AUGUST 23 — There was a heated discussion on the missing radioactive device on BFM last Tuesday morning.

Apparently, the New Straits Times journalist had revealed "too much information” on the on-going case, which may inadvertently suggest ideas or the "right information to the wrong people”. As such, one who was previously clueless on what the device is for and its worth can now quickly understand its full potential and thereby estimate its black market value, all from just reading the NST article.

Nonetheless, perhaps the NST article was trying to live up to the aspirations of Malaysia Baharu: transparency.

More worrying though is what is actually not covered in the article. It is well understood that the safety and security of this radioactive device is under the regulatory control of Atomic Energy Licensing Board (AELB), the regulatory body responsible for all things atomic in Malaysia (in other words, our radioactive guards).

But what is safety and security that falls under the nuclear aspect? Nuclear safety is the protection of the public and the environment against radiation risk, and the safety of facilities and activities that give rise to radiation risk. Meanwhile nuclear security is prevention, detection and response to malicious acts that involves radioactive and nuclear material. Both nuclear safety and security goals is the same which is to protect human life, health and the environment.

In consequence to that, AELB derives its power and jurisdiction from the Atomic Energy Licensing Act 1983 [Act 304]. When one looks closely at Act 304, one cannot miss that the Act only governs the regulatory control of nuclear safety. In no direct way the Act covers the holistic scope of safety and security aspect of ALL atomic energy activities. As such, AELB does not actually have the full provision to govern nuclear security in this country. This is especially worrying when one consider the missing radioactive device and other similar nuclear-related equipment: all these devices should be regulated for both its safety and security, but Malaysia currently does not have the comprehensive legislation and regulatory framework to do so. Not only do we have a missing radioactive device, we also are missing the complete law to regulate its safety and security.

As an alternative, one may argue that Section 130B of the Penal Code (which covers offences relating to terrorism) sufficient to regulate nuclear security as it criminalizes the use of radioactive device (and any other similar equipment) for criminal purposes. However, the Penal Code is only applicable if the device falls under the interpretation of "explosive or other lethal device”. Additionally, in order to be charged under the said Code, the offence must be evidentiary where you need to prove the "mens rea” (the intention or knowledge of wrongdoing that constitutes part of a crime) and "actus reus” (action or conduct which is a constituent element of a crime).

The author is of the opinion that nuclear security of radioactive device (and any other similar equipment) should not be limited to instances when it is used for criminal purposes or when there is an element of terrorism. As nuclear security encompasses multifaceted countermeasures to prevent nuclear terrorism -including the protection of nuclear facilities and materials, the author asserts that Section 130B of the Penal Code insufficient to regulate nuclear security in this country.

The ideal principal law to cover the Nuclear 3S (safety, security, and safeguards) should ensure that any user of these radioactive materials must follow a set of requirements that shall assure the safe, secured and safeguarded use and transport of the said materials for its peaceful purposes. The law shall then equip AELB, with staff who are IAEA-trained and knowledgeable in handling of these materials, to have the principal 3S authority in regulating these nuclear-related activities. This will assure that the public and environment can be protected from the harmful effects of ionizing radiation.

Since the Act 304 was introduced thirty four years ago in 1984, it worryingly, does not fully guarantee this; and has remained static while the world embraces the 3S requirement in regulating nuclear-related activities. It is thus as clear as the sun that there is a "lacuna” (gap) in the law. While the currently missing radioactive device is the first such incident under Malaysia Baharu, it may possibly not be the last and there is even a possibility that this could even escalate further. As such, the Ministry of Energy, Science, Technology, Climate Change and Environment (MESTECC) which patrons the AELB must quickly look into the issue holistically by consulting advices from unbiased technical experts and, subsequently, seriously re-assess the current gaps in our nuclear 3S-related legal and regulatory framework so that we will be in line with the international best practice and standards.

In light of the lax procedures and requirements in the tracking, transport and security of radioactive devices that goes missing, a MESTECC’s position and policy cohesive on atomic energy activities and the roles of related agencies must be stated clearly.

This is especially important when one considers that Malaysia is an important regional transit and transhipment hub. Therefore, Malaysia needs to urgently address the lack of comprehensive legal and regulatory framework to regulate, holistically the safety and security aspect of all atomic energy activities and address this important question "Quis custodiet ipsos custodes?” (Who will guard our guards?)

* Najwa Hassan is an energy activist and also happen to be a member of Women in Nuclear and International Nuclear Law Association.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.