Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698837118526.pdf (Malaysia)
Terrorism & The Overview on Impacts Towards Government Policies in Malaysia, The United States and The United Kingdom Noraini Othman,* Mohd Sharazad Saiful Bahri,** Hazliana Yahaya*** and Augustine Leonard Jen**** Abstract The terrorist acts that occur around the world, with a significant incident of September 11, have brought about changes in government policies not only in Western countries but also in Malaysia.
In fact, the introduction of the Security Offences (Special Measures) Act (SOSMA) 2012 in Malaysia is one of the significant legislations in combating terrorism.

Anti-Terrorism legislation is, without a doubt, a sine qua non for countries in pursuit of their states’ stability and security.
Therefore, this article evaluates the impacts of terrorism on government policies in Malaysia, the United States and the United Kingdom and emphasis will be placed on whether the policies, i.e., the domestic legislation carried out, manage to play a significant role in combating terrorism.

Keywords: Terrorism, SOSMA, Terrorism Act 2006, PATRIOT Act 2001, POTA 2015 Introduction Terrorism is a pervasive risk capable of causing tremendous harm, loss of life, and economic disruption.
Governments across the globe have been compelled to implement steps to prevent, minimise, and respond to terrorist activities.

Terrorism challenges the sovereignty of a state because * Noraini Othman is Research Officer at the Parliament of Malaysia.

Email: noraini@ parlimen.gov.my.

** Mohd Sharazad Saiful Bahri is Research Officer at the Parliament of Malaysia.

Email: msharazad@parlimen.gov.my.

*** Hazliana Yahaya is Research Officer at the Parliament of Malaysia.

Email: hazliana.
Email: hazliana.

yahaya@parlimen.gov.my.

**** Augustine Leonard Jen Research Officer at the Parliament of Malaysia.

Email: augustine@parlimen.gov.my.

Terrorism & The Overview on Impacts Towards Government Policies 195 it questions the state’s ability to protect its citizens against violence, and therefore, the States needs to be perceived as acting against it.
After the event of 9/11, it also constitutes a challenge to the nature of the State in international law and to the international community as a whole.

Terrorism’s effects on government policies are complicated, nuanced, and country-specific.

This study examines the impact of terrorism on the legislative policies of Malaysia, the United States, and the United Kingdom.

In addition, the study will investigate the government’s legislative approach to handling terrorism-related crime.
The study will employ a comparative methodology to examine the influence of terrorism on the legislative policies of these three nations.

This method will allow us to compare and contrast the legislation adopted by these nations in response to terrorist threats.

The focus of the analysis will be on the legal frameworks established to combat terrorism, as well as the actions taken to address the fundamental causes of terrorism.
Malaysia, the United States, and the United Kingdom have faced different terrorist attacks and developed distinct anti-terrorism strategies.

As a result, domestic and international terrorist organisations have threatened Malaysia, whilst international terrorist organisations have targeted the United States and the United Kingdom.

In addition, the legislation adopted by these nations in response to terrorism has changed with the nature and breadth of the threat over time.
Policymakers, security specialists, and scholars interested in counterterrorism will find this study’s conclusions extremely relevant.

The study will contribute to comprehending the efforts in combating terrorism and the function of legislation in addressing this threat.

It will also shed light on the efficacy of various legislative options and the lessons that can be drawn from the experiences of these three nations.

What Constitutes Terrorism or Terrorist Acts?


There is no universal definition of what constitutes terrorism or terrorist acts.

Various legal systems come out with various definitions, and no consensus has ever been achieved on a single legally binding definition.
True, various terrorism concepts among the states have led to different legislations enacted in combating terrorism.1 1 In 1994, the United National General Assembly came out with a resolution 49/60 that defined terrorism which includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes” and that such acts “are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.” 196 Journal of the Malaysian Parliament In the United Kingdom, the legal definition of terrorism is provided in Section 1 of the Terrorism Act 2000.
This defines terrorism as the use or threat of action that involves serious violence against a person, involves serious damage to property, endangers a person’s life, creates a serious risk to the health or safety of the public, or is designed seriously to interfere with or seriously disrupt an electronic system.
These acts are carried out in circumstances where the use or threat is designed to influence the government or intimidate the public or a section of the public, and the use or threat is made to advance a political, religious, or ideological cause.
Meanwhile, in the United States, Section 802 of the USA Patriot Act of 2001 defines terrorism whereby a person engages in domestic terrorism if they do an act “dangerous to human life” that is a violation of the criminal laws of a state or the United States if the act appears to be intended to intimidate or coerce a civilian population; influence the policy of a government by intimidation or coercion; or affect the conduct of a government by mass destruction, assassination or kidnapping.
Section 802 of the USA Patriot Act of 2001 expanded the definition of terrorism to cover “domestic”, as opposed to international terrorism.

Section 802 does not create a new crime of domestic terrorism.

However, it expands the type of conduct that the government can investigate when investigating “terrorism”.
The USA Patriot Act expanded governmental powers to investigate terrorism, and some of these powers are applicable to domestic terrorism.2 In Malaysia, Section 130B(2) of the Penal Code (Act 574) defines terrorism as any act that is done with the intention of causing death or serious bodily injury to any person; or causing extensive destruction to a place or property; or causing serious disruption of any essential service, facility or system; or creating a public emergency.
The section further elaborates on terrorism to include any act intended to intimidate the public or a section of the public, disrupt any public service or facility, or create fear and panic among the people.

Malaysia Terrorism is a major global threat that has significantly impacted how countries’ approach national security and criminal justice.
The rise of terrorism in Malaysia can be traced back to the late 1990s and early 2000s, 2 ‘Redefines “Domestic Terrorism” <https://home.csulb.edu/~cwallis/382/ readings/160/ACLU%20Concerns.html> accessed 2 March 2023.

Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 197 when regional and international terrorist groups began to target the country.
This included groups such as Jemaah Islamiyah and the Abu Sayyaf Group, which aimed to establish an Islamic state in Southeast Asia and carry out attacks against Western interests.

Internal Security Act (ISA) 1960 In response to this threat, the government of Malaysia introduced the Internal Security Act (ISA) in 1960, which granted sweeping powers to the police and security forces to detain and interrogate suspected terrorists.
However, the ISA was heavily criticised for its lack of due process and the long periods of detention without trial under the Act.

In 2012, the ISA was repealed and replaced with the Security Offences (Special Measures) Act 2012, commonly known as SOSMA.
The law is intended to address security offences such as terrorism, espionage, and acts of sabotage and provides special measures to be taken by the authorities in the investigation, prosecution, and detention of individuals suspected of committing such offences.

The ISA has been used in a politically motivated and discriminatory manner to target non-violent members of civil society whom the government sees as a threat.
Since its commencement, more than 4,000 individuals3 have been imprisoned under the ISA.

However, it was heavily criticised for its lack of due process and the long periods of detention without trial that it allowed.

After the repeal of the Internal Security Act (ISA) 1960 (Act 82) in September 2011, the Malaysian government strengthened its legal framework to address this threat.

The following legislation represents Malaysia’s legal framework used to take action against terrorists.
The Penal Code (Act 574) The Penal Code is a key component of our criminal law and includes provisions for making terrorism and other related offences illegal.

These offences of terrorism, spelt out under Section 130B, involve financing terrorism, sheltering terrorists, aiding terrorists, and encouraging or promoting terrorism.

Punishments for these offences are severe under the Penal Code and can result in up to 30 years imprisonment, life imprisonment, or the death penalty.
3 Amnesty International March 2003< https://www.amnesty.org/fr/wpcontent/ uploads/2021/06/asa280062003en.pdf >accessed 28 February 2023.

198 Journal of the Malaysian Parliament The offence of terrorism is considered a serious crime in Malaysia, and any person convicted of the offence may face severe penalties, including life imprisonment.
Furthermore, the section includes provisions for the punishment of anyone who provides or collects funds with the intention of supporting a terrorist act or organisation.

It also covers the offence of promoting or supporting terrorist activities through any means, including propaganda, recruitment, and training.

The Security Offences (Special Measures) Act 2012 (SOSMA) SOSMA was passed in 2012 to replace the Internal Security Act (ISA) of 1960.
Like the ISA, SOSMA is a security law meant to preserve and protect national security.

Under the act, a person suspected of committing security offences can be detained for up to 28 days,4with the possibility of further extension up to a maximum of 60 days with the approval of the Public Prosecutor.

This extended detention period allows law enforcement agencies to conduct a more thorough investigation, as they are given more time to gather evidence and question suspects.
One major criticism of SOSMA is that it allows for detention without trial, which is a violation of the right to a fair trial and due process.

This means that individuals can be detained for an extended period without being charged or given the opportunity to defend themselves in court.

Additionally, the lack of oversight and accountability mechanisms in SOSMA may also lead to abuse of power by authorities.
In particular, there have been several high-profile cases of individuals arrested and detained under SOSMA for their political activities, for example, in the case of Maria Chin binti Abdullah, Datuk Seri Khairuddin Abu Hassan and Matthias Chang.5 The Prevention of Crime (Amendment and Extension) Act 2014 (POCA) POCA was initially legislated in 1959 to address serious and organised crime in Peninsular Malaysia.
However, it was amended in 2014 to expand its application to all states in Malaysia and to include terrorism offences in its application.

POCA is a preventive law where an independent board (Prevention of Crime Board) may detain for up to two (2) years or restrict for up to five (5) years6 any person whom the board has 4 Special Offences (Special Measures) Act, Section 4(5).

5 Hansard of Dewan Rakyat, 26 July 2022.

6 Prevention of Crime (Amendment and Extensions) Act 2014, Section 15.
Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 199 reason to believe to be involved in serious crimes or terrorism activities.

In addition, POCA allows the application of an electronic monitoring device (EMD)7 on any person under a restriction order to detect and monitor the person’s movement.

The Prevention of Terrorism Act 2015 (POTA) Similar to POCA, POTA is also a preventive law enacted in 2015.
An independentboard may detain up to two (2) years or restrict up to five (5) years8 – any person whom the board has reason to believe to be involved in the commission or support of terrorist acts involving “listed terrorist organisations” in a foreign country.

The listed terrorist organisation under POTA is a specified entity declared under sections 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing, and Proceeds of Unlawful Activities Act 2001.
POTA also allows the application of an electronic monitoring device (EMD)9 on any person under restriction to detect and monitor the person’s movement.

One of the key provisions of the act is the creation of special detention centres, where individuals suspected of terrorist activities can be detained without trial for up to two years.10 This provision has been criticised by human rights groups, who argue that it violates the right to due process.
It is argued that POTA is too broad and gives the government too much power,11 and the law allows the detention of individuals without trial, which is a violation of their human rights.

Provisions under POTA induced criticisms among human rightists due to the ousting of judicial controls12 under the scheme, which raised concern as to where the principled criminal procedure and justice is heading when there is no check and balance available.
Special Measures Against Terrorism in Foreign Countries Act 2015 (SMATA) SMATA was legislated in June 2015 as a special measure to deal with persons who engage in the commission or support of terrorist acts in foreign countries.

The act was specially made to address the growing 7 Prevention of Crime (Amendment and Extensions) Act 2014, Section 7A.

8 Prevention of Terrorism Act 2015, Section 17(1).

9 Prevention of Terrorism Act 2015, Section 6(2).

10 Prevention of Terrorism Act 2015, Section 13(1).
11 The Impact Of Anti-Terrorism Law and Policy On Criminal Justice System: A Case Study Of Malaysia[2017] 5 MLJ lxxxvi< https://www.hrw.org/news/2015/04/07/ hrw-slams-malaysias-new-repressive-anti-terrorism-law>accessed 3 March 2023 12 Prevention of Terrorism Act 2015, Section 19.

200 Journal of the Malaysian Parliament international threat of foreign terrorist fighters (FTF), particularly the Islamic State (IS).
SMATA is applicable when terrorism activities involving any entity or group are declared under sections 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing, and Proceeds of Unlawful Activities Act 2001.
In addition, under SMATA, the authorities (the Director General of Immigration and the Minister of Home Affairs) may suspend, revoke or hold travel documents (including foreign travel documents) if police suspect the person is travelling to foreign countries to participate in terrorism activities.
Extradition and Mutual Assistance in Criminal Matters Extradition is the act of physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.13 Persons subject to extradition in existing treaties are individuals known to have committed acts of international terrorism, to have attempted to commit acts of international terrorism or to have aided and abetted terrorist acts, at least in some cases.
Malaysia also has legislated laws relating to extradition and mutual assistance in criminal matters.

Under these legal frameworks, i.e., the Extradition Act 199214 and the Mutual Assistance in Criminal Matters 2002,15 several countries have made treaties.

Both treaties have been very useful in curbing the movement of fugitive criminals (including terrorists) and rendering assistance for prosecution in other countries.
Terrorism Financing In terms of countering the financing of terrorism, Malaysia has comprehensive legislation that criminalises terrorism financing, which provides a penalty of up to 30 years of imprisonment (Penal Code s. 130N).16 Terrorism financing offence is also provided under section 66B(4) of the Anti-Money Laundering, Anti-Terrorism Financing 13 Sadoff, David A.

(24 December 2016).

Bringing International Fugitives to Justice: Extradition and its Alternatives.

Cambridge University Press.


14 Government of Malaysia, ‘Extradition Act 1992 [Act 479]’ (Malaysia Federal Legislation, 20 February 1992) <https://lom.agc.gov.my/ilims/upload/portal/akta/ outputaktap/Salinan%20warta%20Akta%20479.pdf> accessed 14 January 2023.

15 Government of Malaysia, ‘Mutual Assistance In Criminal Matters Act 2002 [Act 621]’ (Malaysia Federal Legislation, 30 May 2002) <https://lom.agc.gov.my/act-detail.

php?act=621&lang=BI> accessed 14 January 2023.


16 Government of Malaysia, ‘Penal Code (Amendment) Act 2003 [Act A1210]’ (Laws of Malaysia, 25 December 2003) <https://www.lawnet.com.my/eGazette/ Download/?ID=10292> accessed 14 January 2023.
Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 201 and Proceeds of Unlawful Activities (AMLATFPUAA) Act 2001,17 where making funds available to listed individuals or entities may be punished severely, i.e., up to RM 3 million of fine and/or five years of imprisonment.

AMLATFPUAA 2001 provides the legal framework for the Malaysian AMLCFT regime.
Under the AMLCFT regime, Malaysia has implemented targeted financial sanctions (TFS) as part of its measures to prevent the financing of terrorism.

Malaysia’s TFS regime complies18 with the Financial Action Task Force (FATF) standard, where Malaysia is able to give effects to the ISIL (Daesh) and Al-Qaida Sanctions List as designated by the Committee established pursuant to Resolutions 1267 (1999) and 1989 (2011).

The TFS targeted financial sanctions in Malaysia to adhere to the regulations of UNSCR 1373.
As of 31 May 2019, Malaysia has identified 31 individuals and 28 groups that are linked with terrorist activities as “specified entities” who are now subject to asset-freezing.19 Measures Taken by The National Security Council in Countering Terrorism in Malaysia The National Security Council of the Prime Minister’s Department is responsible for developing national security policies and organising their execution by various government departments, especially those involved in security.
They have established numerous security measures, including regular anti-terrorism exercises in critical national infrastructure and the International Ships and Port Facility Security Code (ISPS Code) in maritime zones.
Malaysia’s Counter-Terrorism Strategy In addressing the threat of terrorism, Malaysia has adopted a multipronged strategy involving hard and soft approaches, namely 17 Government of Malaysia, ‘Anti-money Laundering, Anti-terrorism Financing And Proceeds Of Unlawful Activities Act 2001 [Act 613]’ (Malaysia Federal Legislation, 5 July 2001) <https://lom.agc.gov.my/ilims/upload/portal/akta/ outputaktap/1719599_BI/010722_Act%20613_final.pdf> accessed 14 January 2023.
18 Bank negara Malaysia, ‘Maintaining Financial Integrity’ (BNM Annual Report 2019, Economic & Monetary Review 2019, and Financial Stability Review 2nd Half 2019, 14 January 2023) <https://www.bnm.gov.my/documents/20124/2724769/ ar2019_en_full.pdf> accessed 14 January 2023.

19 Parliament of Malaysia, ‘10th AIPA Caucus Report’ (10th ASEAN Inter- parliamentary Assembly (AIPA) Caucus Meeting Kuala Lumpur, Malaysia 16-19 June 2019, 20 June 2019) <https://www.parlimen.gov.my/laman-aipa-cucus.
html?&view=1704&uweb=p&lang=en> accessed 14 January 2023.
202 Journal of the Malaysian Parliament preparedness, prevention, response and recovery, which includes, inter alia, enhanced intelligence and international cooperation, enhanced legislative, law enforcement, and border security, protecting national critical infrastructures and soft targets and others.20 (a) Establishment of Counter Messaging Centre (CMC) The Counter Messaging Centre under the Royal Malaysia Police (RMP) has been fully operational since December 2017.
The establishment was first announced in November 2016 to counter the narratives of terrorists and extremists, especially in cyberspace and one of the targets is to counter false claims and religious misinterpretations that are being propagated by Daesh and seek to engage with those vulnerable online communities that are easy prey for Daesh recruiters.

In terms of the operation, CMC uses the MICE approach, which refers to Monitoring, Investigation, Countering and Executive action.
(b) Digital Counter Messaging Centre (DSCD) in SEARCCT, Wisma Putra, Malaysia On 8 May 2015, the United States approached SEARCCT and proposed the establishment of a Regional Counter-Terrorism Digital Communications Centre to be hosted at the Southeast Asia Regional Centre for Counter- Terrorism (SEARCCT).

The purpose of the proposed Centre was to counter Daesh’s messaging and provide subsequent counter-narratives.
This US-led initiative was followed by a USD500,000 grant, which was utilised for infrastructure, hardware, software and training.

Specifically, the Centre looks into four main areas, namely (i) monitoring the terrorist messaging; (ii) developing counter-narratives; (iii) developing counter- messaging end-products; and (iv) disseminating the digital end-products to best reach and impact the targeted audience.
Border security is very important to prevent illegal entry and the intrusion of terrorist elements into Malaysia’s territory.
Border security agencies include the Immigration Department, Royal Malaysia Police (General Operation Force), Malaysia Armed Forces, Royal Malaysia Customs Department, Malaysia Maritime Enforcement Agency, Border 20 Parliament of Malaysia, ‘10th AIPA Caucus Report’ (10th ASEAN Inter- parliamentary Assembly (AIPA) Caucus Meeting Kuala Lumpur, Malaysia 16-19 June 2019, 20 June 2019) <https://www.parlimen.gov.my/laman-aipa-cucus.

html?&view=1704&uweb=p&lang=en> accessed 14 January 2023.
Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 203 Control Agency (AKSEM), and the Eastern Sabah Security Command (ESSCOM).
In order to enhance border security, various steps have been taken, including tightening the screening process at borders and entry points, implementing control systems at various entry points, such as the National Enforcement and Registration Biometrics System (NERS), the Immigration Screening System (MyImms) and cooperating with international organisations such as the INTERPOL through the various relevant applications and databases, Stolen and Lost Travel Documents (SLTD), INTERPOL’s i-24/7 and notices, as well as the UN Security Council Sanction List.21 While Malaysia’s counterterrorism efforts have succeeded, preventing low-tech lone-wolf strikes inspired by IS remains difficult.
As a result, Malaysia has chosen a combination of “hard” and “soft” tactics to handle the issue, emphasising that a military solution alone is insufficient to combat radicalisation and violent extremism.

Concerning the protection of soft targets, the Malaysian Cabinet approved the Guidelines on Enhancing the Security of Public Places and Facilities from Terrorist Attacks on 7th March 2018.
This guideline was a reference for government agencies, the private sector and the public to protect themselves from terrorist attacks.

Engagement includes programmes designed to win the target groups’ hearts and minds to neutralise or win them over.

Some programmes are awareness lectures and Friday sermons to the public on the threat of radicalism, militancy and terrorism.
NSC conducted not less than 20 Lecture Programmes and Executive Talks in collaboration with other agencies such as the Special Branch, the Social Welfare Department, the Department of National Unity and Integration (JPNIN) etc.

These programmes are intended to raise public awareness about the dangers of the IS threat.
The United States During most years, the United States experienced few terrorist events on its soil – e.g., in 1998, 2000, and the years following 2001, there were no terrorist events in the United States (Sandler and Enders, 2004; US Department of State, 1999-2004).
Terrorism alters economic behaviour, 21 Parliament of Malaysia, ‘10th AIPA Caucus Report’ (10th ASEAN Inter- parliamentary Assembly (AIPA) Caucus Meeting Kuala Lumpur, Malaysia 16-19 June 2019, 20 June 2019) <https://www.parlimen.gov.my/laman-aipa-cucus.

html?&view=1704&uweb=p&lang=en> accessed 14 January 2023.
204 Journal of the Malaysian Parliament primarily by changing investment and consumption patterns as well as diverting public and private resources away from productive activities and towards protective measures.

Terrorism destroys capital and reduces the economic capacity of the country affected.

It was estimated that the economic impact of terrorism was USD 33 billion in 2018.
In the 18 years from 2000 to 2018, terrorism cost the world economy USD 855 billion.22 Terrorism has had a significant impact on the United States regarding the human toll of attacks and the economic and political repercussions.

For example, the 9/11 terrorist attacks, carried out by Al-Qaeda, resulted in the deaths of nearly 3,000 people23 and caused billions of dollars in damage.
This event led to the passing of the USA PATRIOT Act, which expanded the government’s surveillance and law enforcement powers.

Anti-terrorism laws and policies in the US have been a source of controversy, with some arguing that they infringe on civil liberties and civil rights.

The Patriot Act 2001, for example, has been criticised for its provisions allowing for monitoring electronic24 communications and searching personal records without a warrant.
Additionally, drone strikes, targeted killings, extraordinary rendition and enhanced interrogation techniques have been controversial and criticised for human rights violations.

The government’s use of the state secrets privilege to prevent litigation has also been controversial.
Furthermore, the government’s use of no-fly lists and watchlists has been criticised for racial and religious profiling and a lack of due process.25 The 1995 Oklahoma City bombing prompted the Clinton administration to pass the “Antiterrorism and Effective Death Penalty Act of 1996”.

Following the September 11 terrorist attacks against the United States, the Patriot Act, also known as the USA PATRIOT Act, was approved by the U.S. Congress and signed into law by President George W. Bush on October 26, 2001.
In September 2002, the U.S. national security strategy 22 ‘The Economic Impact of Terrorism from 2000 to 2018’ <https://econpapers.repec.

org/article> accessed 1 March 2023.

23 ‘Two Decades Later, the Enduring Legacy of 9/11’ <https://www.pewresearch.

org/politics/2021/09/02/two-decades-later-the-enduring-legacy-of-9-11> accessed 1 March 2023.

24 ‘Surveillance Under The Patriot Act’ <https://www.aclu.org/issues/privacy- surveillance> accessed 1 March 2023.
25 ‘Extraordinary Rendition, Extraterritorial Detention and Treatment of Detainees: Restoring Our Moral Credibility and Strengthening Our Diplomatic Standing’ <https:// https://www.govinfo.gov/content/pkg/CHRG-110shrg40379/html/CHRG- 110shrg40379.htm> accessed 1 March 2023.
Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 205 defined terrorism as “premeditated, politically motivated violence against innocents”.26 Doe V. Holder27 (Challenging Patriot Act’s National Security Letter Provision and Associate Gag Provision) The USA Patriot Act has been at the centre of debates ever since it was passed 45 days after the terrorist attacks of September 11, 2001.

It calls into question the delicate balance between personal freedom and national security.
A National Security Letter (NSL) sent to an Internet Service Provider (ISP) under the Patriot Act was made known to the New York Civil Liberties Union (NYCLU) and American Civil Liberties Union (ACLU) in 2004.

Along with the NSL recipient, the NYCLU and ACLU filed a lawsuit contesting the legality of Section 2709.

The lawsuit claimed that both on its face and when applied to the case’s facts, the Act is unconstitutional.
The plaintiffs claimed that the First, Fourth, and Fifth Amendments are violated by Section 2709’s extensive subpoena power.

Section 505 and The National Security Letter Lawsuit Section 505 of the USA PATRIOT Act, also known as the “National Security Letter” (NSL) provision, allows the FBI to issue NSLs to obtain certain types of sensitive information,28 such as financial and telephone records, without a warrant or court order.
NSLs are issued by FBI field offices and are used in national security investigations.

They are not subject to judicial review before they are issued, but recipients can challenge them in court.

As a result, NSLs have been the subject of several lawsuits challenging their constitutionality.

One notable lawsuit is Doe v. Mukasey, in which a group of anonymous plaintiffs, including an internet service provider and a library, challenged the constitutionality of Section 505 of the USA PATRIOT Act.
The plaintiffs argued that the NSL provision violates the First and Fourth Amendments of the Constitution by allowing the government to obtain sensitive information without a warrant or court order and by imposing 26 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001 – Authenticated U.S. Government Information GPO, Public Law 107–56—OCT.

26, 2001.

27 https://www.aclu.org/cases/doe-v-holder (2004).


28 Andrew E. Nieland, ‘National Security Letters and the Amended Patriot Act’ (2007) 92 Cornell L. Rev.

1201 < https://core.ac.uk/download/pdf/216736213.pdf> accessed 1 March 2023.

206 Journal of the Malaysian Parliament a gag order on recipients of NSLs, which prevents them from discussing the letters or even acknowledging their existence.
The case was eventually dismissed by the court for lack of standing, as the plaintiffs could not prove that they had received an NSL.

However, the court’s ruling did not address the constitutional issues raised by the plaintiffs.

The Supreme Court’s actions, which have mainly revolved around the detention of terror detainees at Guantanamo Bay, have received mixed reviews in the United States.
According to the 2004 Hamdi v. Rumsfield ruling, detainees who were citizens of the United States had the right to habeas corpus even if they were labelled as “enemy combatants”.29 In another case, it was held by the court that the proposed military commissions for prosecuting terrorism suspects were deemed to violate the four Geneva Conventions and the Uniform Code of Military Justice in the 2006 Hamdan v. Rumsfield ruling.30 Terrorism Risk Insurance Act – The Other Side of The Coin United States President George W. Bush signed the Terrorism Risk Insurance Act into law on November 26, 2002.
The Act created a federal “backstop” for insurance claims related to acts of terrorism.

Four ideal components of an insurable risk are listed in a well-known insurance textbook: Losses must be definite, measurable, accidental, fortuitous, and not catastrophic (i.e., unlikely to result in losses for a significant portion of the risks at the same time).

There must also be enough insureds to make losses reasonably predictable.
Given that terrorism losses have not been shown to be predictable over time, the United States’ terrorism risk fails the first requirement.

When losses are caused by terrorism, they are typically concrete and quantifiable, so the terrorist risk may satisfy criterion two.
However, due to the malicious human actors that perpetrate terrorist acts, whose objectives, attack methods and targets are constantly changing.31 The underwriting decisions made by insurers themselves significantly determine whether it fails the fourth criterion (i.e., whether the insurers insure a large number of risks in a single geographic area that would 29 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

30 Hamdan v. Rumsfeld, 547 U.S. 1016 (2006).


31 Terrorism Risk Insurance: Overview and Issue Analysis for the 116th Congress, Congressional Research Service https://crsreports.congress.gov R45707 accessed at https://sgp.fas.org/crs/terror/R45707.pdf.

Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 207 be affected by a terrorist strike).
It is understandable that insurers have generally sought to minimise their risks in specific geographic regions with a theoretically higher potential for terrorist strikes, making terrorism insurance more challenging to find in those areas.
In response to the 9/11 terrorist attacks, the United States government has taken a number of actions to combat terrorism, including the passage of the USA PATRIOT Act, the creation of the Department of Homeland Security, and the initiation of military operations in Afghanistan and Iraq.

Some of these actions have been criticised for violating American citizens’ civil liberties and human rights.
This can be seen as an erosion of the country’s sovereignty as it involves the government compromising its citizens’ rights.

Additionally, the United States’ actions in response to terrorism, such as targeted killings, have been criticised by other nations and international organisations as violating international law and undermining the sovereignty of other nations.
The US’s foreign policy post 9/11 is seen by some as overly aggressive and militaristic, which has strained relations with other nations and led to a loss of trust and credibility in the international community.

Furthermore, the government’s increased security measures, such as the collection of personal data, profiling and surveillance, have been criticised for violating civil liberties and privacy rights, further undermining the nation’s sovereignty.
Since terrorism casts doubt on a state’s ability to defend its inhabitants from violence, the state must be seen acting against it to maintain its sovereignty.

Following the 9/11 attacks, it also poses a challenge to both the international community as a whole and the definition of the state under international law.

The Fight Goes On The recent assaults in London, as well as in Paris, Berlin, and Madrid, have made the struggle against terrorism even more urgent for Western democracies.
The real cost of the bloodshed is still unknown to researchers and the government, despite ongoing terrorist violence.

Governments have commissioned studies on the “costs” of terrorism to examine the financial losses incurred by cities in the aftermath, but there is little data on how terrorism affects public opinion and personal well-being.
This is partially because the indirect costs of terrorism, such as heightened fear and anxiety or an aversion to outgroups, are harder to quantify than the direct costs, such as a decline in national productivity.

208 Journal of the Malaysian Parliament In the United States, one new organisation was identified by the Department of State as a foreign terrorist organisation (FTO)32 in 2020.

Under the Department’s authority granted by Executive Order (E.O.)
13224, 13 organisations and people were also classified as Specially Designated Global Terrorists.
In one of the latest cases, the United States District Court for the Eastern District of New York on February 24, 2023, charged Mohammad Ibrahim Bazzi (a Lebanese and Belgian citizen) and Talal Chahine (a Lebanese citizen) with conspiracy to conduct and cause United States persons to conduct unlawful transactions with a Specially Designated Global Terrorist, attempt to conduct and cause United States persons to conduct unlawful transactions with a Specially Designated Global Terrorist; and money laundering conspiracy.
The defendants, in this case, attempted to provide continued financial assistance to Hizballah, a foreign terrorist organisation responsible for death and destruction, and it was alleged that he had provided millions of dollars to Hizballah over the years, generated from his business activities in Belgium, Lebanon, Iraq and throughout West Africa.
The United States intends to seek Bazzi’s extradition to the Eastern District of New York (after he was arrested by Romanian law enforcement authorities upon his arrival in Bucharest on February 24, 2023) to face the charges in the indictment.
Each count in the indictment is punishable by up to 20 years imprisonment.33 In summary, the impact of terrorism on the United States has been significant, and the anti-terrorism laws and policies put in place in response have been a source of controversy, with some arguing that they infringe on civil liberties and civil rights.

UK Laws on Counter-Terrorism The United Kingdom faces a potentially greater terror threat than the United States.
In contrast to the United States, Britain endured the threat of terrorism throughout the Northern Ireland conflict, which resulted in 3,297 deaths, over 10,000 injuries, 35,798 shootings, 15,351 bombs, 32 ‘Country Reports on Terrorism 2020’ <https:// https://www.state.gov/reports/ country-reports-on-terrorism-2020> accessed 1 March 2023.

33 ‘Sanctions Evasion and Money Laundering Charges Unsealed Against Specially Designated Global Terrorist Mohammad Bazzi and Talal Chahine’ <https://www.
justice.gov/usao-edny/pr/sanctions-evasion-and-money-laundering-charges- unsealed-against-specially-designated> accessed 1 March 2023.
Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 209 21,049 armed robberies, and the discovery of 11,605 firearms and 115,517 kilogrammes of explosives.34 Hence, the basis for anti-terrorism laws is rooted in legislation passed at the time of the Troubles in Northern Ireland as before the 2000s, most attacks were linked to the Northern Ireland conflict, while during the late 20th century there were also attacks by Islamic terrorist groups.
Since the 1970s, thirteen (13) pieces of substantial legislation have been enacted to fight domestic and international terrorism, including laws concerning hostage-taking, the transport and use of nuclear materials, aviation and maritime security, and terrorist acts committed in Northern Ireland and on mainland Britain as part of the struggle for Irish nationalism.
These anti-terrorism measures were never intended to last permanently and always needed fresh parliamentary approval whenever they were amended or extended.

However, the Terrorism Act of 2000 expands existing counter-terrorist legislation and places it largely on a permanent basis.
In addition, since September 11, 2001, the Labour government has introduced six new significant pieces of anti-terror legislation.35 The Terrorism Act 2000 (TA) is the direct successor of decades of counter-terrorism laws in the United Kingdom and Northern Ireland.

It contains some new advanced measures alongside more common provisions, provides a wholly new definition of terrorism and repeals the PTA in the mainland United Kingdom and Northern Ireland.
Meanwhile, the power of the Secretary of State to prohibit or outlaw organisations is maintained, offences related to fund-raising, money laundering and supporting other forms of financial aid for terrorism are established, and the courts are given the authority to confiscate money or other property linked with terrorist offences, as well as the power to seize cash at borders.
The Terrorism Act also provides the police with additional investigative powers, including the power to demand customer information from financial institutions, notwithstanding any restriction on the disclosure of information imposed by statute or otherwise.

It retains official powers 34 Todd Landman, ‘Imminence and Proportionality: The U.S. and U.K.

Responses to Global Terrorism ‘ (2007) 38 Cal W Int’l LJ 75<https://scholarlycommons.law.cwsl.
edu/cgi/viewcontent.cgi?article=1115&context=cwilj> accessed 20 January 2023.

35 Todd Landman, ‘Imminence and Proportionality: The U.S. and U.K.

Responses to Global Terrorism ‘ (2007) 38 Cal W Int’l LJ 75<https://scholarlycommons.law.cwsl.

edu/cgi/viewcontent.cgi?article=1115&context=cwilj> accessed 20 January 2023.

210 Journal of the Malaysian Parliament to stop and detain persons at ports and borders and arrest and detain persons suspected of being involved in terrorist activities.
In the case of R v Zakaria Abdu Rahman Yanaouri,36 the suspect was detained by the authorities on the 11th of January 2020, whereby it was discovered that he possessed documents containing five issues of Rumiyah, the Daesh propaganda magazine.
Each of those contained an article in a section known as “Just Terror Tactics” that contravenes Section 58 of the Terrorism Act 2000 in that they contained instructional information likely to assist a person in the preparation of acts of terrorism and had materials that show Zakaria Yanaouri was sympathetic to and supportive of the teachings and propaganda of Da’esh.

Video images of beheadings and scenes of the execution of Da’esh captives were also discovered.
Zakaria Yanaouri pleaded guilty to all five counts and was sentenced to 32 months imprisonment on each count to run concurrently.

The Terrorism Act 2000 is later replaced by the Terrorism Act 2006, the latter of which creates a number of new offences, including the “direct or indirect encouragement or other inducements” of terrorism.37 UK Response to September 11th The UK Government responded promptly to the events of September 11.
In less than three months, it adopted an additional piece of anti-terrorist legislation known as the Anti-Terrorism, Crime and Security Act 2001 (ATCSA), which went far beyond any of its predecessors and led to a highly debated derogation from Article 5 of the ECHR barely two years after it had been incorporated into UK law.
In December 2001, Parliament passed the Anti-Terrorism Crime and Security Act 2001 (ATCSA), Part 4, which allowed the Home Secretary to order the indefinite detention of foreign terrorist suspects who could not be deported on the grounds that they faced a real risk of ill-treatment, contrary to Article 3 ECHR.

In order to do this, the government derogated Article 5 under the ECHR.38 36 ‘The Counter-Terrorism Division of the Crown Prosecution Service (CPS) – Successful prosecutions since 2016’ (Gov.
UK) <https://www.cps.gov.uk/crime-info/ terrorism/counter-terrorism-division-crown-prosecution-service-cps-successful- prosecutions-2016 >accessed on 27 February 2023.

37 The Terrorism Act 2006 listed out a number of new offences.

These new offences include the offences of encouragement of terrorism, dissemination of terrorist publications, an offence of the preparation of terrorist acts, and further terrorist training offences.
38 ‘Counter-terrorism and human rights’ (Justice) <https://justice.org.uk/counter- terrorism-human-rights> accessed 1 March 2023.

Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 211 The terrorist attacks have not stopped there.
In less than four years after the terrorist attacks on New York City and Washington, D.C., London faced sequences of successful terrorist attacks on July 7, 2005, followed by a series of unsuccessful attacks on July 21, 2005.39 On 7 July 2015, four suicide bombers struck London’s transport network, killing 52 people and injuring over 770 others.40 The UK Government has recognised that the extended detention powers in the ATCSA are incompatible with Article 5(1) of the ECHR in circumstances where persons are detained either with a view to deportation but without deportation proceedings International Legal Practitioner JUNE 2002 being commenced or without any prospect of criminal prosecution.
The UK Government has therefore derogated from the Convention.41 The Prevention of Terrorism Act 2005 In 2004, the House of Lords ruled by quashing a derogation order pertaining to Part IV of the ATCSA.

Instead of attempting to revise the Part IV powers, the government implemented a system of control orders known as POTA.
This Act is enacted to allow the Home Secretary to make “control orders” for people that are suspected of being involved in terrorism, including placing them under house arrest, restricting their access to mobile telephones and the internet, and requiring that visitors be named in advance, plus a requirement to cooperate with surveillance of the individual’s movements or communications, including electronic tagging.
In enforcing this Act, it draws a distinction between so-called ‘derogating’ and ‘non-derogating’ control orders.

Derogating orders permit the Home Secretary to impose house arrest but can only be issued if the government deviates from the ECHR.

Non-derogating orders do not permit the imposition of house arrest, but they can still involve extensive limitations on personal liberty.42 39 Todd Landman, ‘Imminence and Proportionality: The U.S. and U.K.
Responses to Global Terrorism ‘ (2007) 38 Cal W Int’l LJ 75<https://scholarlycommons.law.cwsl.

edu/cgi/viewcontent.cgi?article=1115&context=cwilj> accessed 20 January 2023.

40 ‘London bombings of 2005’(British Transport Police)<https://www.btp.police.uk/ police-forces/british-transport-police/areas/about-us/about-us/our-history/london- bombings-of-2005>accessed 24 February 2023.

41 Ben Brandon, ‘UK Legal Response to Terrorism: Past Lessons and Future Concerns‘ (2002) 27 Int’l Legal Prac 46.
42 ‘Counter-terrorism and human rights’ (Justice) <https://justice.org.uk/counter- terrorism-human-rights> accessed 1 March 2023.

212 Journal of the Malaysian Parliament Under the Control Orders regime, the Home Secretary was required to make a statement to Parliament every three months listing the number of measures in force.

The Act was repealed on 15 December 2011 by Section 1 of the Terrorism Prevention and Investigation Measures Act 2011.
Terrorism Prevention and Investigation Measures Act 2011 (TPIMs) This Act is introduced as a mechanism to replace the control orders whereby the Secretary of State may, by notice (a “TPIM notice”), impose specified terrorism prevention and investigation measures on an individual whom they have reason to believe is engaging in or has previously engaged in terrorism-related conduct under the Terrorism Prevention and Investigation Measures Act of 2011 (the TPIM Act).
With the introduction of this law, it repeals the control orders (Prevention of Terrorism Act 2005), outlining terrorism prevention and investigation measures, putting a higher standard on protecting the civil liberties of individuals, among others, setting a higher test for the measures to be imposed compared to the previous control orders, maximum time limit of two (2) years; imposing a more flexible curfew; and giving access to a mobile telephone and a computer with an internet connection to individuals subject to a control order.
It also guarantees the right to appeal for an individual against the refusal of a request to revoke or vary the measures, and leave of the high court shall be obtained in order to impose the measures.
It is said that the TPIM Act marked a key milestone in the government’s programme to rebalance intrusive security powers and increase safeguards for civil liberties.43 Counter-Terrorism and Sentencing Act 2021 The Act increases the maximum penalty for three terrorism offences from 10 to 14 years, which will require the Courts in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism or for the purposes of terrorism to actively consider whether the offence was committed with a terrorist connection and should be aggravated as 43 ‘Terrorism Prevention and Investigation Measures Act’ (Gov.
UK, 25 October 2016)Terrorism Prevention and Investigation Measures Act< https://www.gov.uk/ government/collections/terrorism-prevention-and-investigation-measures-act> accessed 27 February 2023.

Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 213 such.
At present, the Courts are only expressly required to consider this at the point of sentencing in relation to a defined list of non-terrorism offences set out in Schedule 1 of the Sentencing Code (for England and Wales) and Schedule 2 of the Counter-Terrorism Act 2008 (for Scotland and Northern Ireland).

Under this law, anyone convicted of a significant terror offence will no longer have the option of an early release; instead, they will be required to serve their whole sentence in prison.
The most serious criminals now face a minimum of 14 years in prison and a maximum of 25 years on a licence, with greater monitoring, for crimes including planning or carrying out acts of terrorism where lives were lost or in danger.44 The Act expands upon the emergency law that was passed in February 2020 in response to the terrorist attacks in Streatham and Fishmongers’ Hall,45 which retrospectively ended automatic early discharge for terrorists serving standard-definition sentences.
As a result, they had to serve at least two-thirds of their sentence in prison before being considered for release by the Parole Board.

Impacts of Counter-Terrorism Laws on Human Rights The United Kingdom has ratified a number of international treaties that require it to respect and implement various rights for its citizens and others under its control or jurisdiction, including the right to freedom of expression.
Article 10(2) of the European Convention on Human Rights guarantees the right to freedom of expression and the substance of which is given domestic effect through the provisions of the Human Rights Act 1998 (pre-Brexit).
The “direct or indirect encouragement or other inducement” of terrorism is one of the new offences added by the Terrorism Act of 2006, whereby the terminology used in the new legislation and policy is so ambiguous as not to meet the legal requirement that restrictions on freedom of expression be established.
Besides that, the court made a 44 Ministry of Justice, The Rt Hon Priti Patel MP, and The Rt Hon Robert Buckland KC MP ‘Longer jail terms and stricter monitoring as new terror laws gain Royal Assent’ (Gov.

UK, 29 April 2021) <https://www.gov.uk/government/news/longer- jail-terms-and-stricter-monitoring-as-new-terror-laws-gain-royal-assent accessed 25 February 2023.

45 ‘Terrorism Prevention and Investigation Measures Act’ (Gov.
UK, 25 October 2016)Terrorism Prevention and Investigation Measures Act< https://www.gov.uk/ government/collections/terrorism-prevention-and-investigation-measures-act> accessed 27 February 2023.

214 Journal of the Malaysian Parliament particular distinction on the point of particular Convention rights being breached.
Following Secretary of State for the Home Department v JJ,46 the House of Lords held that the restrictions imposed within the control measures would be open to challenge on the basis of incompatibility, with a focus on Art.

8 (right to privacy and family life), Art.

10 (freedom of speech), and Art.

11 (freedom of assembly).


In that case, the House of Lords held that the obligations imposed on six men under control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 (UK) (‘PTA’) deprived those men of their liberty in violation of Art.

5 of the European Convention on Human Rights (pre-Brexit).
In the leading majority judgment, Lord Bingham of Cornhill, citing Guzzardi v Italy,47 stated that deprivation of liberty may take numerous forms other than classic detention in prison or strict arrest.

In determining whether or not that individual has been deprived of liberty, the task of the court is to look at the ‘concrete situation’ of the individual concerned and assess the impact of the measures in question on a person in the situation of a person subject to them.
In practice, this meant that each respondent was effectively in solitary confinement for 18 hours every day.
The effect of the control orders on the respondents was held to be analogous to detention in an open prison.48 Another crucial issue is the application of the Principle of Proportionality in International Humanitarian Law, whereby it refers to the ways in which sovereign states ought to respond to attacks or the threat of attacks from other states, the ways in which states may intervene in an armed conflict on humanitarian grounds, as well as the ways in which they ought to conduct any armed action.
It is clear from A More Secure World49 that proportionality should be considered one 46 Secretary of State for the Home Department (Appellant) v. JJ and others (FC) (Respondents) [2007] UKHL 45.

47 Guzzardi v Italy (1980) 3 EHRR 333.

48 In a separate but concurring judgment, Lord Brown of Eaton-under-Heywood said: The borderline between deprivation of liberty and restriction of liberty of movement cannot vary according to the interests sought to be served by the restraints imposed.
The siren voices urging that it be shifted to accommodate today’s need to combat terrorism (or even that it be drawn with such a need in mind) must be firmly resisted.

Article 5 represents a fundamental value and is absolute in its terms.

Liberty is too precious a right to be discarded except in times of genuine national emergency.

None is suggested here.

49 Todd Landman, ‘Imminence and Proportionality: The U.S. and U.K.
Responses to Global Terrorism ‘ (2007) 38 Cal W Int’l LJ 75<https://scholarlycommons.law.cwsl.

edu/cgi/viewcontent.cgi?article=1115&context=cwilj> accessed 20 January 2023.

Volume 3 – 2023 Terrorism & The Overview on Impacts Towards Government Policies 215 of the five criteria used by states for making policy: the seriousness of the threat, proper purpose, last resort, proportional means, and balance of consequences.
At this stage, the concept of proportionality dictates that no governmental level should take any action beyond that required to achieve the objective of government.

It is crucial to relate the notion of proportionality to the social contract.

Citizens in a sovereign state consent to granting the government authority over them only to the extent required to maintain peace and order.
Otherwise, the state’s overreaction to both internal and external threats will undermine the social contract, compromise the state’s legitimacy, and may even motivate citizens to rebel violently against the state.50 The International Law of Human Rights also makes a clear distinction between derogable and non-derogable rights.
For instance, Article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which the United States and the United Kingdom are state parties- stipulates that in times of “public emergency that threatens the life of the nation,” certain rights protections cannot be eliminated, including the right to life (Article 6), freedom from slavery and servitude (Article 8), imprisonment for failure to uphold a contractual obligation (Article 11), protection against ex post facto legislation (Article 15), the right to legal personality and recognition (Article 16), and the right not to be subjected to arbitrary interference in privacy, home, and correspondence.
As for the United Kingdom, Article 15 of the European Convention on Human Rights (pre-Brexit) stipulates that during times of war or public emergency threatening the life of the nation, a country may not derogate from similar rights protections as those found in the ICCPR.
These examples suggest that there is indeed a lower boundary for curbing liberties below which countries may not go in their efforts to fight terrorism, even if such terrorist activities threaten the life of the nation.51 50 Todd Landman, ‘Imminence and Proportionality: The U.S. and U.K.

Responses to Global Terrorism ‘ (2007) 38 Cal W Int’l LJ 75<https://scholarlycommons.law.cwsl.

edu/cgi/viewcontent.cgi?article=1115&context=cwilj> accessed 20 January 2023.
51 Todd Landman, ‘Imminence and Proportionality: The U.S. and U.K.

Responses to Global Terrorism ‘ (2007) 38 Cal W Int’l LJ 75<https://scholarlycommons.law.cwsl.

edu/cgi/viewcontent.cgi?article=1115&context=cwilj> accessed 20 January 2023.

216 Journal of the Malaysian Parliament Conclusion Recent attacks in London, Paris, Berlin, and Madrid have intensified the fight against terrorism, which has long been a national concern in Western democracies.
From an examination of the legislation of three nations, namely Malaysia, the United States, and the United Kingdom, it is possible to conclude that all domestic legislation is intended to combat terrorism in its entirety.

True, eliminating terrorism is an ongoing process that cannot be accomplished overnight.

However, this is not an excuse for not making a serious effort to combat the issue.
This article provides a comparative analysis of three states’ current legislation and the effects of enacted laws, focusing on human rights issues.

In Malaysia, despite numerous criticisms regarding SOSMA, the House of Representatives obtained a simple majority vote on 26 July 2022, resulting in the continuation of the SOSMA sunset clause.

Combating terrorism should unquestionably be the top priority of the states.
However, a balance must be struck to create a harmonious integration between national security and the fundamental rights of individuals.

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