Special Measures Against Terrorism In Foreign Countries Act 2015 (SMATA) & Malaysian List of Terrorist Organisations?

Following the issuance of MADPET's Media Statement on 10/8/2016, the Home Minister was mentioned in a Bernama News Report 

Zahid said to handle the problem, the Malaysian government introduced the Special Measures Against Terrorism in Foreign Countries Act 2015 (SMATA), which provided for the suspension and revocation of the Malaysian travel document of anyone who engaged with listed terrorist organisations. - New Straits Times, 10/8/2016

As such, we decided to look at this not so familiar SMATA, which we have also laid out in full below. From our perusal of this act, 2 issues arise? Could the said SMATA be the law that provided a legal basis for the revocation of Passports of 68 Malaysians overseas?

1 - Has Malaysia's Minister of Home Affairs by order published in the Gazette, and declared the Islamic State as a terrorist organisation?  SMATA can only be used if that has happened - and the militant organization mentioned in the news report was the  'Islamic State'. When did he make this decision? Really Malaysia's list of 'terrorist organisations' - is it the same as the US list? People need to know - so that they can avoid doing anything with these 'listed terrorist organisations" -- so that they avoid breaking the law??? If Malaysia keeps the LIST OF TERRORIST ORGANISATIONS secret - it is unacceptable...That list should advertised on front pages of all print media - and should be easily available on the Home Ministry website.

2 - Our reading of SWATA - suggests that it can only be used when the holder of the passport is still in Malaysia - not when the holders of the Malaysian passport is already out of the country. So, maybe the Minister should explain which provisions of law was used - even the government must follow the law. No one is above the law...not even the Minister of Home Affairs himself....? 

Special Measures Against Terrorism In Foreign Countries Act 2015 (SMATA)

Act 770 - In Force from:  15 June 2015 [PU(B) 250/2015]

Preamble

An Act to provide for special measures to deal with persons who engage in the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country and for related matters.

ENACTED by the Parliament of Malaysia as follows:

1  Short title and commencement

(1) This Act may be cited as the Special Measures Against Terrorism in Foreign Countries Act 2015.

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

2  Interpretation

In this Act, unless the context otherwise requires—

    "Director General of Immigration" means the Director General of Immigration appointed under section 3 of the Immigration Act 1959/63 [Act 155];

    "listed terrorist organization" means any specified entity declared under sections 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [Act 613];

    "Minister" means the Minister charged with the responsibility for home affairs;

    "property" means—

        (a) assets of every kind, whether corporeal or incorporeal, moveable or immovable, tangible or intangible, however acquired; or

        (b) legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including currency, bank credits, deposits and other financial resources, traveller's cheques, bank cheques, money orders, capital market products, drafts and letters of credit,

    whether situated within or outside Malaysia, and includes a legal or equitable interest, whether full or partial, in any such property;

    "terrorist act" has the same meaning assigned to it by the Penal Code [Act 574];

    "travel document" means a passport or any form of valid document of identity issued by any government for the purpose of travel across international boundaries.

3  Extra-territorial application

This Act shall, in relation to any person, whatever his nationality or citizenship, have effect outside as well as within Malaysia, and where an offence under this Act is committed by any person in any place outside Malaysia, he may be dealt with in respect of such offence as if the offence was committed at any place within Malaysia.

4  Terrorist acts in foreign country

The special measures under this Act shall apply to any person who—

    (a) travels to Malaysia; or

    (b) travels or intends to travel to a foreign country or any part of a foreign country from or through Malaysia,

to engage in the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country.

5  Suspension or revocation of Malaysian travel documents

(1) On a request by the Inspector General of Police, the Director General of Immigration may by order suspend or revoke all Malaysian travel documents that have been issued to a person and shall notify the person to whom the travel documents have been issued of the suspension or revocation.

(2) The Inspector General of Police may make a request under subsection (1) if the Inspector General of Police—

    (a) suspects that the person may leave Malaysia to engage in the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country; and

    (b) believes that such suspension or revocation is necessary to prevent the person from carrying out such acts.

(3) A person whose travel documents have been suspended or revoked may make an application in writing to the Director General of Immigration for the cancellation of the suspension or revocation order.

(4) On an application under subsection (3), the Director General of Immigration may cancel or maintain the suspension or revocation order.

(5) No person whose Malaysian travel documents have been suspended or revoked under this Act may obtain replacement or temporary Malaysian travel documents while the suspension or revocation order under subsection (1) is in force.

(6) A person who contravenes subsection (5) commits an offence and shall be punished with imprisonment for a term which may extend to two years.

6  Request for surrender of foreign travel documents

(1) On a request by the Inspector General of Police, the Minister may order the surrender of a person's foreign travel documents for fourteen days if the Minister is satisfied that—

    (a) the person may leave Malaysia to engage in the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country; and

    (b) the surrender of the person's foreign travel documents is necessary to prevent the person from carrying out such acts.

(2) The Inspector General of Police may make a request under subsection (1) if the Inspector General of Police—

    (a) suspects that the person may leave Malaysia to engage in the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country; and

    (b) believes that the surrender of the person's foreign travel documents is necessary to prevent the person from carrying out such acts.

(3) If the Minister has made an order under subsection (1), a subsequent request under this section in relation to the same person shall not be made unless the Inspector General of Police provides additional information to support the request.

7  Demand for surrender of foreign travel documents

(1) If the Minister has made an order under section 6, a police officer may demand that the person surrender to the police officer the person's foreign travel documents.

(2) If the person does not immediately surrender the person's foreign travel documents, the police officer may seize the person's foreign travel documents, whether or not the foreign travel documents are in his possession or control.

(3) A person commits an offence if the person fails to surrender the travel documents to the police officer immediately upon a demand being made under subsection (1).

(4) A foreign travel document obtained by a police officer under this section shall be immediately returned to the person to whom it was issued upon the expiry of the order made by the Minister under section 6 relating to that document unless the retention of such foreign travel documents is required under any other written law.

(5) No person whose foreign travel documents have been seized under this section may obtain replacement or temporary foreign travel documents while the existing travel documents are seized.

(6) A person who contravenes subsection (3) or (5) commits an offence and shall be punished with imprisonment for a term which may extend to two years.

8  Institution of prosecution

No prosecution for or in relation to any offence under this Act shall be instituted except by or with the written consent of the Public Prosecutor.

9  Non-application of Offenders Compulsory Attendance Act 1954 and sections 173A, 293 and 294 of the Criminal Procedure Code

The Offenders Compulsory Attendance Act 1954 [Act 461] and sections 173A, 293 and 294 of the Criminal Procedure Code [Act 593] shall not apply to an offence under this Act.

10  Regulations

The Minister may make regulations as may be necessary or expedient for giving full effect to or for carrying out the provisions of this Act.

"listed terrorist organization" means any specified entity declared under sections 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [Act 613];

66B  Declaration of specified entities

(1) Where the Minister of Home Affairs is satisfied on information given to him by a police officer that-

    (a) an entity has knowingly committed, attempted to commit, participated in committing or facilitated the commission of, a terrorist act; or

    (b) an entity is knowingly acting on behalf of, at the direction of, or in association with, an entity referred to in paragraph (a),

the Minister of Home Affairs may, by order published in the Gazette, declare the entity to be a specified entity.

(2) In making an order under subsection (1), the Minister of Home Affairs may, for the purpose of facilitating the implementation of the order, consult with the relevant regulatory or supervisory authority or such other body or agency as the Minister of Home Affairs considers appropriate.

(3) Where an order under subsection (1) has been made-

    (a) no citizen of Malaysia and no body corporate incorporated in Malaysia shall within or outside Malaysia knowingly provide or collect by any means, directly or indirectly, property with the intention that the property be used, or in the knowledge that the property is to be used, by a specified entity;

    (b) no citizen of Malaysia and no body corporate incorporated in Malaysia shall within or outside Malaysia knowingly-

        (i) deal, directly or indirectly, in any property of a specified entity, including funds derived or generated from property owned or controlled directly or indirectly by that entity;

        (ii) enter into or facilitate, directly or indirectly, any transaction related to a dealing referred to in subparagraph (i);

        (iii) provide any financial or other related service in respect of the property referred to in subparagraph (i); or

        (iv) make available any property or any financial or other related service, directly or indirectly, for the benefit of a specified entity;

    (c) no citizen of Malaysia and no body corporate incorporated in Malaysia shall within or outside Malaysia knowingly do anything that causes, assists or promotes, or is intended to cause, assist or promote, any activity prohibited by paragraph (a) or (b);

    (d) every citizen of Malaysia and every body corporate incorporated in Malaysia shall disclose immediately to the Inspector General of Police-

        (i) the existence of property in their possession or control that they have reason to believe is owned or controlled by or on behalf of a specified entity; and

        (ii) information about a transaction or proposed transaction in respect of property referred to in subparagraph (i).

(4) Any person who contravenes subsection (3) commits an offence and shall be liable on conviction to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both.

[Am. Act A1467:s.59]

(5) Where an order under subsection (1) has been made, all secured and unsecured rights and interests held by a person, other than a specified entity or his agent, in the frozen property are entitled to the same ranking as they would have been entitled to had the property not been frozen.

(6) A specified entity may, within sixty days of publication of the order in the Gazette, make an application in writing to the Minister of Home Affairs for the revocation of the order made under subsection (1), or deemed under section 66C to have been made, in respect of that entity.

(7) If, on an application made under subsection (6), the Minister of Home Affairs-

    (a) decides that there are reasonable grounds for the revocation of the order, the Minister of Home Affairs shall revoke the order and publish an order of revocation in the Gazette; or

    (b) decides that there are no reasonable grounds for the revocation of the order, the Minister of Home Affairs shall refuse the application and shall, within sixty days of receipt of the application, inform the applicant of his decision.

(8) The decision of the Minister of Home Affairs under subsection (7) shall be final.

(9) Unless sooner revoked under paragraph (7)(a), the Minister of Home Affairs shall review the orders made under subsection (1) every six months to determine whether there are still reasonable grounds, as set out in subsection (1), for any such order to continue to apply to a specified entity, and if the Minister of Home Affairs determines that there are no such reasonable grounds, he shall immediately revoke the order made under subsection (1) in respect of that specified entity.

(10) An order under this section shall not apply to funds and other financial assets or economic resources or any part of such funds, assets or resources that have been determined by the Minister of Home Affairs to be-

    (a) necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for the payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources; or

    (b) necessary for extraordinary expenses approved by the Minister of Home Affairs,

and where such order has been made in relation to such funds, financial assets or economic resources or any part thereof, the Minister of Home Affairs may, subject to such terms and conditions as he considers appropriate, vary such order and authorize access to such funds, assets or resources.

(11) Where an order under subsection (1) has been made, the Minister of Home Affairs shall direct the relevant regulatory or supervisory authority to issue such orders, directives or circulars to the institutions it regulates or supervises to facilitate the implementation of the order and the relevant regulatory or supervisory authority shall comply with such direction.

66C  Orders for implementation of measures to give effect to Security Council resolutions

(1) Where the Security Council of the United Nations decides, in pursuance of Article 41 of the Charter of the United Nations, on the measures to be employed to give effect to any of its decisions and calls upon the Government of Malaysia to apply those measures, the Minister of Home Affairs may, by order published in the Gazette, make such provision as may appear to him to be necessary or expedient to enable those measures to be effectively applied.

(2) Where an order under subsection (1) makes provision to the effect that there are reasonable grounds to believe that an entity designated by the Security Council of the United Nations is engaged in terrorist acts, the order under subsection (1) shall be deemed, with effect from the date of the order, to be an order declaring that entity to be a specified entity under subsection 66B(1).

[Am. Act A1467:s.60]

(3) An order under subsection (1) shall not apply to funds and other financial assets or economic resources or any part of such funds, assets or resources that have been determined by the Minister of Home Affairs to be-

    (a) necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources; or

    (b) necessary for extraordinary expenses approved by the Minister of Home Affairs,

and where such order has been made in relation to such funds, financial assets or economic resources or any part of the funds, assets or resources, the Minister of Home Affairs may, subject to such terms and conditions as he considers appropriate, vary such order and authorize access to such funds, assets or resources. [66C. Ins. Act A1208:s.22]

MADPET DEPLORES ARBITRARY REVOCATION OF PASSPORTS OF 68 MALAYSIANS

See related post Govt cancels passports of 68 IS supporters (Star - 7/8/2016)

Media Statement – 9/8/2016

MADPET DEPLORES ARBITRARY REVOCATION OF PASSPORTS OF 68 MALAYSIANS

-Justice must not just be done but seen to be done in Malaysia –

MADPET(Malaysians Against Death Penalty and Torture) is shocked that it has been reported that  Malaysia has recently revoked passports of about 68 Malaysian men, women and/or children, who now are allegedly not even in Malaysia, based on what can only be safely said to be  a ‘suspicion’ of their involvement with a militant group -  the Islamic State (IS).

‘…Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi said their involvement with the militant group was uncovered by intelligence…."They no longer have travel documents as Malaysian citizens..." Dr Ahmad Zahid, who is also Home Minister told reporters…’ (Star, 7/8/2016 - Govt cancels passports of 68 IS supporters)

The impact of the Malaysian government’s actions on its own citizens is not only unjust but draconian. The cancellation of passports would reasonably make all these people ‘illegal’ immigrants, who will risk the possibility of arrest, detention, imprisonment and/or deportation. Now, if the laws of the country, where these affected Malaysians are like those in Malaysia, it may also mean that they may even be subjected to whipping for being ‘undocumented’ migrants.

Without a valid passport or travel document, these Malaysians will have no way to travel beyond borders – and they may be forced to resort to using the services of ‘people smugglers’ or some other illegal means just to travel beyond borders, simply to get back to Malaysia and to their families. 

OBLIGATIONS UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC)

The Minister, in the said news report, indicated that children will be affected by this action, when he cited as examples the case of ‘two families with young children’.  MADPET reminds Malaysia of its commitment to upholding the ‘best interests of the child‘ and the Convention on the Rights of the Child (CRC). The best interest of children in Malaysia, whose parents have been affected by this draconian action, should also be of concern.

PRESUMPTION OF INNOCENCE UNTIL PROVEN GUILTY IN A COURT OF LAW

If these 68 persons have allegedly broken Malaysian laws, then Malaysia must be interested to bring them back to Malaysia, to be charged and accorded the right to a fair trial in an open court. 

It is troubling that the government seems not at all bothered about bringing them back home to face justice. In fact, in the said Star report, the Minister said that at least 2 families had said that they ‘want to come home’. The Minister also allegedly said, ‘those who had left the country to go and serve the militant group did not deserve to return home’.

‘..Dr Ahmad Zahid added that there will be no compromise with those who have betrayed their country and people. "We will disown them," said Dr Ahmad Zahid, adding that the Government does not want "ideological criminals" in the country…’ Sadly, the news report fails to mention the specific law that these persons have allegedly broken, or what the Minister meant by the phrase ‘ideological criminals’.

Justice demands that everyone is presumed innocent until proven guilty in court. Everyone deserves the right to be heard, and a fair trial.

ARBITRARY ADMINISTRATIVE ACTION OF REVOKING PASSPORTS UNJUST

This revocation of the passports of Malaysians is just like Detention without Trial, where the administration (or the Executive) arbitrarily decides and do, and this is very wrong and most unjust. Now, in these case, the victims are literally ‘abandoned overseas’ – making it very difficult for them to even go and file a judicial review against the government’s decision to revoke their passports, or consider other legal actions concerning the remarks made about them.

The revocation of the passport of a Malaysian citizen, without first according the proposed victim the right to be heard is unacceptable. This revocation seems to be simply an administrative action, a decision of the Prime Minister and/or his cabinet – not even pursuant to any court order.  Zahid Hamidi revealed in the media report that the ‘passports were cancelled two weeks ago after Prime Minister Datuk Seri Najib Tun Razak directed the move…’.

At this moment and time, the credibility and competency of Malaysia’s own investigation capacity is in doubt. In the news report, the Minister says that the evidence in support was ‘uncovered by intelligence’ – but sadly there was no mention as to whether it was Malaysian intelligence, US intelligence or some other international ‘intelligence’ organisation.

The Minister’s goes on to imply that there are photos – ‘…"But what they are doing now is washing toilets and sweeping roads there. I have photos to prove it," ‘. From what has thus far been revealed by the Minister in the said news report, sadly fails to show that there is any basis to revoke their passports. There is a possibility that they may simply be victims of human trafficking, or simply migrant workers?

Administrative actions can, many a times be based on allegations or un-tested evidence, and that is most dangerous. That is why there is a need for a fair trial – when the prosecution can present their evidence, the accused will have a right to be heard, and the courts will decide whether there sufficient evidence to convict a person of a crime.  Sentence follows a conviction by a court of law.

Actions that will affect the rights, freedoms and liberties of persons, should not be simply based on the ‘decisions’ of the Executive arm of government, or some Minister or public officer. It is best that such actions like this revocation of passport be carried only pursuant to a court order, where there will be every opportunity accorded to potential victims to have the right to be heard and/or to appeal the decision.

ALLEGED MALAYSIAN PERPETRATORS OF CRIME SHOULD BE BROUGHT BACK TO MALAYSIA TO BE TRIED

In this modern age, the freedom of movement within the country and out of a country should be considered an inalienable right for every person, especially citizens. People today move in and out of countries for work and business. This freedom of movement and the right to a passport should not simply be violated simply by administrative decisions. It must only be done pursuant to a court order, after the alleged victim has been accorded the right to be heard.

The deprivation of the right of a citizen to return to Malaysia is a violation of human rights. Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) states that, ‘No one shall be arbitrarily deprived of the right to enter his own country.’

MADPET calls on Malaysia to do the needful to ensure the re-entry of all the said 68 Malaysian citizens (and any other persons) who Malaysia may have arbitrarily caused their passports to be revoked, so that all these Malaysian citizens, who allegedly committed crimes, will face justice in Malaysia. They should all thereafter be charged and accorded a fair trial.

MADPET also says that, in the event, it is proven that the government actions of revoking passports were found to wrong and/or baseless by a court of law, just compensation ought be paid to these victims who suffered by reason of Malaysia’s administrative actions.

Charles Hector

For and on behalf of

MADPET(Malaysians Against Death Penalty and Torture)

Govt cancels passports of 68 IS supporters (Star - 7/8/2016)

Was there any right to be heard? Was there even any 'show cause' letter or notice send...

By the cancellation of Malaysian's passports - how many Malaysians just suddenly became illegal 'immigrants' in some country?

What offense did they commit -  these "ideological criminals"? 

68 passports revoked - how many men? women? children?

 

Sunday, 7 August 2016 | MYT 7:09 PM

Govt cancels passports of 68 IS supporters

by wani muthiah

KUALA SELANGOR: A total 68 passports belonging to Malaysians who are abroad have been revoked due to their involvement with the Islamic State (IS).

Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi said their involvement with the militant group was uncovered by intelligence.

"They no longer have travel documents as Malaysian citizens and if they return to the country, action in line with the Immigration Act will be initiated against them," Dr Ahmad Zahid, who is also Home Minister told reporters after opening the Kuala Selangor Umno division meeting Sunday.

He added that the passports were cancelled two weeks ago after Prime Minister Datuk Seri Najib Tun Razak directed the move.

Earlier in his speech Dr Ahmad Zahid said those who had left the country to go and serve the militant group did not deserve to return home.

Dr Ahmad Zahid added that there will be no compromise with those who have betrayed their country and people.

"We will disown them," said Dr Ahmad Zahid, adding that the Government does not want "ideological criminals" in the country.

He narrated how two families with young children - from Shah Alam and Ipoh - had sold their property and belongings and moved to Syria to serve IS.

"But what they are doing now is washing toilets and sweeping roads there. I have photos to prove it," he added.

According to Dr Ahmad Zahid he received messages that they regret their move and want to come home.

"But the Cabinet has decided to cancel their passports," he added.

On another matter, Dr Ahmad Zahid said the authorities were currently searching for eight out of the 10 grenades in the hands of a militant group which had launched an attack here.

Two of the grenades were set off at the Movida Restaurant in Puchong on June 28.

He said police and the military are tracking down the militants and the eight bombs that are in their possession. - Star, 7/8/2016

Monday, 8 August 2016

‘They have betrayed the nation’

by wani muthiah

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KUALA SELANGOR: The passports of 68 Malaysians, who are abroad, have been revoked due to their involvement with the Islamic State (IS).

Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi said that intelligence information had confirmed their involvement with the militant group.

“They no longer have travel documents as Malaysian citizens and if they return to our country legal action in line with the Immigration Act will be initiated against them ,” Dr Ahmad Zahid, who is also home minister, told reporters after opening the Kuala Selangor Umno division meeting Sunday.

He said the passports were cancelled two weeks ago after Prime Minister Datuk Seri Najib Tun Razak ordered it.

Earlier in his speech, Dr Ahmad Zahid said those who left the country to go and serve the militant group did not deserve to come back home.

Dr Ahmad Zahid added that no compromises would be made for those who betrayed their country and people.

“We will disown them,” said Dr Ahmad Zahid, who added that the Government did not want any ideological criminals in Malaysia

He narrated how a family each from Shah Alam and Ipoh, with young children, had sold their properties and belongings and moved to Syria to serve IS.

“But what they are doing now is washing toilets and sweeping roads there.

“I have photos to prove it,” he added.

According to Dr Ahmad Zahid, he has received messages that they regretted their move and wanted to come home.

“But the Cabinet has decided to cancel their passports,” he added.

On another matter, Dr Ahmad Zahid said the relevant authorities were currently in search of eight out of the 10 grenades that were in the hands of a militant group which had launched an attack here in the Klang Valley recently.

Two of the bombs were set off at the Movida Restaurant in Puchong on June 28.

He said the police and the military were tracking down the militants and the eight grenades that were in their possession.

“We do not know when and where the next incident is going to take place but we are lucky that the police Counter Terrorism Division and the armed forces, who have been doing a great job in taking care of security, are hunting them down.

“Steps are also being taken to tighten security measures in the country.”

Dr Ahmad Zahid, who is Umno vice president, also initiated a motion at the delegates meeting to prevent IS activities from creeping into the country. - Star, 8/8/2016