrorists would require detailed investigative police work; entail the public airing of information regarding terrorist presence and activities on Malaysian soil (which the GOM heretofore has sought to downplay); and also risk adverse court judgments. We will watch closely how Malaysia chooses to use its new anti-terrorism instruments and whether this situation opens up new areas for U.S. assistance. LAFLEUR