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Author : Dr Dheeraj Bhar
How Does Malaysian Law Deal With Acts of Piracy at Sea?
In the movies, pirates wear an eye patch, carry swords, fly the skull and crossbones on a black flag, and fire cannonballs at ships in the Caribbean before boarding them and stealing their gold. Modern pirates, equipped with GPS devices and fast outboard motors, are nothing like their film counterparts, but they are a troubling presence in Malaysian waters. Ships plying the waters of the Straits of Malacca, a key shipping route that links East Asia to Europe and Africa, are an inviting target for modern pirates. One-third of the world’s crude oil shipments pass through the Straits of Malacca, and oil has replaced gold as the bounty many pirates hope to capture.[1]
According to the International Maritime Bureau, pirate attacks surged in 2013.[2] During the first half of 2013, fifty-seven incidents were reported in Southeast Asia. During the last half of 2013, several attacks occurred in Malaysian waters, including:
November: A Panamanian-flagged oil tanker was boarded by ten armed pirates who tied up the crew before transferring the oil to their own tanker. The attack occurred about seven miles west of Pulau Kukup.[3]
October: A Thai-flagged oil tanker was boarded and held for days before pirates made off with its oil. That attack took place near Pulau Aur.[4]
October: Pirates unsuccessfully attacked a ship off Kuantan Port but the crew took evasive action that prevented the pirates from boarding.[5]
September: Eight armed pirates boarded a supply ship and stole its supplies as well as the personal belongings of its crew.[6]
As bad as these statistics and examples seem, the extent of the piracy problem is probably worse than official figures indicate. As many as half of all pirate raids go unreported because shipping companies want to avoid bad publicity.[7]
Oil tankers are not the only victims of piracy. Opportunistic pirates have hijacked fishing boats, including one that was stolen about 70 nautical miles from Penang in July 2013.[8] Yet pirates have become more cautious as enforcement efforts have increased. According to the chief of the Malaysian Maritime Enforcement Agency, pirate ships disguised as ferry boats or water taxis identify a worthwhile target, either because it is easy prey or is carrying a valuable cargo. A second pirate ship, disguised as a sea trader, will approach the identified vessel, offering to sell food or goods to the crew. The pirates attack the ship as crew members are making their purchases.[9]
Piracy is generally defined as the violent or forceful seizure of a vessel, cargo, or persons on the high seas, without the consent of owner of the seized goods and without governmental authorization, for the private enrichment of the pirates. Piracy is addressed both by international law and Malaysian law.
Piracy and International Law
The primary international law addressing piracy is the United Nations Convention on the Law of the Sea (UNCLOS).[10] The Convention broadly addresses the rights of ships and of nations in international and territorial waters, covering such diverse topics as economic zones, underwater cables, collisions of ships, and the navigation of submarines. The Convention recognizes that national sovereignty extends 12 nautical miles beyond a nation’s land territory to encompass its “territorial sea.”[11] As a general rule, ships from all nations may pass through the territorial sea in a continuous and expeditious manner, provided they do not enter a port facility or a nation’s internal waters without permission, and provided the passage is not “prejudicial to the peace, good order or security of the Coastal state.”[12] This right is known as “innocent passage.” Ships in transit are also entitled to innocent passage through straits that are used for international navigation, subject to the same restrictions.[13]
Apart from obvious act of war, military exercises, and acts of espionage, prejudicial acts include offloading cargo in violation of customs laws, fishing, survey and research activities, and acts that cause serious pollution.[14] Acts of piracy are reasonably deemed prejudicial to a nation’s good order. Nations have the sovereign authority to police and enforce violations of UNCLOS within their territorial seas and straits.[15] For that reason, international law permits a nation to police piracy within its territorial waters, regardless of the nationality of the pirates or the ownership of the vessel under attack.
The “high seas,” defined as all parts of the sea that are not part of a nation’s internal or territorial waters, or the archipelagic waters of an archipelagic state, or parts of the sea that fall within an exclusive economic zone, are open to all ships of all nations, including landlocked nations.[16] Ships flying any nation’s flag are entitled to sail the high seas.[17] Freedom of the high seas, however, is reserved for peaceful purposes.[18]
Acts of piracy on the high seas are primarily addressed in articles 100 to 107 and article 110 of UNCLOS. Member states are required “to cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state.”[19] The piracy provisions of UNCLOS extend to aircraft as well as ships.[20]
A “pirate ship” is defined as any ship intended by the person controlling the ship to be used in an act of piracy.[21] Any nation is entitled to seize a pirate ship or a ship that has been captured by pirates, and may arrest the pirates and seize their property. The seizure must be carried out by a warship or military aircraft, or by a clearly marked ship or aircraft in government service.[22] A warship must have reasonable grounds for suspecting a ship is engaged in piracy before boarding that ship.[23] The courts of the nation that seizes a pirate ship may decide how to punish the pirates and how to dispose of their property, subject to the rights of innocent third parties.[24] If a ship is flying a national flag and is seized without adequate cause, the nation of the flagged ship is entitled to pursue the offending nation for damages.[25]
Piracy and Malaysian Law
The Federal Constitution of Malaysia contains no provision that automatically adopts international law and conventions as the law of Malaysia. Accordingly, rules or conventions of international law (including the prohibition of piracy in UNCLOS) do not become part of Malaysia’s domestic law unless the Malaysian government takes action to adopt those laws. Piracy is not a specific offense under Malaysian law,[26] although the legislature has considered enacting an anti-piracy law. [27] Pirates must therefore be charged with violating some other substantive criminal provision, such as gang-robbery.
If an act is illegal under the Laws of Malaysia, a Malaysian citizen or permanent resident who commits that act on the high seas, or any person who commits that act on the high seas on a ship that is registered in Malaysia, can be punished for that crime by a Malaysian court.[28] This extension of “extraterritorial jurisdiction” to the high seas permits Malaysian authorities to prosecute pirates who attack a Malaysian ship and commit acts (such as robbery or gang robbery) that would be crimes if committed within the borders of Malaysia. Jurisdiction to try such offenses is conferred on the High Court by the Courts of Judicature Act 1964, as amended.[29] That Act also gives the High Court jurisdiction to try offenses committed “by any person on the high seas where the offense is piracy by the law of nations.”[30] The latter provision embodies the concept of “universal jurisdiction” and appears to confer jurisdiction to try violations of UNCLOS. It is not clear, however, whether conduct prohibited by UNCLOS can be tried if it is not specifically criminalized by Malaysian law, given the distinction between the triability of an offense and jurisdiction to try the offense.[31]
Finally, the High Court has jurisdiction to try offenses against the state or any offense certified by the Attorney General to affect the security of Malaysia when such offenses are committed on the high seas by a citizen or permanent resident of Malaysia or on board a ship registered in Malaysia.[32] That provision of the law provided the jurisdictional foundation for a recent piracy prosecution.
In February 2011, prosecutors charged seven Somali pirates with discharging a firearm with the intent to cause death during the commission of a criminal offense. The Somali pirates were captured by Malaysian naval forces in the Gulf of Aden. The pirates were accused of shooting at naval personnel who had stormed a hijacked chemical tanker that the pirates had seized. The tanker was owned by a Japanese firm but operated by a Malaysian company. Prosecutors argued that the court had jurisdiction because the pirates threatened the security of Malaysian citizens. Whether that argument satisfied jurisdictional statutes is uncertain, given that the ship was not registered in Malaysia.[33] The defense moved to dismiss the charges on the ground that the crime occurred in international waters, beyond the territorial jurisdiction of Malaysia. The court denied that motion.[34] The pirates eventually entered into a plea agreement and entered guilty pleas to reduced charges of discharging a firearm with the intent to avoid arrest, a crime that is not subject to the death penalty. They were each sentenced to a term of incarceration.[35] Since the defendants entered guilty pleas, the jurisdictional issue was never tested on appeal.
Acts of piracy that occur within Malaysian waters (the “Malaysian Maritime Zone”) are policed by the Malaysian Maritime Enforcement Agency (MMEA). The agency was established in 2004.[36] The Malaysian Maritime Zone includes Malaysia’s internal waters, its territorial sea, its continental shelf, its exclusive economic zone, and the Malaysian fisheries zone.[37] The exclusive economic zone extends 200 nautical miles from Malaysia’s coast. The MMEA is charged with maintaining law and order, protecting peace, safety and security, preventing and detecting crime, apprehending and prosecuting criminals, and collecting security intelligence within the Malaysian Maritime Zone.[38] The MMEA is specifically charged with preventing and suppressing piracy[39] and is empowered to stop, enter, board, inspect, and detain any vessel and to arrest its occupants if it has reason to believe an offense has been committed.[40] Prosecution of a person MMEA arrests requires the consent of the public prosecutor.[41] The MMEA is required to respect the right of innocent passage established by UNCLOS,[42] but as we have seen, innocent passage does not include the commission of acts of piracy.
In short, since acts of piracy generally involve the commission of some other crime that is expressly defined by Malaysia’s criminal code, those substantive offenses can be tried in Malaysian courts if they are committed in Malaysia’s maritime zone, or if they are committed on the high seas by Malaysian citizens or on a ship registered in Malaysia. Given the present state of Malaysian law, doubt about the power to prosecute pirates in Malaysian courts only arises when an act of piracy affects Malaysians on the high seas but is not committed by Malaysians and does not occur on a ship that is registered in Malaysia.
[1] Writer Tracks Modern Day Pirates in Malaysia, NPR (Oct 13, 2007), available at http://www.npr.org/templates/story/story.php?storyId=15170359. [2] Oil Tanker Hijacked Off Malaysia, Bangkok Post (Nov 8, 2013), available at http://www.bangkokpost.com/breakingnews/378868/pirates-seize-oil-tanker-off-malaysia. [3] Schuyler, Mike, Pirates Hijack Product Tanker off Malaysia, Steal Cargo, gCaptain, Nov 8, 2013, available at http://gcaptain.com/pirates-hijack-product-tanker-off-malaysia/. [4] Id. [5] Id. [6] Bangkok Post, supra n. 2. [7] NPR, supra n. 1. [8] Looi, Sylvia, MMEA’s presence help curb piracy in Malacca Straits, New Straits Times (Nov 1, 2013), available at http://www.nst.com.my/latest/mmea-s-presence-help-curb-piracy-in-malacca-straits-1.390015. [9] Shah, Mohd Farhaan, Pirates Masquerading as Traders, The Star (Sep 25, 2013). [10] United Nations Convention of the Law of the Sea, available at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm. [11] Id., arts. 2 & 3. [12] Id., arts. 17 to 19. [13] Id., arts. 38 to 45. [14] Id., art. 19. [15] Id., art. 25. [16] Id., arts. 86 & 87. [17] Id., art. 90. [18] Id., art. 88. [19] Id., art. 100. [20] Id., art. 101. [21] Id., art. 103. [22] Id., art. 107. [23] Id., art. 110. [24] Id., art. 105. [25] Id., art. 106. [26] Siti Aliza Binti Alias, Malaysia’s Country Report for CIL Research Project on International Maritime Crimes (2010), available at http://cil.nus.edu.sg/wp/wp-content/uploads/2010/10/Malaysias-Country-Report.pdf. [27] Mergawati Zulfakar, National anti-piracy law in the pipeline, The Star (May 20, 2009), available at http://www.thestar.com.my/story.aspx?file=%2f2009%2f5%2f20%2fnation%2f3942722&sec=nation. [28] Extra-Territorial Offenses Act 1976, Laws of Malaysia, Act 163. [29] Courts of Judicature Act 1964, Laws of Malaysia, Act 91, § 22. [30] Id., § 22(1)(a)(4). [31] Rajappan v. PP [1986] 1 CLJ 175. [32] Id., § 22(b). [33] Melda Marissa Malek, Malaysia needs to overcome major legal hurdles to fight high-seas piracy, The Star (Feb 7, 2011). [34] Christine Hentze, Weekly Piracy Review – Chinese and Malay Prosecutions, Communis Hostis Omnium (Sept 28, 2012), available at http://piracy-law.com/2012/09/28/weekly-piracy-review-chinese-and-malay-prosecutions/. [35] Somalia nationals jailed for firing at Malaysian soldiers, The Sun Daily (Sept 2, 2013), available at http://www.thesundaily.my/news/819466. [36] Malyasian Maritime Enforcement Agency Act 2004, Laws of Malaysia, Act 633. [37] Id., § 2. [38] Id., § 3. [39] Id., § 6. [40] Id., § 7. [41] Id., § 8. [42] Id., § 7.
