Identifier
Created
Classification
Origin
06KUALALUMPUR2108
2006-11-14 09:05:00
SECRET
Embassy Kuala Lumpur
Cable title:
MALAYSIA ADOPTS NEW ANTI-TERROR LAWS
how-toVZCZCXRO8010 PP RUEHCHI RUEHDT RUEHHM DE RUEHKL #2108/01 3180905 ZNY SSSSS ZZH P 140905Z NOV 06 FM AMEMBASSY KUALA LUMPUR TO RUEHC/SECSTATE WASHDC PRIORITY 7952 INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY RUEHBY/AMEMBASSY CANBERRA PRIORITY 2222 RUEHLO/AMEMBASSY LONDON PRIORITY 0301 RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY RUEAIIA/CIA WASHDC PRIORITY RHHMUNA/USCINCPAC HONOLULU HI PRIORITY RHEFHLC/HOMELAND SECURITY CENTER WASHINGTON DC PRIORITY
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
-------
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
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