Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful

Activities Act 2001 (AMLATFPUAA)

The relevant requirements in the area of terrorism financing were only

incorporated in the primary act, Anti-Money Laundering Act 2001 (AMLA) in 2007.

AMLATFPUAA provides law enforcements with the power to freeze, seize and

confiscate or to forfeit the proceeds or properties that are involved or suspected to

be involved in money laundering or terrorism financing. The Courts are then given

the power to forfeit the properties that were derived from the proceeds of serious

crimes.

Part IV of the Act provides the obligations of reporting institutions to maintain

proper record of any domestic or foreign currency transactions that exceed the

amount specified by the competent authority. Section 14(c) of the Act states that a

report should be made to the competent authority if there is reason to suspect that

the transaction or property involved is related or linked to any form of terrorist

activities or terrorism financing. Individuals involved in acts of terrorism would

cleverly use various methods to conceal the illegal proceeds from such activities to

make it appear ‘clean’ by claiming that such proceeds were obtained through legal

means.

Thus, by placing a duty on reporting institutions, AMLATFPUAA is able to

monitor the transactions of such suspected individuals and prevent them from

obtaining proceeds from terrorist-related activities and financing any act of terrorism.

Section 3 of AMLATFPUAA defines a terrorism financing offence as any offence

falling under Section 130N, 130O, 130P or 130Q of the Penal Code. This Act
imposes criminal sanctions on any individuals that are found to be involved in

illegally derived proceeds.

Section 4 of the AMLATFPUAA provides that any individual convicted of

committing a money laundering offence would be liable for up to fifteen years of

imprisonment and shall be liable to a fine of five times the minimum value of the

illegally obtained proceeds1 or instrumentalities of the office at the time it was

committed or five million ringgits fine, of whichever is higher. AMLATFPUAA acts as

a form of CVE as it sends a message to individuals involved in terrorism-related

activities that criminal sanctions would be imposed on them and that they would not

be able to enjoy or benefit from the illegal proceeds that they have obtained from

such unlawful activities.

This is due to the fact that, Part VI of the Act provides for the freezing, seizure

and forfeiture of properties obtained through such unlawful activities. For instance,

Section 44 of the Act provides that an order may be issued by an enforcement

agency to freeze their property or any terrorist property if the enforcement agency

suspects that such property was obtained through unlawful activity or through

terrorism financing. Section 44(10) of AMLATFPUAA provides that if there is non-

compliance with subsection (1), the individual would be liable to a fine not exceeding

five times the value of the frozen property, or a sum of five million ringgit, or such

individual would be imprisoned for a term not exceeding seven years.

1
This illegally obtained proceeds are proceeds obtained through unlawful activities such as activity
that is regarded as a serious offence or any foreign serious offence. According to the Second
Schedule of AMLATFPUAA, terrorism related offences is considered as an unlawful activity, which
means individuals involved in terrorism activities would be liable to the sentencing aspect of this
section.
 This demonstrates that AMLATFPUAA places a higher emphasis on criminal

sanctions to act as a way of deterring individuals from being involved in any acts of

terrorism or to be involved in terrorism financing activities. Higher criminal sanctions

would also instil fear in soon-to-be radicalized individuals to reconsider their

decisions on whether it is worth to be imprisoned or to be imposed with a hefty fine

which is more than what they would spend in their terrorism activities.
Prevention of Crime Act 1959 (POCA)

POCA was originally intended to combat and prevent organized crime in

Malaysia by criminals, members of secret societies and other undesirable persons.

In 2015, POCA was amended to include terrorism as an offence under the act 2. This

amendment implied that this act applies to terrorist acts other than those which is

covered under the Prevention of Terrorism Act 2015 (POTA) which deals specifically

with preventing commission or support of terrorist acts. It confers the Malaysian

Police with power to arrest and detain an individual involved in organized crimes

such as acts of terrorism, without trial for a period of up to 60 days as provided under

Section 3 and Section 4 of POCA3.

Although the detention provision has received numerous backlashes from

various bodies who claimed it is a draconian act and that it infringes on the rights of

an individual to be given a fair trial, such is not the case. According to Nancy Shukri,

a minister in the Prime Minister’s Department, POCA being an anti-terrorism law

aims to protect the security of the people and the nation instead of infringing the

rights of the people (Bernama, 2015). She further stated that legal provisions such

as POCA and POTA help in curb Malaysian’s from involving with terrorists who have

deviated from the actual struggles.

2
The amendment to Section 2 of POCA clarified that this act now applies to terrorist provides a
definition of what is meant by a terrorist. According to Section 2, ‘terrorist’ is given the same meaning
as provided in the Penal Code (PC). The PC provides that terrorist is a person that commits, attempts,
participates or facilitates the commission of any terrorist act which includes a specific entity under
Section 66B or Section 66C of the Anti Money Laundering Act 2001(AMLA). AMLA is currently known
as the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act
2001, which now highlights the seriousness of terrorism related activities and Section 66B and
Section 66 C is still present in the act
3
The 60 days period may begin with a preliminary arrest for a 24 hours period followed by an
extension up to 21 days with a statement in writing being signed by a police officer not below the rank
of an inspector. The individuals can be further detained for a further extension of 38 days with a
statement in writing that is now signed by a police officer not below the rank of an Assistant
Superintendent.
 After the detention period, the individual detained would have their case heard

before the Prevention of Crime Board (PCB) 4. The PCB is empowered by Section

19A of POCA to sentence the detainee for a period of up to two years and such

period may be extended for a period not exceeding two years if the board finds that

further detention is necessary to prevent crime, protect the public order and public

security5. Moreover, Section 19A(2) also states that such direction of the court for the

detainee to be further detained, shall be subjected to review by the High Court and

this ensures a form of check and balance from the Parliament to ensure the

detainees are not forever restricted unfairly.

Section 12 of POCA provides that a record would be kept by a Registrar on

persons believed to be members of any registrable categories, as provided under the

First Schedule6. PCB may then direct the police to supervise these registered

individuals for any period not exceeding five years and an electronic monitoring

device may be attached on them, as provided under Section 7(1)(b) of POCA 7.

Section 15 of the POCA acts as a form of CVE in Malaysia as the movements of the

registered individuals are supervised and authorities would be able to act

immediately if any form of suspicion arises as to the whereabouts of the registered

individual.

4
Members of the PCB is appointed by the Yang Di-Pertuan Agong. The PCB is chaired by an
experienced legally qualified person in the legal field with at least fifteen years of experience and has
a Deputy Chairman. The PCB would also consist of three to six other members. The PCB would then
determine their own procedures subjected to the POCA.
5
The board would issue detention orders after considering the report that was submitted by the
Inquiry Officer under Section 10 and the outcome of any review under Section 11 of the act.
6
The First Schedule also states that persons who are engaged or involved in the commission or
support of any terrorist acts under the Penal Code falls under the category of registrable categories.
7
The restrictions imposed on registered persons under police supervisions is provided under Section
15 of POCA. Such conditions include travel restrictions on such individuals as they would be required
to reside within the limits specified in their order. They are only allowed to leave their state or even
village if they have obtained a written authority from the Chief Police Officer of their state. The
registered person would also be required to present himself to the nearest police station if required.
This section also monitors the communication devices that are registered person uses to ensure his
communication with other members of the terrorist organizations or any individuals suspected of being
associated with terrorist organizations to be cut off.
 POCA can be seen as a form of deterrence mechanism under CVE in

Malaysia, as registered individuals that fail to comply with the conditions imposed on

him under Section 15 would be guilty of an offence and would be liable for up to ten

years imprisonment. Moreover, Section 15(7) provides that the imprisonment term

sentenced to the registered individuals does not affect the supervision period and

that the supervision period shall continue from the date of the completion of the

imprisonment sentencing. This would instil fear in the hearts of those radicalized

individuals and may cause them to return to the retribution path that is preached in

the Malaysian CVE mechanism.

Security Offences (Special Measures) Act (SOSMA) 2012

SOSMA was enacted to replace the Internal Security Act 1960 that was

repealed in 2011. SOSMA is seen as a procedural law that regulates procedures

relating to temporary detention, arrest, investigation and the trial of an individual

instead of the Criminal Procedure Code (CPC) in matters relating to organized

crimes, offences against the state, offences relating to terrorism and human

trafficking. Section 4(1) of SOSMA provides that police may arrest and detain a

person if they have reason to believe that the person is involved in security offences.

The individual can be detained for a period of 24 hours and detention can be

extended up to a period of 28 days as provided under Section 4(5) of the Act.

Section 4(6) of SOSMA also provides that an individual that is released if no

further detention is required can still be monitored upon his release by attaching an

electronic monitoring device on his person. This enables the police to continue with

their investigation without holding the individual under detention, but still monitor the

movements of the individual to detect if any suspicious act of terrorism is taking

place8. Part III of SOSMA provides for specific procedures to be adhered to, relating

to the electronic monitoring device. The suspected individual is then required to

comply with the conditions of the monitoring device and shall report to the police

station as and when required in the form specified under the Second Schedule of the

Act. Section 7(6) of the act ensures that the individual would comply with all the

conditions listed in the form, or they would be imprisoned for a period not exceeding

three years.

8
According to Section 7(1) of SOSMA, the electronic monitoring device shall be attached on the
individual for a period which would be determined by the court but such period should not exceed the
remainder of the period of detention of twenty-eight days as allowed under Section 4(5) of the Act.
This ensures fairness in the treatment of the individual and to prevent any abuse of powers by the
police authorities.
 Next, SOSMA is seen as a good mechanism in combating terrorism as it

provides for the power to intercept communication as provided under Section 6 of

the Act and is subject to the authorization from the Public Prosecutor (PP). The

authorization of the public prosecutor ensures that there is no abuse of powers of the

police and to ensure that such authorization is only granted when the PP is of the

opinion that such communications if intercepted, would contain information relating

to the commission of the offence. It should also be noted that Section 6(3) of

SOSMA, provides that a police officer not below the rank of Superintendent of

Police, who are gazetted officers, may intercept communication of the suspected

individuals without authorization from the PP if urgent cases require for an immediate

action to be taken and authorization from the PP may delay the process.

Preventive action and detention laws such as the SOSMA, acts as a CVE as

well, as they carry out preventive operations and act before crimes such as terrorist

attacks are committed. It helps to control the growth of the terrorist networks in this

modern era as communications can be intercepted by the police authorities.

References

Pota, Poca balances human rights with national security, says Nancy Shukri. (2015,

September 4). MalayMail.

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Allegation of POCA being draconian, no different from ISA not true - Nur Jazlan.

(2017, August 22). Astro Awani.

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Liang, T.Y. (2015, November 4). Gani Patail: Sosma introduced to deal with

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Pota, Poca balances human rights with national security, says Nancy Shukri. (2015,

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