: . ; THE MALAYSIAN CONTEXT

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PIRATA EST HOSTIS GENERIS HUMANI:

THE MALAYSIAN CONTEXT

Norfadhilah Mohd Ali Hendun Abdul Rahman Shah

Abstract

So much as the world has seenpiracy as an unjustfied illegal act, Malaysia also shares the same concern. A study of the term piracy in the Malaysian context inevitably opens a legal discussion altogethel: This article will discuss on the Malaysian legal position ofpiratical acts with some comparisons with the International Law.

Pirata est hostis generis humani is a maxim, a popular version of the original one, pirata non est ex perduellium numero definitus, sed communis hostis omnium by Cicero. It generally means that piracy is an evil act which is against humanity and mankind. The maxim is neither a definition or as much a description of a pirate but rather a rhetorical invective to show the odiousness of that crime.'

The problem of piracy is not new. The act of piracy has never been justified in any culture since time immemorial. It is oftenly referred to as relics of the past and is always associated to cruel, greedy, scary and fierce looking one-eyed pirates. This stigma is to some extent true, during the days where the unregulated sea was used as the vital route of trade and those powerful at sea were the pirates.

In the ancient period, it was generally believed that the sea is a common heritage of mankind. Hugo Grotius in Mare Librum (Open Sea) had emphasized that the sea was of res comunis ; that is belonging to all and could not be made the property of any state. Later, when conflict between maritime sovereignty and the freedom of high seas arises, some states started to occupy parts of the high seas on the ground of appropriation, dominion and uncontested use. Subsequently, in the course of time, a majority of states began to adopt the view that the extent of the state's sovereignty over its adjacent sea should be limited in practice by some notion of effective control.

The development of the law of the sea has witnessed the conclusion of several important treaties and conventions to meet the purpose of regulating the sea in all aspects. The Third United Nations Law of the Sea Convention 1982 (UNCLOS 1982) was seen as the most comprehensive multilateral treaty on the law of the sea

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Being a state party of UNCLOS 111 in 1996, Malaysia is subject to the articles in the convention and therefore has a profound impact on the country, not only when touching the issue of transit passage, navigation or

1 Jacob W.F Sundberg. 1999. " The Crime of Piracy"; M.Cherif Bassiouni. 1999. International Criminal L ~ . _{New york}: Transnational Publishers. P. 441.

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resource exploration but also in matters of piracy if it occurs beyond reach of the Malaysian waters.

UNCLOS , being accepted as an international law regulating the sea has provided the definition of piracy.

Article 101 Definition of Piracy Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depradation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a a place outside the jurisdiction of any state;

any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or air- c r a e

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The important features of the definition of piracy in Article 10 1 are the limbs 'on the high seas ' , 'against another ship ' and Tor private ends '. By 'high seas' it excludes any act of piracy occurring in the territorial waters. The use of the limb 'outside the jurisdiction of any state' has directly added emphasis that UNCLOS I11 shall only give effect to the sea beyond the limits of national jurisdiction. Thus, activities of piracy, which take place in the jurisdictional waters of coastal states, are not termed as piracy, but armed robbery or sea robbery, that should be dealt with exclusively by the affected states. Taking this as a basis

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as far as the situation in Southeast Asia is concerned, most of the violence are not piracy in the international law as they occur in the states' jurisdictional waters.

The effect of the definition is crucial, as under UNCLOS 111, the international law allows any state to apprehend and seize suspected pirates or piratical vessels of whatever origin and take them back to the country of the arresting state to stand trial, and

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if convicted to serve punishment for the crime of piracy against the international If a piratical activity is spotted within the national waters, the state may pursue the vessel to the high seas under the doctrine i

of Hot Pursuit. This doctrine is due to the necessity to preserve justice and ensure

peace.' ! ,

1 j

l Tunh S o f i Jewe1996. Public In&m&d Lm: A Ahlapica Pmpccrivr. Kwh Lumpur : Pacifica Publicatioa V0l.l. p 6%

'Section 22 of tbe Chb of Judiahm Ad 1964 ( h k d 1972) (Ad 91) s ~ e c tht tbe c h i d jwiadiction of the cxtmdstodo~'byr~y~mtbe~ccrrwhaetbeocfarcispineybytbeIrwofnati~~~~'.

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25 By 'private ends' it means that the attack must not be motivated by political or purposes other to gain personal interests. The third requirement to fulfill what is known by piracy in the international law is that the act has to be committed by the crew or passengers of one ship against the crew

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passengers or property on board of another ship. Thus, the hijacking of a passenger by terrorists is not piracy if the terrorists were traveling onboard as passengers.

The international definition of piracy by UNCLOS has received criticisms due to its rigidity. The IMB4 has suggested its own definition of piracy which reads: 'as an act of boarding any ship with the intent to commit theft or any other crime and with the attempt or capability to use force in furtherance of the act'. It is therefore suggested that the broad definition given by IMB includes robbery, attempted robbery, theft, attempted theft, hijacking, boarding and attempted boarding. The IMB however seems to extend the definition so as to include those acts within the territorial waters of the littoral states.

THE MALAYSIAN LAW

The municipal law may differ from that of international law. In the Malaysian context, one should make a distinction of the use of the word 'piracy' to other terminologies in the eyes of the law.

The ambit of the generality of section 2 of the Malaysian Penal Code envisages that so long as an act or omission contrary to it is committed within Malaysia, the person shall be liable to its punishments. The term 'within Malaysia' indicates no difference on any part ofthe country's territory be it land or its territorial waters. Most of the activities following the word 'piracy' as it normally referred to, are therefore contained in the Malaysian Penal Code under various offences.

None of them is termed under the name of piracy. The offences resembling most t o piracy and piratical acts are such like robbery and armed-robbery as dealt with under section 390-402 of the Penal Code. Thus one may say that the commission of piratical acts in the sea is identical to the commission of the same acts on land, a s the law governing the both is the same.

The known activities of pirates are, in simple picture, boarding another vessel, threatening the crews and causing fear, many to the extent of injuring or murdering them, and taking into possession goods on the vessel. To be caught under the offence of robbery, it has to be proven that either theft or extortion in an aggravated form exists. Any form lesser in degree than that are called attempted

or assault or other offences as the case may be.

Toe

International Maritime Bureau which is a bureau under the lnteznational Chamber o f c o - a (ICC)

clw

the IMB Piracy R@g b t r e (PRC) in Kuala Lumpw in 1992.

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Penal Code, ss 390

In all robbery there is either theft or extortion.

Theft is 'robbery' if, in order to commit theft or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or of instant hurt or of instant wrongful restraint.

Extortion is 'robbery' if the offender, at the time of committing the extortion, is in the presence of the person, put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt or of instant wrongful restraint to that person or to some other person, and

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by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

In clarifying the words 'for that end' in section 390, Ghulam Hasan J.

in Bishambar Nath v. Emperor' said to the effect that if hurt is caused it must be while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by the theft. This emphasizes the view that this offence is designed with the purpose of theft, and in so doing, injury is caused. The offence becomes more serious if weapons or ammunitions are involved. Section 397 adds:

Penal Code, ss 397

397. If at the time of committing or attempting to commit robbery, the offender is armed with or uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, such offender shall be punished with caning with not less than 12 strokes, in ad- dition to any other punishment to which he may be liable under any section of this Code.

Should the robbery involve firearm as defined in Firearms (Increased Penalties) Act 1971 (Act 37), penalties thereunder'j which may amount to death shall apply. Firearms includes any lethal barreled weapon of any description from

AIR (1941) Oudh 476 (HC, Oudh, India)

For example, section 3 of the A a states that any person who at the time of his committing or q t i n g to commit or abetting the commission of a scheduled offence discharges a t h m with intent to c a w death or hurt to my w o n , shall notwithstanding that no hurt is caused thereby. be punished with death

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27 which any shot, bullet or other missile can be discharged by means of explosive charge and includes a bomb or grenade containing an explosive charge.7

Be as it so, there are currently only few cases which were brought to the court under these offences occurring at sea, which explains the scarcity of case notes. This is due to several factors, such as the refusal of the ship owners to report the attack to the local authority, fearing that they will suffer economic loss should their ship is detained for ordinary investigation procedures. Moreover, even though theft, extortions and robbery are seizable offences in which a police officer may ordinarily arrest without warrant8, the police cannot initiate any investigation provided that if it appears to the police officer receiving the information that there is sufficient ground for the proceeding or for further proceeding in the matter.9

The most recent case occurred in the Malaysian water on June 14th 2005 involving a robbery aboard a tanker, Nepline Delima, was decided by the Alor Star Sessions Court on 20th February 2006. Nine Indonesians were sentenced to seven years jail for their involvement in an attempted robbery under section 395l0 of the Penal Code read together with section 397 of the same Code."The tenth offender pleaded not guilty and is subject to further trial.

~ e s p i t e the use of dangerous weapons by a gang of robbers, hijacking a tanker which was laden with RM12 million worth of diesel, the judgment was, to no avail, seemed inadequate. Even though Malaysia has no specific legislation on piracy like some other j u r i s d i ~ t i o n s ~ ~ , the Penal Code is deemed sufficient should the court imposed heavier punishment on the offenders as the implication of the judgment is detrimental to the public's perception, internationally and locally on the seriousness of piratical acts happening at sea.

Though very few cases were brought to the court, others were dealt with diplomatically between countries involved outside the court". While the rest, most of the reported and unreported cases in the country on maritime affairs are concerning insurance claims. Thus it is surprisingly a point to compare when the ~nternational Maritime Bureau (IMB) came up with shocking statistics of reported weekly, which then ultimately led to the declaration of war-zone on Malacca Straits by Lloyds Market Association's Joint War Committee14. The

7 2 , Fiearms (Increased Penalties) Act 1971 (Act 37)

8 fie third column of the First Schedule, Criminal Procedure Code (Revised 1999) (Act 593)

9 fie scenario is identical to theft or robbery on land, where at most of the time the offender has fled at the time the is to the police officer. In such SitUaI~onS, most oftenly, it is difficult to trace them back.

lo section 395 of the Penal Code is on gang robbery which carries punishment for a term of not less than five years and not more than 20 years and shall also be punished with caning of not less than 12 strokes.

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^m ^dFairuz Othman. "Nine Jailed For Hijacking Tanker". New SMits h e s . 20 February 2006. p16

piracy A~ United Kingdom 1968 , The Act Relating to The Prevention and Suppression of the Crime of piracy 1991

m i l a n d ) , see Abdul Ghafur Hamid @ Khin Maung %in. Caw mdMaferials on International A ~ ~kr- l ~ ~ ~ i ~ ~

sion 2 0 0 2 . ~ ~ a l a Lumpur: Univision Press Sdn Bhd. p 15.

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~~~i~~ ~ b d u l Rahman. Maritime Security Policy Directorate (Telephone Interview) .22 December 2005

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~~d M. 2005. 'Malacca Sbait Declared a High Risk Zone by Joint War Committee9. ,yoy& ~ k t . 1s J* 2005. 3.

Writer ~~m and d e dthat such decision could increase premiums in affected area,

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declaration is not a declaration per se with no significant impact. This has directly and indirectly caused to the increase of insurance premiums on ships navigating on it, not mentioning other effectsI5. A Singapore insurer has warned certain shipowners to review their hull insurance policies to ensure that they have war risk cover following the move to assess the Malacca Strait as a war risk zone.I6

Realizing the importance of having a safe waterway, Asia has taken a great leap forward in tackling piracy. There also a co-ordination between Singapore, Malaysia and Indonesia where each country patrols its own waters but communicate with each other."

Another proactive effort initiated by the country in suppressing illegal activities in the Malaysian waters is when the parliament passed the Malaysian Maritime Enforcement Agency Act 2004 (Act 633) (MMEAA 2004). The functions of the agency are to enforce law and order under any federal law, to perform maritime search and rescue, to prevent and suppress the commission of an offence, to lend assistance in any criminal matters requested by a foreign state, to carry out air and coastal surveillance, to provide platform and support services to any relevant agency, to establish and manage maritime institutions for the training of officers of the Agency and generally to perform any other duty for ensuring maritime safety and security18. As far as the Act is concerned, it covers all offences under any federal law which is applicable in the Malaysian maritime zone19.

The Agency however, is also responsible for preventing and suppressing certain activities in the high seas, such as maritime pollution, illicit traffic in narcotic drugs and suppressing piracy as mentioned in Section 6 (3). This is an attempt to harmonize the law with the international law of the sea, that is the United Nations Convention on the Law of the Sea 1982 (UNCLOS).

The existence of the MMEAA 2004 has led to a more effective enforcement mechanism of the country. It is submitted however, that a similar statute should be introduced listing the illegal activities or offences occurring on the Malaysian seaz0.

In order tobring perpetrators of piracy to court, the littoral states are urged to ratify the Suppression of unlawful A& (SUA) Convention". Malaysia is heading towards this pending the amendments of the Malaysian Penal Code and Criminal Procedure Code2z. The implication of SUA 1988 ratification is that there is a substantial broadening of thd range of offences included in Article 3

l5 A Awry can be made that pubaps the whole declpntion was a nude up f a cumin potitid intaeats.

l6 'Singapore Insurer Warns Regional omem on Malscca Strait War Risk &a'. Uo)ric L&t. 30. August 2005, p. I.

l7 n.a Lloyds Lii P July 2004. pg 5

la Section 6 (1) Malaysian Maritime E a f o m m t Agency Act U)04 (Act 633)

Is According to Section 2 of MMEAA 2004, Waysiim MPifim Zone means the iDtnnrl wrtas, turitod sea, continod shelf, exclusive economic umc and the Mahymn &&fi wrtar and k l u b the air space ova the Zone.

lo Australia for instance has its o m StnMe to govan aims o c c d q on sa, Crimes ai Sca Act 2001.

Suppression of Unlawful Acts q a h l tbe Slfety of Mmitimc Nwigalh and Suppcsrion of Unlawful Acts the Safety of Fixed Platform M on the Conlinatal Self

n Dimtor. Maritime Sacurily Poticy Dircdonte. Intavicw. !P 9.Mrrcb, wy~.

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29 of the SUA Convention and the introduction of provisions in Article 8 to allow for the boarding of vessels suspected of being involved in terrorist and piracy

CONCLUSION

The commission of piratical activities within the territorial waters of Malaysia is not termed as piracy but fall under various offences in the Penal Code. Although to some, the difference in terming or labelling the offence may be trivial in nature, it is inaccurate to include such crimes as petty theft under the term of piracy.

~ h u s , the broadening of the concept of piracy may be misleading and may cause unnecessary alarm like the one caused by the declaration of war zone by the Joint War Committee on Malacca Straits.24

Statutes

Courts of Judicature Act 1964 (Revised 1972) (Act 91) criminal Procedure Code (Revised 1999) (Act 593) Firearms (Increased Penalties) Act 1971 (Act 37)

Malaysian Maritime Enforcement Agency Act 2004 (Act 633)

SUA Convention Fast'. Business Rmm. 220. June 2005. p.23

u ll.a **iacca ~ t m i t h l a r e d a Hi@ Risk Zone by Joint War Committee'. LIoydr List. ln July 2005. p.3. See also Raymond, cathefine Zara. 24 August 2005. 'The Malam Straits and the Threat of Maritime Tern-. Power andInferest News

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References

Abdul Ghafur Hamid @ Khin Maung Sein. 2002. Cases andMaterials on International

Law: A

Malaysian Version.Kuala Lumpur: Univision Press Sdn Bhd.

Jacob W.F Sundberg. 1999. "The Crime of Piracy"; M.Cherif Bassiouni. 1999.

International Criminal

Law.

New York: Transnational Publishers. p.441

Farhad Malekian. 1994. The Concept of Islamic International Criminal

Law:

A Comparative Stu&. UK: Graham & Totman.

Tunku Sofiah Jewa. 1996. Public International

Law:

A Malaysian Perspective.Kuala Lumpur: Pacifica Publication. Vol. I.