The Malaysian Maritime Enforcement Agency Act 2004: Malaysia's Legal Response to the Threat of Maritime Terrorism

• Author: Dr. Irwin Ui Joo Ooi
• Position: Law Lecturer, MARA University of Technology, Malaysia
• Pages: 70-91

THE MALAYSIAN MARITIME ENFORCEMENT AGENCY ACT 2004: MALAYSIA’S

LEGAL RESPONSE TO THE THREAT OF MARITIME TERRORISM

Irwin U.J. Ooi∗

1. Introduction

On 11 September 2001, the world watched in horror as commercial passenger jets that were hijacked by

suicide terrorists crashed into the Twin Towers of the World Trade Centre in New York. This audacious

attack signalled the dawn of a new reign of global terror.1 It highlighted the stark reality that security

systems of an important mode of transport were highly vulnerable and a seemingly innocuous vehicle such

as an aeroplane could so easily be exploited as a weapon. One writer has pointed out that shipping is

arguably even more vulnerable to terrorism than air transport.2 There are certain cargoes such as

ammonium nitrate3 that are safe when handled properly, but could, without much effort, be converted into

a powerful explosive when triggered by the right explosive catalyst.4 There are further fears that terrorists

could also take advantage of containers that have long been used for the smuggling of contraband. A small

nuclear device could be placed within the containers and then detonated when the ship is berthed at a port.5

The bomb’s real potency is not the actual physical damage to the surrounding area, but the fact that

radiation from the fall out would contaminate a large area and make a commercially vital maritime hub

uninhabitable for thousands of years to come.6 Less drastic acts of maritime terrorism such as the hijacking

of a tanker and discharging its contents could have an equally devastating effect on the environment and

population centres adjacent to port facilities or shipping channels.7

The international community’s response to the threat of global maritime terrorism was the International

Ship and Port Facility Security Code (ISPS Code) which came into force internationally on 1 July 2004. In

order to effectively coordinate the various security measures, a ‘coast guard’ type agency was viewed as

essential because as the International Maritime Bureau8 rightly points out, the ISPS Code alone cannot

defeat the challenges facing maritime security.9 The Malaysian Maritime Enforcement Agency Act 2004

(Malaysia)10 (MMEAA 2004) was Malaysia’s statutory response to the threat of maritime terrorism.11 It

∗ Law Lecturer, MARA University of Technology, Malaysia.

1The reason such terrorism has become widespread in the world today is because it provides a highly advantageous method of combat,

with its potential for significant results at limited human and financial cost. Technical progress has played an essential role in this

regard. Nitro-glycerine or mercury bombs have been replaced by remote-controlled devices that are increasingly difficult to detect.

The growing fragility of civilisation has increased the number of sensitive targets as it has the means of escape. Lastly, the

development of mass media has enabled terrorists to put across their message more effectively and through the press and television

to accentuate the terror they seek to spread. Impassioned feelings, or indeed fanaticism, have further increased the risks. See Gilbert

Guillaume, ‘Terrorism and International Law’ (2004) ICLQ 533, 537.

2Struan Robertson, ‘Shipping and Terrorism: The ISPS Code’ (2004) 154 (7119) New Law Journal 388.

3 This is a type of agricultural fertilizer.

4 Above, n 2.

5 A similar scenario has been dreamt up in a best-selling novel. See Tom Clancy, The Sum of All Fears (2002) It has also been made

into a Hollywood movie directed by Phil Alden Robinson with an ensemble cast that included Ben Affleck, Morgan Freeman, James

Cromwell and Richard Marner.

6 For example, americium-243 has a half-life of 7,370 years. For information on the effects of nuclear radiation, see

<http://science.howstuffworks.com/nuclear2.htm> at 3 November 2004. This website explains scientific concepts in language that is

easily understandable to a layperson.

7 Above, n 2.

8 Founded in 1981, this organisation has the support of the International Maritime Organisation (IMO) and has observer status with

Interpol. The International Maritime Bureau is tasked with preventing fraud in international trade and maritime transport. In 1992,

reacting to an alarming growth in piracy on the world’s oceans, the organisation created the Piracy Reporting Centre at its Far East

Regional Office in Kuala Lumpur. See <http://www.iccwbo.org/ccs/menu_imb_bureau.asp> at 3 November 2004.

9 Sandra Speares, ‘ISPS Code is No Answer to Maritime Security Challenges’, Lloyd’s List, 24 September 2004, 1.

10 Act 633. Malaysian Acts are numbered in chronological order. Act 633 means the 633rd Act passed by the Parliament. The number

does not denote the 633rd Act of a particular year.

11MMEA 2004 Act was given Royal Assent on 25 June 2004 and coincidentally gazetted on the same day that the ISPS Code came

into force internationally on 1 July 2004. The Act came into force on 2 February 2005. See APMM(R)300 Jld.2 (PU2)2321/IV (Dated

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The Malaysian Maritime Agency Enforcement Act

contains legal provisions for the setting up of a Malaysian ‘coast guard’,12 known as the Malaysian

Maritime Enforcement Agency (MMEA). The preamble describes the MMEAA 2004 as:

[a]n Act to establish the Malaysian Maritime Enforcement Agency to perform enforcement functions for

ensuring the safety and security of the Malaysian Maritime Zone with a view to the protection of maritime

and other national interests in such zone and for matters necessary thereto or connected therewith.

This objective of this article is to provide a legal analysis of the MMEAA 2004. The article begins with an

examination of the circumstances under which the MMEAA 2004 was drafted and enacted by the

Malaysian Parliament. At this stage, it is important to ask whether the MMEAA was a genuine response to

the threat of maritime terrorism, or whether it is a by product of pressure from the United States of

America. The article continues with a critique of the structure of the agency and its personnel, followed

with a scrutiny its functions and powers as provided for in the MMEAA 2004. Although the MMEAA 2004

is silent on the issue of legal liability of the agency and its personnel while conducting maritime related

operations under the Act, the final part of this article contains an endeavour to determine the nature, scope

and extent of that liability. The conclusion will include an assessment of whether the legislative drafting of

the MMEAA 2004 is sufficient to empower the MMEA to carry its functions as a coastguard unit that has

an important role to play in the fight against maritime terrorism.

2. The General Fra mework of the MMEAA 2004

The MMEAA 2004 is relatively concise, comprising a mere 19 sections, when compared to other major

shipping legislation such as the Merchant Shipping Ordinance 1952 (Malaysia) (MSO 1952) which

stretches from s1 to s531,T13 and that does not take into account its 15 schedules. The MMEAA 2004 is

divided into four parts. Part I, is titled ‘Preliminary’ and contains the short title and commencement under

s1, as well as the ‘Interpretation’ section under s2. Part II concerns establishment of the agency and

appointments of officers of the agency. It comprises s3 on ‘Establishment of the Malaysian Maritime

Enforcement Agency’, s4 on ‘Appointment of the Director General of the Agency’ and ‘Appointment of

other officers of the Agency’.14 In Part III, there are stipulations for the functions 15 and powers of the

MMEA in s7. The last part of the MMEAA 2004 is simply titled ‘General’. It includes s8 that deals with a

variety of subject matter ranging from prosecutions, s9 on reporting the status of investigations, s10 on

protection of the officers of the Agency, s11 on identification requirements and s12 on the carrying of

arms, to provisions on desertion in s13, mutiny in s14, penalties for causing disaffection in s15, co-

ordination of the various enforcement authorities s16, powers during an emergency, special crisis or war in

s17, standing orders in s18 and the power to make regulations in s19.

From a prima facie examination, it is clear that the MMEAA 2004 is not exhaustive. References are made to

numerous other domestic statutes such as the Emergency (Essential Powers) Ordinance, No.7 1969

(Malaysia),16 the Continental Shelf Act 1966 (Malaysia),17 the Fisheries Act 1985 (Malaysia),18 the

2 February 2005) where the Deputy Minister, Dato’ Sri Haji Mohd. Najib bin Tun Haji Abdul Razak made the following declaration in

P.U.(B) 67-68 titled ‘Malaysian MMEAA 2004 – Appointment of Date of Coming into Operation’: ‘In exercise of the powers

conferred by subsection 1(2) of the Malaysian MMEAA 2004 [Act 633], the Minister appoints 15 February 2005 as the date of the

coming into operation of the Act’. (For non-Malaysian readers of this article, the phrase “Dato’ Sri” is a title that may be conferred on

an individual by the ruler of a state, a Sultan. The word “Haji” refers to a man who has visited the Muslim holy land and performed a

religious pilgrimage called the Haj).

12 The MMEA ‘will be like a Malaysian Coast Guard. It will patrol [the] waters like the police and navy’. See Shahrullizan Rosli,

‘APMM to be Elite Force’(2004) Bernama.

13 There are actually more than 531 sections because some new sections have been added. For example, there is now a new Part IIB on

the Domestic Shipping Licensing Board, comprising of s65A to s65T. Another illustration of new statutory additions is in Part IIC on

the Malaysia International Ship Registry, which contains s66, s66A to s66G.

14 MMEAA 2004, s5.

15 Ibid s6.

16 P.U. (A) 307A / 1969.

17 Act 83. Malaysian Acts are numbered in chronological order. Act 83 means the 83rd Act passed by the Parliament. The number does

not denote the 83rd Act of a particular year.

18 Act 317.

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